Wildomar City Council
November 8, 2023

within their department subject to the provisions in this rule and approval by the City Manager.

The City Council shall select the City Manager. The City Manager, or designee, shall select the Department Heads, Assistant City Manager, Deputy City Manager and Assistant to the City Manager. These positions may be filled by the method selected by the City Council or the City Manager to obtain the best candidate for the position. The provisions of this rule are inapplicable to the filling of vacancies listed in this paragraph.

B. Announcement of Vacancies/Acceptance of Applications. When a position becomes vacant, the applicable Department Head shall notify the Personnel Officer. All positions shall be publicized by such methods as the Personnel Officer deems appropriate. The announcements shall specify the title and pay range of the class; the nature of the work to be performed; the experience and education requirements; the knowledge, skills, and abilities desirable for the performance of the work; how to apply; the application deadline date; that a post- offer, pre- employment physical examination is required, which may include a drug test; that upon receiving a conditional offer of employment, a criminal background check is required through the submission of fingerprints; and other relevant information.

Applications will be available on the City’s website.

C. Disqualification of Applicants. The Personnel Officer may reject any application which indicates on its face that the applicant does not possess the minimum qualifications required for the position, or because the applicant has failed to timely submit the application, fully complete the application, or submit all required materials.

D. Ineligibility for Employment. Further examination or consideration for employment of any applicant may be discontinued, and any employment of any person may be terminated, when any of the following has been determined by the Personnel Officer:

1. The individual does not meet the minimum qualifications established for the class or position to which they seek appointment;

2. The individual has made a false statement, misrepresentation, or omission of material fact, or actual or attempted deception, fraud or misconduct in connection with their application;

3. The application shows on its face that the applicant is physically or psychologically restricted from performing the essential functions of the position applied for, and the City determines that no reasonable 391
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accommodation can be made for such medical restrictions in the position applied for;

4. An employment history or personal conduct which demonstrates a lack of fitness for City employment, including dismissal for cause from prior public or private employment;

5. The individual has failed to submit a complete application within the prescribed time limit;

6. The individual has directly or indirectly obtained information regarding examinations to which applicants are not entitled;

7. The individual has been convicted, including pleas of guilty and nolo contendere, of any felony or misdemeanor, which was of such a nature as to reflect adversely and substantially on the applicant’s ability to perform the duties of the position. The City Manager, or designee, may disregard such convictions of felonies or misdemeanors if it is found and determined by the City Manager that mitigating circumstances exist. In making such determination, the City Manager may consider the classification, including sensitivity, to which the person is applying or being certified and whether the classification is unrelated to the conviction; the nature and seriousness of the offense; the circumstances surrounding the offense; the length of time elapsed since the conviction; the age of the person at the time of conviction; the presence or absence of rehabilitation or efforts at rehabilitation; and/or contributing social or environmental conditions.
a. Unless otherwise required by law, the City will not ask an applicant for employment to disclose, orally or in writing, information concerning the conviction history of the applicant, until the City has issued a conditional offer of employment.
b. Applicants who receive a conditional offer of employment may be requested to complete a supplemental form regarding criminal conviction history for review by the City, and a background screening, as part of the application process. The Human Resources and Risk Manager will conduct an individual assessment, as may be required by law, for each applicant who has prior convictions before determining whether to disqualify the applicant and rescind the conditional offer of employment.

8. The individual has otherwise violated provisions of these Rules.

In addition, applicants with the least desirable background or qualifications among a large number of applicants may be denied further participation in the selection process through an evaluation of their qualifications, thus providing a reasonable number of the best qualified candidates for consideration. 392
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Applicants disqualified from further participation in the selection process will be promptly notified to permit submission of additional information provided that the time limit for receiving applications has not expired. Notice will be mailed to the last known address and/or will be emailed to the email address provided by the applicant on the applicant’s application; it will be the applicant’s responsibility to keep the applicant’s current physical address and email address on file. Whenever an application is rejected, the Personnel Officer will mail and/or email notice of such rejection to the applicant.

E. Selection Process. The selection process shall be impartial and relate to those subjects which, in the opinion of the Personnel Officer, fairly measure the relative capacities of the applicants to execute the duties and responsibilities of the class to which they seek to be appointed. The selection process may include but is not necessarily limited to achievement, aptitude, and other written tests, personal interview, performance tests, physical agility tests, evaluation of daily work performance, work samples, criminal background check (after the City has determined that the applicant meets the minimum qualifications of the position), medical tests (possibly including a drug test), successful completion of prescribed training, or other selection techniques as determined by the Personnel Officer. The selection process shall be designed to provide equal opportunity to all candidates by being based on an analysis of the essential requirements of the class, covering only factors related to such requirements. The City also retains the right to conduct a thorough background check of each applicant.

The Personnel Officer may enter into a contract with any competent agency or individual for the preparing and/or administering portions of the selection process.

If the Personnel Officer does not contract these duties to an agency or individual, then the Personnel Officer shall ensure that such duties are performed.

F. Creation of Eligibility List. As soon as possible after the completion of a recruitment, the Personnel Officer shall prepare and maintain an eligibility list consisting of the names of candidates who qualified as finalists. Eligibility lists shall remain in effect for up to 6 months unless the Personnel Officer abolishes the eligibility list after determining that the abolition of the list is in the best interest of the City. The name of any person appearing on an eligibility list shall be removed by the Personnel Officer if the person requests in writing that their name be removed or if the person fails to respond to a notice of certification mailed to the last designated physical address or emailed to the last designated email address. Persons on eligibility lists as a result of an internal recruitment who leave the service of the City for any reason shall automatically be dropped from such lists.

G. Physician's Examination. Applicants may be required to submit to a physician's examination at the City's expense upon being made a conditional offer of employment. As set forth in more detail in the City’s Drug-Free Workplace Policy, the physician's examination shall include a drug and alcohol test for positions that are (1) safety-sensitive; or (2) involve a position of influence over children. When a drug and alcohol test is required, applicants shall be made aware of that in the announcement published under Rule VI.B. No job commitment shall be made until 393
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a negative drug screen result is obtained and a physician has certified that the applicant is medically qualified to perform the essential functions of the position.

When the applicant reports to the medical facility for the scheduled examination, personal identification shall be provided to the facility in the form of a photograph and verifiable signature (for example, a driver's license). All test results will be kept confidential. The applicant will be told whether the tests were passed or failed, but only the Personnel Officer and his or her assistant will have access to the test results. If required, the drug/alcohol examination shall be administered in accordance with the City's Drug-Free Workplace Policy.

RULE VII. APPOINTMENTS
A. Appointment of New Employee. The hire date of a new employee shall be that of the first day actually worked.

B. Provisional Appointments. It shall be the policy of the City to require all Department Heads and other appointing authorities, whenever possible to notify the Personnel Officer, of impending or anticipated vacancies in their departments sufficient in advance so as to allow for the establishment of an appropriate eligibility list.

However, when the demands of the services are such that it is not practicable to give such notification and if it is not practicable to delay appointment until a new eligibility list can be certified, the appointing authority may make a provisional appointment to the position, in accordance with the following:

1. As soon as practicable, but not longer than six months after a provisional appointment has been made, the Personnel Officer may cause an examination to be prepared, and all positions filled provisionally shall be filled by an appointment from an eligibility list.

2. A person appointed to a position on a provisional basis shall not be entitled to credit for the time served under the provisional appointment toward if the employee is awarded the position on a non-provisional basis.

3. No special credit shall be allowed in any examination or the establishment of any eligibility lists for services rendered under a provisional appointment.

4. Except as otherwise required by law, a provisional appointee will not be entitled to the rights and benefits afforded to employees under these Rules.

5. Except for retired annuitants, no person shall be employed by the City under provisional appointment for a total of more than six months in any fiscal year except that the Personnel Officer may extend the period of any provisional appointment for not more than 90 days by any one action; provided; however, no provisional appointment shall cause any person to work more than 960 hours (if paid on an hourly basis) or 125 days (if paid on a per diem basis) in a fiscal year.

6. A person who has retired from a CalPERS employer (“retired annuitant”) may only be appointed to a provisional appointment when all of the following 394
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conditions are met, unless otherwise allowed by CalPERS during extenuating circumstances:
a. The City can show the retired annuitant has previous experience and the skill set needed to perform the work required.
b. The appointment is made to fill a vacant position during the recruitment to permanently fill the vacancy, or during an emergency to prevent stoppage of public service. A recruitment to permanently fill the vacant position must be open before the retired annuitant is appointed.
c. Retired annuitants cannot begin employment before the 181st day after their retirement date, unless the City certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days has passed, and the City Council approves the appointment in a public meeting. The appointment may not be placed on a consent calendar.
d. If the retired annuitant is under the normal retirement age, he or she must have a bona fide separation in service. Further, the retired annuitant must not have received unemployment insurance payments for retired annuitant work with any public employer within the 12 months prior to the date of the provisional appointment, and he or she must certify to this in writing to the City.
e. A retired annuitant may only be appointed once to the position.

Provisional appointments of retirees must specify a beginning date and an end date for the appointment, and the appointment term must not result in the retired annuitant working more than a combined 960 hours in a fiscal year for all CalPERS employers. If a retired annuitant works more the 960 hours in a fiscal year, he or she must be reinstated. The Personnel Officer may not extend any provisional appointment of a retired annuitant, and must ensure the retired annuitant does not exceed the 960 hours limit.
f. The rate of pay for the retired annuitant must fall within the monthly rate of pay range for the vacant position, and he or she may not receive any other benefit, incentive, compensation in lieu of benefits, or other form of compensation in addition to this base rate.

The City ensures the retiree is enrolled as a retired annuitant with CalPERS and that the pay rate and hours worked by the retired annuitant are reported to CalPERS.

C. Acting Appointments to a Higher Class. Acting appointments may be used to fill positions that are vacant or that are temporarily vacant, such as when an employee is on an extended leave of absence.. . Where applicable, upon the return of the incumbent from leave or disability, the acting appointment shall be immediately 395
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terminated, and the appointee shall resume regular duties, compensation and privileges as if the appointee had continued their duties in their regular classification. Acting appointments shall be subject to the following:

1. Whenever the needs of the City require an employee to temporarily perform the duties of a higher classification than that in which the employee is currently employed for a period of more than twelve (12) consecutive working days, the employee shall receive the salary rate of the higher class in which the employee is performing the required duties. In such cases, the employee shall be paid at an appropriate step of the current salary schedule of the higher classification which will assure an increase of not less than 5% greater than the salary of the employee’s current position, but in no case shall such salary exceed the top salary step of the higher classification.

The higher salary rate payable shall commence on the thirteenth working day following the temporary reassignment to the performance of duties of the higher classification. The requirement for the performance of duties of the higher classification shall be placed in writing by the City Manager, or the City Manager’s designee, following recommendation by the affected Department Head. No employee shall be required to perform any of the duties of a higher classification unless that employee is deemed to possess the minimum qualification of the higher classification by the City Manager, or the City Manager’s designee, as recommended by the affected Department Head.

2. In no case shall an employee serve as an acting appointee more than 960 hours in a fiscal year or six (6) total months, whichever comes first, in a higher classification.

3. An employee appointed in an acting capacity shall be eligible to receive performance increases in the permanent position during the acting appointment but shall not be entitled to performance increases in the position which the employee holds in an acting capacity.

4. The City Manager, or the City Manager’s designee, shall obtain the employee’s written consent for the temporary performance of any of the duties of the higher classification beyond a period of twelve (12) working days, prior to an employee assuming or continuing the duties and compensation of a higher classification, which consent shall clearly state that it is understood that employee’s salary rate will revert to the salary rate in the employee’s permanent position upon the expiration of the need for the performance of the duties of the higher classification.

D. Emergency Appointment. To meet the immediate requirements of an emergency condition, the Department Head, or any persons so authorized in advance by the City Manager, may employ such persons as may be needed for the duration of the emergency without regard to these Rules. As soon as possible, such employment will be reported promptly to the Administrative Services Director or designee.

Emergencies are defined as fire, flood, earthquake, or other public calamity, which 396
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threatens life or property. The emergency appointee shall be considered a temporary employee and, except as otherwise required by law, shall not be entitled to the rights and benefits afforded to employees under these Personnel Rules. In the event that a Retired Annuitant is hired as an emergency employee, the appointment and employment of the Retired Annuitant will be governed by the applicable statutes and regulations of CalPERS or other applicable retirement system, to the extent such provisions remain in effect during the emergency. In the event that the City’s rules and procedures on provisional employment are inconsistent with the applicable statutes and regulations governing the employment of retired annuitants, the statutes and regulations shall control.

E. Reinstatement. With the approval of the Personnel Officer, an employee who has completed at least 12 months of service and who has resigned in good standing may be reinstated within one year of the effective date of resignation to a vacant position in the same or comparable class. For purposes of reinstatement, "good standing" shall mean that the employee was not terminated for cause under these Rules, did not resign in lieu of termination, provided the required amount of notice of resignation, and was evaluated at least as "fully meets job standards" or an equivalent rating on the employee’s last performance evaluation. No credit for former employment shall be granted in computing salary, vacation, sick leave, retirement benefits, or other benefits except on the specific written direction of the Personnel Officer at the time of reinstatement. Such reinstatement action may, at the discretion of the Personnel Officer, take precedence over any eligibility list except a reemployment list. An individual requesting reinstatement is required to successfully complete a background examination and physician’s examination, as set forth in Rule VI.

F. Reemployment. An employee may be appointed from a reemployment list following layoff.

G. Promotion. It is the policy of the City to fill authorized vacant positions based on merit. Insofar as consistent with the best interest of the City, vacancies may be filled by promotion. All employees meeting the qualifications standard of a higher- grade position under the same or different job classification may be considered for promotion. Employees promoted to a new position will start at the salary step determined appropriate by the City Manager. The date of promotion will become the employee’s new anniversary date for performance review and merit salary increase purposes. Employees receiving promotions will be reviewed after six months, one year, and annually thereafter.

H. Demotion. The City Manager may voluntarily or involuntarily demote an employee.

No employee will be demoted to a position for which the employee does not possess the minimum qualifications. An employee may also request a voluntary demotion. An employee who possesses the minimum qualifications, may request a voluntary demotion to a lower position. An employee requesting a voluntary demotion will submit a memorandum to the employee’s Department Head requesting a voluntary demotion and detailing the reasons for the request. Upon receipt of the request for voluntary demotion, the Department Head will notify the 397
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City Manager. If the request for voluntary demotion involves a change from one department to another, both Department Heads must consent thereto unless the City Manager orders the demotion. The employee’s anniversary date will change to the effective date of the demotion. Demoted employees will have their salary reduced accordingly to the appropriate salary range. Salary determinations for demoted employees are solely within the discretion of the City Manager.

I. Transfer. The Personnel Officer may transfer an employee from one position to another in the same class or a comparable class at the same salary level. While the Personnel Officer retains the right to order the transfer, consideration will be given to the affected employee's and the Department Head’s wishes.

J. Interactive Process Transfer. As part of the interactive process and in accordance with state and federal law, an employee who is unable to perform the essential functions of the employee’s present classification may be placed in a vacancy in another class that does not result in a promotion if the employee can perform the essential functions of the vacant position, with or without reasonable accommodation.

RULE VIII. NEPOTISM AND CONSENSUAL ROMANTIC RELATIONSHIPS

BETWEEN EMPLOYEES
A. Nepotism.

1. Definitions.
a. Applicant. A person who applies for a position at the City and is not a Current Employee.
b. Change of Status. A change in the legal status or personnel status of one or more Current Employees.
i. Changes in legal status include but are not limited to marriage, divorce, separation, or any such change through which a Current Employee becomes a Family Member or ceases to be a Family Member of another Current Employee.
ii. Changes in personnel status include but are not limited to promotion, demotion, transfer, resignation, retirement or 398
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termination of a Current Employee who is a Family Member of another Current Employee.
c. Current Employee. A person who is presently a City employee, or an elected or appointed City official.
d. Direct Supervision. One or more of the following roles, undertaken on a regular, acting, overtime, or other basis shall constitute Direct Supervision:
i. Occupying a position in an employee’s direct line of supervision; or
ii. Functional supervision, such as a lead worker, crew leader, or shift supervisor; or
iii. Participating in personnel actions including, but not limited to, appointment, transfer, promotion, demotion, layoff,
suspension, termination, assignments, approval of merit increases, evaluations, and grievance adjustments.
e. Family Member. A spouse, domestic partner, parent, parent-in-law, step-parent, legal guardian, sister, step-sister, sister-in-law, brother, step-brother, brother-in-law, child, step-child, legal ward, daughter- in- law, son-in-law, grandchild, grandparent, niece, nephew, spouse’s nice, spouse’s nephew, domestic partner’s niece, or domestic partner’s nephew.
f. Prohibited Conduct. Conduct by Family Members including, but not limited to, one or more of the following:
i. Participation directly or indirectly in the recruitment or selection process for a position for which a Family Member is an
Applicant.
ii. Direct Supervision of a Family Member that does not comply with limitations set forth in this Section;
iii. Conduct by one or more Family Members that has an adverse effect on supervision, safety, security or morale.

2. Department Head Authority. Department Heads are authorized to make initial determinations under this Rule. Should the Department Head be related to the employee/applicant in question, the City Manager shall appoint another Department Head to execute the responsibilities under this Rule.

3. Applicants for Employment.
a. No qualified Applicant may be denied the right to file an application for employment and compete in the examination process. However, 399
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consistent with this Section, the City may reasonably regulate, condition, or prohibit the employment of an Applicant for a full-time position.
b. Disclosure of Relationship. Each Applicant is required to disclose the identity of any Family Member who is a Current Employee. c. Review of Department Head. For each Applicant who has a Family Member who is a Current Employee, the Department Head shall assess whether any of the following circumstances exist:
i. Business reasons of supervision, safety, security or morale warrant the City’s refusal to place the Applicant under Direct Supervision by the Family Member; or
ii. Business reasons of supervision, security, or morale that involve potential conflicts of interest or other hazards that are greater for Family Members than for other employees, which warrant the City’s refusal to permit employment of Family Members in the same department, division, or facility.
d. Decision of the Department Head. If the Department Head determines that either of the above circumstances exist, the Department Head shall exercise his or her discretion to either reject the Applicant or consider the Applicant for employment in a position that does not present either of the above circumstances. i. Following examination, if the Applicant is successfully certified as eligible pursuant to Rule VI, he or she may be employed in a position for which the Department Head has determined that neither circumstance exists pursuant to Rule VII.A.3.c. ii. When an eligible Applicant is refused appointment by virtue of this Rule VI, his or her name shall remain on the eligibility list for openings in the same classification. For each opening, the Department Head shall make a determination consistent with Rule VII.A.3.c.

4. Guidelines for Current Employees.
a. Employees shall report a Change of Status to the Department Head within a reasonable time after the effective date of the Change of Status. Wherever feasible, Employees shall report a Change of Status in advance of the effective date.
b. Within thirty days from receipt of notice, the Department Head shall undertake a case-by-case consideration and individualized assessment of the particular work situation to determine whether the 400
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Change of Status has the potential for creating an adverse impact on supervision, safety, security, or morale.
i. The Department Head shall make a good faith effort to regulate, transfer, condition or assign duties in such a way as to minimize potential problems of supervision, safety, security, or morale.
ii. Notwithstanding the above provisions, the City retains the right to exercise its discretion to determine that the potential for creating an adverse impact on supervision, safety, security, or morale cannot be sufficiently minimized and to take further action as set forth in Rule VII.A.5.b.

5. Monitoring by Department Head.
a. Following a Change of Status or new hire of a Family Member, affected Department Heads shall reasonably monitor and regulate both Family Members’ conduct and performance for a period of one year from the date of the Department Head’s determination. The Department Head shall document these actions. Successive Department Heads may re-visit such a determination at their discretion.
b. If the Department Head determines, subject to any applicable requirements of due process, that an employee has engaged in Prohibited Conduct, the Department Head shall reevaluate the Department Head’s prior determination, and may take one or more of the following additional measures:
i. Transfer one of the Family Members to a similar position that would not be in violation of this policy. The transfer will be granted provided the Family Member qualifies and there is an opening to be filled. There can be no guarantee that the new position will be within the same classification or at the same salary level.
ii. If the situation cannot be resolved by transfer, one of the Family Members must separate from City employment. If one of the employees does not voluntarily resign, the employee with primary responsibility for the Prohibited Conduct will be discharged.
c. Department Heads who receive complaints from other employees that one or more Family Members has engaged in Prohibited Conduct 401
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shall respond in accordance with existing complaint and disciplinary procedures, where applicable.
d. Where situations exist prior to the effective date of this Section that may be in conflict with this Section, every effort shall be made to reasonably address the situation so as to avoid any future conflict.

6. Appeal of Department Head Determination. Current Employees and Applicants affected by the application of this Section, may appeal the action of the Department Head to the City Manager within ten days of the action.

The City Manager shall hear the individual’s concerns and issue a written decision within 30 days of the receipt of the individual’s appeal. The decision of the City Manager is final, and no other appeal may be had unless the employee is entitled to further administrative appeal under other provisions of these Rules.

7. Employee Complaints. Employees who believe that they have been adversely affected by Prohibited Conduct by one or more Family Member should submit complaints to a Department Head or to the Personnel Officer.

8. Savings Clause. Should any provision of this Section, or any application thereof, be unlawful by virtue of any federal, state, or local laws and regulations, or by court decision, such provision shall be effective and implemented only to the extent permitted by such law, regulation or court decision, but in all other aspects, the provisions of this Section shall continue in full force and effect.

B. Consensual Romantic Relationships Between Employees.

1. General. Consensual romantic or sexual relationships between City employees can lead to misunderstandings, complaints of favoritism, adverse effects on employee morale, and possible claims of sexual harassment during or after termination of the relationship. As a result, such relationships present existing or potential conflicts that adversely affect efficient operation of the City. Relationships that present an actual conflict under this Section are therefore prohibited.

2. Application. This section shall apply to all City employees, regardless of gender or sexual orientation, who have a romantic or sexual relationship 402
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with another City employee. The provisions of Section A of this rule regarding nepotism shall govern employees who marry or become domestic partners with another City employee.

3. Definition of Conflict. For purposes of this section, a conflict exists if business issues of supervision, safety, security, and/or morale would be impacted by a romantic or sexual relationship between two employees.

4. Supervisor’s Duty to Report. If a romantic or sexual relationship exists between a Supervisor and another employee (including another Supervisor), the Supervisor shall promptly disclose the relationship to the Personnel Officer and request a determination as to whether the relationship presents a conflict. The disclosure must identify the names and positions of both employees. A Supervisor’s failure to comply with this section shall be grounds for discipline up to and including termination.

5. Determination by City Manager. Within five working days, the City Manager shall issue a written determination as to whether the relationship presents a conflict, and is thereby prohibited. The City Manager shall have exclusive discretion in making the determination.

6. Resolution of Conflicts. Subject to limitations imposed by the Municipal Code and applicable provisions of these Rules, the City Manager will attempt in good faith to work with the Supervisor and the other employee to consider options to eliminate the conflict, including removing the Supervisory authority that created the conflict, reassignment, transfer or voluntary demotion of a Supervisory employee, or where the City Manager determines that modification of a Supervisor’s assignment is not feasible, reassignment, transfer or voluntary demotion of a non-Supervisory employee. The City Manager retains discretion to determine that the conflict may be resolved via voluntary resignation or termination only.

7. Prohibited On-Duty Conduct. All City employees are prohibited from engaging in intimate, physical, or other conduct in furtherance of a romantic or sexual relationship with another City employee at work locations, including off-site meetings, conferences, and similar activities. Moreover, upon termination of a sexual or romantic relationship with another City employee, employees are prohibited from engaging in behavior that adversely affects the working conditions of any City employee. In general, all employees are expected to observe appropriate standards of workplace conduct in their interactions with other City employees.

8. Complaints. Employees who believe that they have been adversely affected by romantic or sexual relationships between City employees should follow the complaint procedures provided under the City’s Policy 403
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Against Harassment, Discrimination, and Retaliation. The complaint procedures are available to all employees regardless of their past or present participation in a romantic or sexual relationship with another City employee.

RULE IX. REPORTS AND RECORDS
A. Maintenance of Personnel Files. A personal history folder shall be kept for each employee. Confidential medical records will be maintained in a separate file from other personnel files. The personnel history folders shall be maintained by the Human Resources and Risk Manager or designee, and shall contain a record of date of employment, promotions, performance reviews, disciplinary actions and such other information as the City Manager, or City Manager’s designee, shall prescribe. All performance related entries to personnel history folders shall be brought to the attention of the employee.

B. Review and Access of Personnel Files. Personnel records are confidential and, unless otherwise required by law, access to personnel records will be limited to current or former employees, authorized representatives of current or former employees, and authorized representatives of the City. Rights to access, inspect, and copy personnel records, as well as applicable procedures and limits upon such rights shall be consistent with the law.

C. Current Address. Employees are required to notify the Human Resources and Risk Manager of any change of name, address, or telephone number within five calendar days of change.

D. References. Any employee who receives a request for a personal reference by a former or current employee is required to forward that request to the Administrative Services Director and seek direction. Only the City Manager and the Administrative Services Director or their designees are authorized to provide references for former or current employees on behalf of the City. No other employee is authorized to provide such written or verbal references or recommendations for former or current employees. Further, no other employee is authorized to respond to questions from persons outside the City about former or current employees regarding their work performance.

E. Destruction of Records. Upon approval of the City Attorney, records relating to personnel may be destroyed as prescribed by law
RULE X. PERFORMANCE EVALUATIONS
A. Policy. It is the policy of the City that regular evaluations be made as to the efficiency, competency, conduct and merit of its employees. To this end, it is the responsibility of the City Manager, the Department Heads and their subordinate supervisors that these evaluations be made. It is the responsibility of the Personnel Officer to provide and prescribe the forms and procedures to be used in such evaluations of performance and to assist in the training of supervisory personnel so 404
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that the program of performance evaluation will be carried on in a sound and effective manner.

B. Authority to Make Evaluations. The City Manager or their designee shall have the authority to prepare performance evaluations. The City Manager, or designee may, however, delegate such authority to such subordinate supervisory employees who are most familiar with work of the employees to be evaluated, provided that the City Manager, or designee, shall review and approve all performance evaluations of personnel under their jurisdiction.

C. Time for Performance Evaluation. An annual performance evaluation may be prepared and received before the employee's salary anniversary date, and shall evaluate the employee's performance in the last year. If the employee receives a rating of (or equivalent to) "improvement needed" or "unsatisfactory" in the employee’s annual performance evaluation, their supervisor shall be responsible for conducting an additional performance evaluation three months from receiving such rating and again three months subsequent to that. In addition, the employee may be given a performance evaluation at any other time during the year at the discretion of the appointing authority.

D. Postponement of Performance Evaluation. Unless otherwise required by law, the use of any leave of absence in excess of 30 consecutive days shall cause the date of the employee's performance evaluation to be extended by the same period of time that the employee was absent.

E. Review with the Department Head. A performance evaluation must be submitted for review by, and be approved by, the Department Head before the performance evaluation is provided to or discussed with an employee.

F. Review with Employee. Each performance evaluation shall be presented by the supervisor who prepared it and discussed with the employee. The employee shall sign the evaluation to acknowledge its contents. Such signature shall not necessarily mean the employee endorses the content of the evaluation. Employees may not appeal or grieve the contents of a performance evaluation or the rating(s) received by the employee. Employees who disagree with the contents of their performance evaluation shall have the right to attach a written statement explaining the basis of their disagreement to the performance evaluation.

G. Retention of Performance Evaluation. After review and approval of the appointing authority, the performance evaluation, as well as any written statement provided by the employee, shall be made a part of the employee's personnel file. 405
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H. Effects of "Improvement Needed" and "Unsatisfactory" Ratings.

1. Any employee who receives an "unsatisfactory" or "improvement needed" rating will not be eligible to be appointed off of any eligibility list until a satisfactory rating is established.

2. Any employee who receives an "unsatisfactory" or "improvement needed" rating will not receive any merit salary increase during the period following the report, except as provided in Rule IX.H.3.

3. If an employee who has been denied a merit salary increase improves their performance to such an extent that the appointing authority believes a merit salary increase is now justified, the appointing authority shall indicate the improvement on a report of performance form and may specifically award a merit salary increase. Additionally, in awarding the merit salary increase under this subsection, the appointing authority may change the merit salary increase anniversary date to the date of the award of the merit salary increase or may permit the anniversary date to remain the same. Any merit salary increase awarded under this subsection shall not be made retroactive.

RULE XI. WORKWEEK, HOURS OF WORK AND OVERTIME
A. FLSA Classification. The Personnel Officer shall designate those positions which are exempted from the provisions of the Fair Labor Standards Act ("FLSA") based on an assessment of the duties of each position. This designation will be expressed in the job description for the position.

B. Work Schedules and Workweek.

1. The City Work Schedules include a standard 5/8 schedule and an alternative 4/10 schedule.
a. Alternative 4/10 Workweek and Work Schedule.
i. The City has adopted a 4/10 work schedule for most
employees, which consists of ten hours per day, four days per week.
ii. Employees assigned to work a 4/10 work schedule will work Monday through Thursday with Fridays off. At the direction of the City Manager, some employees may be required to work a different schedule due to the requirements of their job classifications or department responsibilities.
iii. The workweek for employees assigned to a 4/10 work schedule shall be seven consecutive days, 12:00 a.m. on Saturday and ending at 11:59 p.m. on the following Friday. 406
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Time worked by non-exempt employees in excess of 40 hours in a workweek shall constitute overtime.
b. Standard Workweek and Work Schedule.
i. The standard 5/8 work schedule consists of eight hours per day, five days per week.
ii. Employees assigned to work a standard work schedule will work Monday through Friday. At the direction of the City Manager, some employees may be required to work a different schedule due to the requirements of their job classifications or department responsibilities.
iii. The workweek for employees on the standard work schedule shall be seven consecutive 24-hour periods, starting at 12:00a.m. on Saturday and ending at 11:59 p.m. on the
following Friday. Time worked by non-exempt employees in excess of 40 hours in a workweek shall constitute overtime.

C. Daily Hours of Work/Shifts. Daily hours of work or shifts for employees within departments shall be assigned by Department Heads as required to meet the operational requirements of such departments. The City reserves the right to regulate and/or change the designation of the specific hours or days to be worked by any employee, and no such change in the scheduling of days or hours worked shall be deemed to constitute overtime, provided the total number of hours and days does not exceed those specified as constituting the standard work year, work period, work week and workday hereunder.

D. Changes in Work Schedules. The City reserves the right to establish and modify work schedules in order to meet the varying needs of the different City departments. Except in the case of an emergency, Department Heads must provide employees with reasonable notice before changing an employee’s work schedule. If the needs of the City require that a position be assigned to work a different work schedule or have a different workweek than set forth in this section, the City Manager, in consultation with the Department Head, may designate the work schedule and workweek for employees in that position in writing. Any additional alternative workweeks shall be designated by administrative policy adopted by the City Manager.

E. Meal Periods. Non-exempt employees are entitled to unpaid meal periods during which they shall be entirely relieved of responsibilities and restrictions. Such time shall not constitute hours worked.

1. Non-exempt employees shall be entitled to a 60-minute unpaid meal period during each work shift which equals or exceeds 8 hours; non-exempt 407
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employees shall be entitled to a 30-minute unpaid meal period during each work shift which exceeds 5 hours but is less than 8 hours.

2. Supervisors shall schedule meal periods to ensure appropriate coverage.

3. Employees shall take reasonable measures wherever feasible to avoid the need for work to be performed during meal periods. Where required, time spent on such work shall be kept to a minimum, and may only occur with the prior written authorization of a Department Head. Non-exempt employees who work during their meal periods shall be paid for time worked.

F. Rest Periods. Except where unusual operational demands prevent a rest break, non-exempt employees are entitled to two 15-minute paid rest periods during each work shift which equals or exceeds 8 hours, or one 15-minute paid rest period during each work shift which equals or exceeds 4 hours, but is less than 8 hours.

Rest periods shall not be combined or added to employees’ meal periods. Rest periods shall also not be added to the beginning or end of an employee’s shift.

G. Overtime. Non-exempt employees shall be entitled to overtime at the rate of one and one-half of their regular hourly rate of pay for each hour worked in excess of 40 hours in any one workweek. Employees are not entitled to compensatory time off in lieu of overtime. Exempt employees are not eligible to receive overtime compensation.

1. Calculation of Hours Worked. For the purposes of overtime compensation, "hours worked" shall only include those periods of time that the employee is required to be on duty or to be on the City's premises or at a prescribed workplace, and all time during which an employee is suffered or permitted to work. As such, paid time off, including for example, time spent on a paid leave of absence, sick leave, holidays and vacation, shall not be included in the calculation of hours worked.

2. Approval of Overtime. It is the policy of the City to avoid the necessity for overtime work whenever possible. Employees shall take reasonable measures wherever feasible to avoid the need for work to be performed outside of their regularly scheduled shifts.

Employees shall not perform work outside of their regularly scheduled shifts or in excess of 40 hours in a workweek unless requested to do so by their Department Head or with advance written authorization from their Department Head. This requirement applies to, but is not limited to:
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a. Work performed before the start of the shift;
b. Work performed during meal periods;
c. Work performed after the end of the shift; and
d. Other work performed "off the clock" including work performed at home.

Time spent on such work outside an employee’s regularly scheduled shift shall be kept to a minimum. Department Heads are required to notify the Finance Department of any approved overtime at the end of the workday in which overtime is worked. The City will compensate employees for all hours worked as required by law, including overtime hours worked without approval from the pertinent Department Head. However, employees that work overtime without receiving prior approval as required under this section, may be subject to disciplinary action, up to and including, termination of employment.

RULE XII. LEAVES OF ABSENCE
A. Effect of Leave of Absence.

1. Effect of Leave of Absence on Employment Benefits.
a. Fully Paid Leave. Unless otherwise required by law, an employee on a leave of absence who continues to receive full compensation through the use of their accrued leave banks will continue to receive full employment benefits. Such employment benefits may include, but are not limited to, the accrual of paid leaves, accrual of seniority, and cafeteria contributions which remain at the rate the employee would receive if the employee was working their normal work schedule. b. Partially Paid Leave. Unless otherwise required by law, an employee on a paid leave of absence who is receiving less than full compensation from the City through the use of the employee’s accrued paid leaves shall receive a prorated share of their employment benefits, including, but not limited to, the accrual of paid leaves, cafeteria contributions, or supplemental pay.
c. Unpaid Leave. Unless otherwise required by law, an employee on an unpaid leave of absence shall not accrue any employment benefits, including, but not limited to, the accrual of paid leaves, accrual of seniority, cafeteria contributions, and supplemental pay.

2. Effect of Leave on Performance Evaluations and Merit Increases. Unless otherwise required by law, the use of any leave of absence in excess of 30 consecutive days shall cause the date of the employee's performance 409
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evaluation, and merit increase, if relevant, to be extended by the same period of time that the employee was absent.

B. Unauthorized Absences. Any employee absent from their job for more than three consecutive working days without prior permission of the Department Head may be considered to have voluntarily resigned from their employment with the City. Any unauthorized absence may be cause for disciplinary action as provided in these personnel rules.

C. Holidays.

All full time employees are eligible to receive holidays under this section. Part-time employees that were hired before September, 1, 2023 are eligible for holiday leave under this section. Part-time employees hired on or after September 1, 2023, and temporary employees are not eligible for holiday leave under this section.

1. Holidays Observed for Employees on a 5/8 Work Schedule. As provided in Section B.1.b. of Rule XI above, employees working a 5/8 work schedule, that are regularly scheduled Monday through Friday of each week with occasional Saturdays, shall receive 8 hours of pay for holidays observed and recognized under this subsection. Such employees are entitled to the following days as recognized and observed paid holidays:
a. New Year's Day (January 1)
b. Martin Luther King Jr. Day
c. Presidents' Day
d. Memorial Day
e. Independence Day (July 4)
f. Labor Day
g. Veterans Day (November 11)
h. Thanksgiving Day
i. Day after Thanksgiving Day
j. Each working day of the last calendar week of each calendar year, commencing December 24 and ending December 31

2. Holidays Observed for Employees on a 4/10 Work Schedule. As provided in Section B.1.a. of Rule XI above, employees working a 4/10 work schedule, that are regularly scheduled Monday through Thursday of each week, shall receive 10 hours of pay for holidays observed and recognized under this subsection, if such holidays are observed on Monday, Tuesday, Wednesday, or Thursday. Such employees shall not receive holiday pay for 410
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holidays observed on a Friday. Such employees are entitled to the following days as recognized paid holidays, so long as the observed day falls on Monday, Tuesday, Wednesday, or Thursday:
a. New Year's Day (January 1)
b. Martin Luther King Jr. Day
c. Presidents' Day
d. Memorial Day
e. Independence Day (July 4)
f. Labor Day
g. Thanksgiving Day
h. Each working day of the last calendar week of each calendar year, commencing December 24 and ending December 31

3. List of Dates Holidays are Observed. In December of each year, the City Manager will send a list of observed holiday dates for the following calendar year. When a holiday falls on a Saturday, it shall be observed on the Friday immediately preceding the holiday. When a holiday falls on a Sunday, it shall be observed on the Monday immediately following the holiday. The City also observes the last week of each calendar year as a holiday by closing City hall and providing employees with holiday pay for each working day of the closure.

D. Vacation.

1. Full-time employees in all classifications shall accrue vacation, on a daily basis, and vacation accrues on a pro rata basis during each pay period.

Except as otherwise approved in writing by the City Manager, vacation leave shall accrue according to the following schedule:
a. From the date of hire through five years of service: 80 hours per year.
b. Beginning the sixth year through 10 years of service: 120 hours per year.
c. Beginning the 11th year of employment: 160 hours per year.

2. The maximum number of vacation hours that may be accumulated by an employee is 320 hours. Once an employee reaches the maximum 411
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accumulation, the employee shall cease vacation accrual until their total number of vacation hours falls below the maximum allowable.

3. A maximum of 80 hours of vacation per calendar year may be converted to compensation and shall be paid at the employee's rate of pay at the time of the conversion with a balance of 40 hours payable up to twice a year, per the budgetary schedule. Each employee eligible for vacation benefit under this section shall make an election no later than December 31 of each calendar year, as to whether the employee wishes to cash out vacation accrued and unused during the subsequent calendar year. Such election is irrevocable. If an employee fails to make an election as required by this subsection, such failure will be treated as an election to not cash out vacation accrued and unused during the subsequent calendar year.

4. At termination of employment for any reason, the City shall compensate the employee for the employee's accumulated, but unused, vacation time at the employee's base rate of pay at the time of termination.

5. If a holiday falls on a work day during an employee's vacation period, that day shall be considered as a paid holiday and not vacation time.

6. Vacations may be scheduled at any time during the year upon approval of the City Manager or their designee.

7. Part-time employees hired after September 1, 2023 are not eligible for vacation leave.

E. Sick Leave for Full-Time Employees.

1. Applicability. This section applies to full-time employees.

2. Definitions.
a. Family Member. Family Member shall include any of the following: a biological, adopted, or foster child, stepchild, legal ward, a child to whom the employee stands in loco parentis, or a child of a domestic partner, regardless of the child’s age or dependency status; a biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child; a spouse; a registered domestic partner; a grandparent; a grandchild; a sibling; and a father-in-law, mother-in- law, sister-in-law, brother-in-law, or a designated person, which, for purposes of this section, means a person identified by the employee at the time the employee requests paid sick days. The City may limit an employee to one designated person per twelve (12) month period. 412
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Exceptions to this definition shall be reviewed and possibly approved by the City Manager.

3. Sick Leave Accrual. Commencing on their first date of employment, employees shall earn eight (8) hours of Sick Leave per month of full-time service which shall accrue on a pro rata basis during each pay period (approximately 3.69 hours on bi-weekly basis). Employees shall be compensated for using Sick Leave at their regular rate of pay for the workweek in which the employee uses Sick Leave, whether or not the employee actually works overtime in that workweek, on the payday for the next regular payroll period after the Sick Leave was taken.

4. Carryover and Cap on Accrued Sick Leave. Unused Sick Leave shall be carried over from calendar year to calendar year with a maximum Sick Leave bank of 320 hours. Once an employee’s Sick Leave bank reaches maximum accrual, the employee shall cease Sick Leave accrual until the total number of Sick Leave hours falls below the maximum allowable.

5. Permitted Uses of Sick Leave. Upon the verbal or written request of an employee, the City shall permit eligible employees to use earned Sick Leave for the following purposes:
a. Diagnosis, care, or treatment of an existing health condition of, or preventative care for, an employee or an employee’s family member. b. For employees who are victims of domestic violence, sexual assault, or stalking, taking time off to obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child.
c. For employees who are victims of domestic violence, sexual assault, or stalking, taking time off to seek medical attention for injuries caused by the domestic violence, sexual assault, or stalking; to obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence, sexual assault, or stalking; to obtain psychological counseling related to an experience of domestic violence, sexual assault, or stalking; and to participate in safety planning and take other actions to increase safety from future 413
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domestic violence, sexual assault, or stalking, including temporary or permanent relocation.

6. Work-related Injury or Illness. When an injury or illness is job-related, the employee shall be charged with Sick Leave usage only to the extent that their salary is not covered by worker's compensation.

7. Request for Sick Leave.
a. An employee shall contact his or her immediate supervisor prior to or within one hour of the commencement of their work shift, or as soon as practicable, to report the need for Sick Leave for a Permitted Purpose. If no immediate supervisor is available, an employee shall contact his or her department head. Consideration shall be given to emergency situations that restrict the employee from contacting his or her immediate supervisor within the first hour of work including, but not limited to: accident, injury, or hospitalization.
b. If the need for Sick Leave unforeseeably arises at an employee’s work site, the employee shall notify his or her immediate supervisor before the employee leaves the work site due to a Permitted Purpose prior to completion of the work shift, or as soon as practicable. c. Employees are not responsible for finding other employees to cover shifts due to their use of Sick Leave.

8. Verification of Continuing Need for Sick Leave. In cases where an employee uses Sick Leave for four or more consecutive days, the City Manager or supervisor may require verification that the Sick Leave is needed for a Permitted Purpose.

9. Minimum Increments of Sick Leave. The minimum charge to an employee’s Sick Leave account shall be one-half hour, and will be rounded up to the next half hour. For example, an employee who is gone from work for two hours and ten minutes will be charged two and one-half hours of Sick Leave.

10. Notice of Available Sick Leave. An employee’s paystub will display the amount of available Sick Leave.

11. No Lending of Sick Leave. The City will not lend or advance Sick Leave to any employee prior to accrual.

12. Reinstatement of Unused Sick Leave. Any unused Sick Leave at separation shall be reinstated upon return to active status with the City occurring within no more than 12 months of separation. The employee shall be entitled to use the reinstated Sick Leave and to accrue additional Sick Leave upon 414
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rehiring. Use of any reinstated Sick Leave is governed by the provisions in Section XII.E.5 of these Rules.

13. Records Documenting Hours Worked and Sick Days Accrued and Used.

The City shall keep records documenting the hours worked and Sick Leave earned and used by an employee for the maximum duration required by law.

14. Employee Inspection of Records Pertaining to Sick Leave. Upon reasonable request, and within 21 calendar days after the request, the City shall afford current and former employees the right to inspect or copy records pertaining to their hours worked and paid sick days accrued and used.

15. Partial Cash Out of Sick Leave Upon Termination and CalPERS Service Credit Conversion upon Retirement .
a. Executive Level Employees. Executive employees will be permitted to cash out part of their sick leave upon termination in accordance with this section. Unless an executive employee is terminated for cause, as defined in Section V.N.2, the City shall compensate the executive employee for 50% of the executive employee's
accumulated, but unused, sick leave at the executive employee's base rate of pay at the time of termination. Executive employees retiring at separation from employment with the City may receive CalPERS service credit for accrued unused sick leave consistent with the City’s contract with CalPERS. However, sick leave that is converted to CalPERS service credit cannot be included in the partial cash out.
b. All Other Employees. Employees, other than executive employees, will be permitted to cash out part of their sick leave upon termination in accordance with this section. Employees shall become eligible for this partial cash out of sick leave upon completion of five years of continuous service with the City. Unless an employee is terminated for cause, as defined in Section V.N.2, the City shall compensate the employee for 50% of the employee’s accumulated, but unused, sick leave at the employee’s base rate of pay at the time of termination.

Employees retiring at separation from employment with the City may receive CalPERS service credit for accrued unused sick leave consistent with the City’s contract with CalPERS. However, sick leave that is converted to CalPERS service credit cannot be included in the partial cash out.

16. Abuse of Sick Leave. Employees who do not comply with this section, including providing insufficient notice of sick leave or using sick leave for reasons other than for a Permitted Purpose, are committing abuse of sick leave, which is grounds for discipline, up to and including termination. The City reserves the right to take reasonable steps to determine whether an employee is abusing sick leave, including, but not limited to, requiring a doctor’s note or other relevant documentation, attempting in-person or 415
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electronic communication with the Employee using sick leave, identifying and tracking consistent patterns of sick leave use, such as in connection with weekends, holidays, and scheduled days off, and considering social media content or other relevant evidence that is either publicly available or shared voluntarily by other employees or interested individuals.

F. Sick Leave for Part-Time and Temporary Employees

1. Applicability. This section applies to part-time and temporary employees.

The City provides paid sick leave to part-time and temporary employees as required under California law.

2. Definitions.
a. Hours Worked. Hours worked shall include all time when a part-time or temporary employee is required to be on duty or to be on the City’s premises or at a prescribed workplace, and all time when a part-time or temporary employee is suffered or permitted to work. Paid sick time is not considered time worked.
b. Family member means any of the following: a child (which means a biological child, adopted child, foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. This definition of a child is applicable regardless of age or dependency status), a parent (which means a biological parent, adoptive parent, foster parent, stepparent, legal guardian of an employee or registered domestic partner, or person who stood in loco parentis when the employee was a minor child), a spouse, a registered domestic partner, a grandparent, a grandchild, a sibling, or a designated person (which means a person identified by the employee at the time the employee requests paid sick leave. The City limits the employee to one designated person per 12-month period for paid sick leave).

3. Paid Sick Leave.
a. Eligibility for Sick Paid Sick Leave. Part-time and temporary employees are eligible for paid sick leave after they work for the City for at least thirty (30) days within a calendar year. Part-time and temporary employees who work fewer than thirty (30) days within a calendar year are not eligible for paid sick leave.
b. Accrual of Paid Sick Leave. Part-time and temporary employees shall accrue paid sick leave at the rate of one (1) hour for every thirty (30) hours worked.
c. Qualification Period Prior to Use of Paid Sick Leave. Part-time and temporary employees are entitled to use their accrued paid sick leave only after completing ninety (90) days of employment. Part-time and 416
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temporary employees who work fewer than 90 days are not entitled to take any paid sick leave.
d. Notice of Accrued Paid Sick Leave. All accrued paid sick leave will be reflected on each part-time and temporary employee’s paystub, including the balance of paid sick leave available. Accrual and balance information is also available via the City’s electronic timesheet system.
e. No Advance of Paid Sick Leave. The City will not “advance” or “lend” paid sick leave to a part-time or temporary employee before it has been accrued.
f. Sick Time Rate of Pay. Part-time and temporary employees shall be compensated for paid sick leave at their regular rate of pay for the position and schedule in which paid sick leave is utilized. g. Annual Paid Sick Leave Use Limit. Part-time and temporary employees may use up to 40 hours of accrued paid sick leave during a calendar year.
h. Accrued Paid Sick Leave Carry-Over. Unused paid sick leave may be carried over from calendar year to calendar year with a maximum paid sick leave bank of 80 hours.
i. Minimum Increments Paid Sick Leave. The minimum charge to a part-time or a temporary employee’s paid sick leave account shall be 30 minutes per work day.
j. Permitted Use of Sick Leave. Upon the oral or written request of a part-time or a temporary employee, the City shall permit the part-time or temporary employee to use accrued paid sick leave for the following purposes:
• Diagnosis, care, or treatment of an existing health condition of, or preventative care for, an employee or an employee’s family member.
• Part-time and temporary employees who are victims of crime or abuse may take time off as paid sick leave to obtain or attempt to obtain any relief. Relief includes, but is not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the employee or their child.
• Part-time and temporary employees who are victims of crime or abuse may take time off as paid sick leave to seek medical attention for injuries caused by crime or abuse; to obtain services from a domestic violence shelter, program, rape crisis center, or victim services organization or agency as a result of the crime or abuse; to obtain psychological counseling or mental 417
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health services related to an experience of crime or abuse; or to participate in safety planning and take other actions to increase safety from future crime or abuse, including temporary or permanent relocation.
k. Request for Use of Paid Sick Leave.
• A part-time or temporary employee shall contact the employee’s immediate supervisor prior to or within one hour of the commencement of their work shift to report the need for paid sick leave. If no immediate supervisor is available, an employee shall contact the Department Head. Consideration shall be given to emergency situations that restrict the employee from contacting the employee’s immediate supervisor within the first hour of work including, but not limited to: accident, injury, or hospitalization. In such emergency situations, an employee shall contact the employee’s supervisor as soon as practicable. • If the need for paid sick leave unforeseeably arises, such as at a part-time or temporary employee’s work site, the part-time or temporary employee shall notify the employee’s immediate supervisor before leaving the work site or as soon as
practicable.
• When a part-time or temporary employee has advance notice of the need for paid sick leave, such as when scheduling non- emergency medical and dental appointments, the part-time or temporary employee is required to notify the employee’s supervisor at least three (3) days in advance of the employee’s need for paid sick leave. Part-time and temporary employees are encouraged to schedule medical and dental appointments outside normal working hours if possible.
• A part-time or temporary employee is not responsible for searching for or finding another employee to cover the
employee’s shift in order to use paid sick leave.
l. Unused Paid Sick Leave. No part-time or temporary employee shall be compensated for, or allowed to exhaust any accrued paid sick leave upon resignation, including retirement, termination, layoff, or death.
m. Reinstatement of Unused Paid Sick Leave. Unused accrued paid sick leave at termination shall be reinstated upon return to active status occurring within no more than twelve (12) months of termination. For part-time or temporary employees who return to the City within twelve (12) months from their previous separation, days worked prior to the previous separation will count toward the ninety (90) day qualification period.
n. Paid Sick Leave Accrual Upon Promotion to Full-Time Employee Status. If a part-time or temporary employee is promoted to full-time 418
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employee, the employee’s accrued paid sick leave shall remain intact and will thereafter be subject to section XI.E. governing accrued paid sick leaves for full-time employees.
o. Records Documenting Hours Worked and Paid Sick Leave Accrued and Used. The City shall keep records documenting the hours worked and paid sick leave accrued and used by a part-time or temporary employee for three (3) years.
p. Employee Inspection of Records Pertaining to Paid Sick Leave. Upon reasonable request to the City’s Human Resources Department, and within twenty-one (21) calendar days after the request, the City shall afford current and former part-time and temporary employees the right to inspect or copy records pertaining to their hours worked and paid sick leave accrued and used.

G. Bereavement Leave.

1. Eligibility and Available Leave. An employee is eligible to receive leave under this section if the employee has been employed by the City for at least thirty days prior to commencement of leave. If an employee loses an immediate family member, as defined in this section below, the employee will be allowed to take up to five (5) days of leave per death. Leave days under this section need not be consecutive, but shall be completed within three months of the date of death of the immediate family member. The City may request verification of death as permitted under the law.

2. Pay While on Leave. Each employee is eligible to receive up to 40 hours of pay per year while on bereavement leave as provided in this section G.

These 40 hours of pay for bereavement leave shall not be chargeable to any other leave balance. Once an employee exhausts available pay under this section, such employee may use other available accrued paid leave to receive pay during additional bereavement leave.

3. Immediate Family Member. For purposes of this section, immediate family shall mean father, father-in-law, mother, mother-in-law, stepparent, brother, brother-in-law, sister, sister-in-law, spouse, domestic partner, child, grandparent, grandchild, legal guardian or legal ward.

H. Military Leave. Military leave with or without pay shall be granted in accordance with Section 395 of the California Military and Veteran's Code and the Uniformed Services Employment and Reemployment Rights Act. In addition, leave for military exigency or military caregiver shall be granted in accordance with the Family and Medical Leave Act, as set forth in the City's FMLA/CFRA/PDL Administrative Policy.
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I. Jury Duty.

1. An employee summoned for jury duty will immediately notify the employee’s department head. While serving on a jury, an employee will be given a leave of absence with pay for up to ten days of jury duty. Such leave of absence with pay is conditional upon the employee returning to work upon their dismissal each day to complete their normal work day, as required at the employee’s department head’s sole discretion. Employees who fail to return to work, as required by their department head, are required to use other accrued paid leaves for that period of the employee's absence. Such leave is also conditional upon the employee's conveyance to the City of any compensation received as a juror, not including any travel allowance received.

2. An employee required to serve on a jury for longer than ten days may elect to use any accrued paid leaves, other than sick leave, for the time spent on jury duty after the ten days of jury duty paid leave have been exhausted. An employee is not required to convey compensation received as a juror in this circumstance.

J. Pregnancy Disability Leave. Employees who are disabled due to pregnancy, childbirth, or related medical conditions shall be granted leave in accordance with the full provisions governing such leave set forth in an administrative policy.

K. Family Care and Medical Leave. Employees shall be granted family care or medical leave in accordance with the Family Medical Leave Act and the California Family Rights Act. The full provisions governing such leave will be set forth in an administrative policy.

L. Leave of Absence Without Pay. In accordance with the procedures in this section, a temporary unpaid leave of absence for a defined period may be considered because of illness or disability, or for other reason deemed acceptable at the City’s sole discretion.

1. Exhaustion of Paid Leaves.
a. Non-medical Leave of Absence Without Pay. An employee requesting leave under this section for nonmedical reasons is required to fully exhaust all of t h e i r paid leaves, except sick leave, in order to be eligible to receive a leave of absence without pay.
b. Medical Leave of Absence Without Pay. An employee requesting leave under this section for medical reasons is required to fully exhaust all of their paid leaves, including sick leave, in order to be eligible to receive a leave of absence without pay.

2. Accrual of Benefits. Leave of absence without pay shall not be construed as a break in service or employment, and rights accrued at the time leave is granted shall be retained by the employee; however, vacation credits, sick 420
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leave credits, increases in salary and other similar benefits shall not accrue to a person granted such leave during the period of absence. An employee reinstated after leave of absence without pay shall receive the same step in the salary range the employee received when they began t h e i r leave of absence. Time spent on such leave without pay shall not count toward service for increases within the salary range, and the employee's salary anniversary date shall be set forward by an amount equal to the days of unpaid leave taken by the employee.

Failure of the employee to return to their employment upon the termination of any authorized leave of absence shall constitute an automatic termination from City service of that employee, unless such leave is extended.

M. Management Leave. As compensation for the unique nature of their jobs, the City provides Management Leave to executive classification employees and management classification employees, such classifications are listed in Appendix A to these Rules and are subject to modification from time to time at the City’s sole discretion, as follows:

1. Employees in the executive classification shall receive 80 hours of management leave per fiscal year.

2. Employees in the management classification shall receive 60 hours of management leave per fiscal year.

Management leave shall be credited and vest on July 1st of each year. New eligible employees shall be credited with a prorated number of management leave hours based on the number of months remaining in their first fiscal year as an eligible employee. One day worked in a particular month shall be considered as qualifying for that month.

Management leave cannot be carried forward from year to year, and any unused leave will be cashed out on June 30th of each year. Employees may not receive cash out of unused management leave at separation from City employment.

N. Fitness for Duty Leave.

1. Purpose/Policy. Employees are expected to report to work fit for duty, which means able to perform their job duties in a safe, appropriate, and effective manner, free from adverse effects of physical, mental, emotional, and/or personal problems. This Rule is intended to provide a safe environment and protect the health and welfare of employees and the public. If an employee 421
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feels unfit to perform their duties, the employee must notify their supervisor immediately.

2. Reasons for Fitness for Duty Leave. In the discretion of the City, an employee may be placed on a paid Fitness for Duty Leave and a fitness for duty examination may be ordered in any of the following situations:
a. An employee returns from a medical leave of absence of more than five working days.
b. An employee is involved in the interactive process with the City under Rule III.C.
c. Supervisor observes or receives a reliable report of an employee’s possible lack of fitness for duty. Observations and reports may be based on, but are not limited to, employee’s own self-report of potential unfitness, dexterity, coordination, alertness, speech, vision acuity, concentration, response to criticism, interactions with the public, co-workers, and supervisors.
d. Fitness for duty examinations based on a reasonable suspicion that an employee is under the influence of illegal drugs or alcohol shall be conducted in accordance with the City’s Drug-Free Workplace Policy.

3. Procedures for Ordering a Fitness for Duty Examination. When a supervisor becomes aware of or observes behavior that makes the supervisor reasonably suspect that an employee may not be fit for duty, the supervisor shall confer with the Personnel Officer to discuss the supervisor’s basis for the reasonable suspicion that the employee may not be fit for duty. After such conference between the supervisor and the Personnel Officer, the Personnel Officer, may request the supervisor to refer the employee to the Personnel Officer who will determine whether a fitness for duty examination is necessary and should be scheduled. If the circumstances warrant it, the Personnel Officer may place the employee on a paid or unpaid leave pending the results of the employee’s fitness for duty examination. The examination shall be paid for by the City.

4. Procedure Following Receipt of Examination Results. The doctor examining the employee shall be limited to finding the employee “fit for duty” or “fit for duty with restrictions” or “unfit for duty.” In the case of finding an employee fit for duty, the doctor may issue work restrictions. In no case shall the doctor reveal the underlying cause of the fit or unfitness for duty without the employee’s permission.
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a. Fit for Duty. If the doctor finds the employee is fit for duty, the employee shall return to work immediately and perform all duties of their position.
b. Fit for Duty with Restrictions. If the doctor finds the employee is fit for duty with restrictions, the doctor shall specifically list what restrictions are necessary and for how long those restrictions are necessary. If the employee’s restrictions are based on a disability as defined by the ADA and/or FEHA, the City shall engage in the interactive process as set forth in Rule III.C. The City shall then evaluate those restrictions and determine if the restrictions can be reasonably accommodated. c. Unfit for Duty. If the employee is found to be unfit for duty, the employee shall not be permitted to work. The Employee may request a leave of absence in accordance with the appropriate subsection of this Rule. If the employee can provide certification of fitness for duty prior to the exhaustion of all paid and unpaid leave that the employee is entitled to under these Rules, the employee shall be returned to work. However, if such certification is from the employee’s own health care provider, the City may request a second opinion from a doctor of its choosing and at its cost to evaluate the employee under the requirements of this section. If the two certifications conflict, a third opinion will be sought from a doctor chosen by the City and the employee, at the expense of the City. The opinion of fit or unfit rendered by the third doctor shall be binding. If the employee’s restrictions are based on a disability or a medical condition as defined by the ADA and/or FEHA, the City shall engage in the interactive process as set forth in Rule III.C.

O. Voting Leave. The City encourages eligible employees to register and vote in all federal, state and local elections. Employees of the City are expected to vote prior to or following their assigned working hours. In accordance with the Election Code, Sections 14000 and 14001, if a registered voter employee does not have sufficient time outside regular working hours within which to vote at statewide elections, the employee may take off such working time as will enable the employee to vote. A maximum of two hours may be taken with pay. To receive time off for voting, the employee must notify the employee’s Department Head in advance. Employees who need Voting Leave, must take such leave at the beginning or end of the employee’s work shift, based on the needs of the Department and the employee’s schedule. The exact amount of time off work and the scheduling of time off shall be decided between the employee and the employee’s Department Head. Employees who use Voting Leave are required to present a voter’s receipt to their Department Heads.

P. Subpoenaed Absence. An employee who is subpoenaed or otherwise required under a court order to provide testimony as a witness, may receive the employee’s regular pay during the employee’s absence, whether such subpoena is related or unrelated to City business. An employee who receives a “Summons or Subpoena 423
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to Appear” for witness duty, must provide reasonable advance notice to the employee’s supervisor and human resources and provide a copy of the original summons to human resources.

Q. Personnel Action Leave. The City has the right to place an employee on leave at any time with full pay. An employee may be placed on personnel action leave pending investigation of misconduct, potential disciplinary action, or other reasons that the City Manager, in City Manager’s discretion, believes warrant such leave. A personnel action leave shall not have any negative effect on the employee’s benefits. Personnel action leave may also be referred to as “Relief of Duty.” An employee assigned to personnel action leave shall be required to be available by phone during the employee’s regular working hours. In addition, employees on a personnel action leave are prohibited from entering City facilities or property or communicating with City employees, except to the extent that non-employees may access City facilities, property, or employees. The City Manager may place other reasonable restrictions on an employee during the period of personnel action leave.

R. School Leave. The City will grant a leave of absence to an employee who is the parent, guardian, or grandparent of a child, in accordance with the following provisions.

1. Permissible Purposes:
a. To participate in the activities of the child’s primary or secondary school or licensed child care provider;
b. To find, or to enroll, or reenroll the child in, a primary or secondary school or licensed child care provider.
c. To address an emergency, such as:
i. A request from child care provider or school that the child be picked up.
ii. A provision in the attendance policy for the child care provider or school, other than a planned holiday, that prohibits the child from attending.
iii. Closure or unexpected unavailability of the child care provider or school, other than during planned holidays.
iv. A natural disaster, including, but not limited to, fire, earthquake, or flood.
d. To appear at the school of a suspended child pursuant to a request made by the child’s school under California Education Code section 48900.1.
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2. An employee may take up to 40 hours of leave per calendar year, but no more than eight hours in one calendar month. However, no limit shall be placed on the amount of leave taken under Section (R)(1)(d) of this rule. If more than one City employee requests leave in connection with the same child, only the first employee to provide notice is entitled to receive leave.

The second employee may also be permitted to take a simultaneous leave of absence if the second employee obtains written supervisory approval.

The amount of leave available is fixed at a maximum of 40 hours per calendar year, regardless of the number of children, grandchildren, or wards that an employee may have.

3. An employee must provide reasonable advance notice of the need for leave and must make all reasonable efforts to schedule the leave so as not to unduly disrupt the operations of the City. If an emergency makes such notice impossible, the employee shall notify the employee’s Department Head as soon as possible. Employees returning from leave are required to provide written verification from the school or child care provider of the employee’s need for leave at the specific time and date. If an employee fails to provide sufficient verification, the City may determine that the leave time was unauthorized.

4. Leave under this section is unpaid. However, an employee may choose to use any accrued vacation time when taking leave under this section.

RULE XIII. ATTENDANCE
A. Attendance. Employees will be in attendance on time at their workstation or location in accordance with the rules regarding hours of work, holidays, and leaves.

Employees will make every effort to schedule personal appointments outside their working hours. Employee adherence to the rules governing attendance, leaves of absence and tardiness will be reviewed and evaluated during the employee’s annual performance evaluation. All supervisors/managers will keep track of employee attendance records, which will be reported to Administrative Services by approval of electronic timesheets.

B. Tardiness. It is the responsibility of the employee to arrive at work on or before the assigned time each day. If for some reason beyond the control of the employee, it is not possible for the employee to come to work on time, arrangements in advance with the Department Head must be made at the earliest possible time. In no case will repeated tardiness be tolerated.

C. General Absences. Pre-authorized vacations, authorized paid/unpaid leaves of absence due to bona fide illness or injury, jury duty, bereavement, or other City 425
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leaves are the only types of absences permitted. All others will be considered a violation of these Rules.

D. Unauthorized Absences. An employee who is absent for a full shift without notification or authorization may subject to disciplinary action, up to and including, termination of employment.

RULE XIV. LAYOFF/SEPARATION/RETIREMENT
A. Layoff. Whenever, in the judgment of the City Council, it becomes necessary to abolish any position or employment, the employee holding such position or employment, may be laid off without disciplinary action and without the right of appeal, unless otherwise required by law. The City Manager shall determine the class and number of positions within each class to be affected, as well as the effective date of the layoff.

1. Notification. Employees to be laid off shall be given, whenever possible, at least 14 days prior notice.

2. Order of Layoff. In each class of position, employees shall be laid off according to the needs of the service as determined by the Department Head and the Personnel Officer.

3. Reemployment List. The names of persons laid off or demoted in accordance with this section shall be entered upon a reemployment list.

Lists from different departments or at different times for the same class of position shall be combined into a single list. Such list shall be used by every Department Head when a vacancy arises in the same or lower class of position before certification is made from an eligible list or starting a recruitment. Names of persons laid off shall be carried on a reemployment list for one year, except that persons appointed to a position of the same level as that which laid off, shall, upon such appointment, be dropped from the list. Persons who refuse reemployment shall be dropped from the list.

Persons reemployed in a lower class, or on a temporary basis, shall be continued on the list for the higher position until a full year lapses following the layoff or demotion under this section.

B. Resignations. Employees may resign at any time. However, the City requests that resigning employees file a written resignation stating the effective date and reason(s) at least two weeks prior to leaving the City's service. The resignation date should be the last day the employee actually worked.

C. Terminations. The City may terminate any employee at any time with or without cause and with or without notice.

D. Retirement/Disability Retirement. In accordance with the City's contract with the California Public Employees' Retirement System (CaIPERS), employees who meet the age and service credit minimums may qualify for a service retirement from CaIPERS. Under CaIPERS laws, an employee who is unable to perform their job 426
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because of an illness or injury which is expected to be permanent or last indefinitely, may be entitled to receive a disability retirement.

RULE XV. ETHICAL STANDARDS
A. Outside Employment, Enterprise, or Activity. In accordance with California Government Code section 1125 et seq., no employees may engage in any outside employment, enterprise, or activity that is inconsistent, incompatible, in conflict with, or adverse to the employee’s employment, their ability to perform their duties and responsibilities, including performance of overtime work and emergency duties, or any other aspect of City operations.

1. Employees are required to notify their Department Head in writing of all outside employment in which they are engaged, regardless of when that outside employment began, so that the City may assess whether such outside employment conflicts with the employee's City employment. An employee's outside employment, enterprise, or activity will be prohibited when any of the following are present:
a. It involves the use for private gain or advantage of their City time, facilities, equipment and/or supplies; or the badge, uniform, prestige, or influence of their City employment;
b. It involves the receipt or acceptance by the employee of any money or other consideration from anyone other than the City for the performance of an act which the employee, if not performing such act, would be required or expected to render in the regular course or hours of their City employment or as part of their duties as a City employee;
c. It involves the performance of an act, in other than their capacity as a City employee, which may later be subject directly or indirectly to the control, inspection, review, audit, or enforcement of any other officer or employee of the City; or
d. It involves the time demands as would render performance of their duties as a City employee less efficient.

2. When outside employment is reported to a Department Head, the Department Head shall determine whether the employee's outside employment conflicts with the performance of their duties, and shall advise the employee of their determination in writing. An employee who is unsatisfied with the decision of the Department Head may appeal the decision to the City Manager. An employee wishing to appeal this determination must file a written appeal to the City Manager within 10 days of receipt of the Department Head's decision. The City Manager shall meet with the employee and determine whether the employee's outside employment conflicts with the performance of their duties as a City employee. The City Manager shall advise the employee and the Department 427
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Head of the City Manager’s determination in writing within 15 days of meeting with the employee. The City’s Manager determination shall be final and binding on all parties.

B. Political Activities. Consistent with the provisions of California Government Code section 3201 et seq., employees may not engage in political activity during working hours, while on City property on which members of the public would not be entitled to engage in political activities, or while in uniform.

C. Solicitation of Political Contributions. Consistent with the provisions of California Government Code section 3201 et seq., no City employee may knowingly, directly or indirectly, solicit a political contribution from a City employee, City officer, or person on an employment list. However, this does not prohibit City employees from requesting political contributions if the solicitation is part of a solicitation made to a significant segment of the public, which may include City employees. This also does not prohibit a City employee from soliciting or receiving political funds or contributions to promote the passage of or defeat of a ballot measure which would affect the rate of pay, hours of work, retirement, civil service, or other working conditions of City employees, provided that such solicitation cannot occur during working hours or while on City property. For purposes of this section, "contribution" means a payment, a forgiveness of a loan, a payment of a loan by a third party, or an enforceable promise to make a payment except to the extent that full and adequate consideration is received, unless it is clear from the surrounding circumstances that it is not made for political purposes.

D. Contracts and Conflicts of Interest. In accordance with California Government Code section 1090 et seq., no City employee can be financially interested in any contract made by the employee in the employee’s official capacity, or by any body or board of which the employee is a member.

E. Conduct During the Workday. During the workday, employees are expected to devote their full time in the performance of their assigned duties. Any approved outside work, hobbies, or personal business must be performed during off-duty hours.

F. Employees with Access to Confidential Information. In performing their duties, employees may have access to confidential information, including, but not limited to, employees' personnel files and the personal or financial information of other City employees or persons who do business with the City. In addition, some City employees will be involved in some communications with the City Attorney's Office, which can be protected by the attorney-client privilege. Employees with such access are required to keep such information confidential.

RULE XVI. DISCIPLINARY ACTIONS
A. Reason for Disciplinary Action. While the City maintains an at-will employment environment and may terminate any employee at any time with or without cause, the City also reserves the right to take disciplinary actions against any employee. 428
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Disciplinary measures may be taken for any good and sufficient cause. Cause may include, but is not limited to, any of the following:

1. Violation of the personnel ordinance or of these personnel rules.

2. Violation of any policies, procedures, personnel rules and/or regulations of the employee's department.

3. Any act of insubordination.

4. Act detrimental to the public service.

5. Refusal or inability to comply with the duties of the position occupied by the employee.

6. Any type of misfeasance, malfeasance or nonfeasance relating to their duties, office or position.

7. Fraud in securing employment or making a false statement on an application for employment or on any supporting documents furnished with or made a part of any application.

8. Dishonesty.

9. Incompetence, such as failure to comply with the minimum standards for an employee’s position.

10. Absence from the job during working hours without permission from the employee’s supervisor or Department Head.

11. Conviction of a misdemeanor relating to the employee’s fitness to perform assigned duties, or conviction of a felony.

12. Discourtesy to the public, employees, or other persons with whom the City maintains a relationship; or engaging in treatment that does not foster cooperation.

13. Malicious gossip and/or spreading rumors; engaging in behavior designed to create discord and lack of harmony; interfering with another employee on the job; or willfully restricting work output or encouraging others to do the same.

14. Misuse or abuse of City property or equipment.

15. Substandard job performance.

16. Failure to maintain any employment qualification.

17. Discrimination and/or harassment of employees or applicants based on a protected characteristic, as set forth in the City’s Policy Against Harassment, 429
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Discrimination and Retaliation.

18. Failure or refusal to properly or satisfactorily perform assigned duties.

19. Theft or harm to City property or the personal property of another.

20. Inattention to duty, indolence, carelessness or negligence in the care or handling of City property.

21. Assault, battery, horseplay, or fighting while on duty or under the guise of office.

22. Gambling on City property or during working hours.

23. Sleeping on the job.

24. Improper use of City funds.

25. Acceptance or solicitation or bribes or extortion.

26. Abuse of sick leave, repeated tardiness, or excessive absenteeism of any kind.

27. Acceptance from any source of any emolument, reward, gift or other form of remuneration in addition to the employee’s regular compensation, as a personal benefit to the employee for actions performed in the normal course of the employee’s assigned duties.

28. Refusal or failure to report to work in a disaster or an emergency.

29. Falsification of any City report or record, or of any report or record required to be filed by the employee.

30. Use of influence of position with the City for private gain or advantage, or the use of time, facilities, equipment or supplies for private gain or advantage.

31. Disclosure of confidential or proprietary City information to unauthorized persons, employees, or organizations.

32. Use of City tools, equipment, or other property for private, personal, unauthorized, or inappropriate purposes
B. Types of Disciplinary Actions. The City employs a disciplinary system, which includes a variety of levels of disciplinary actions, up to and including termination of employment. However, nothing in this disciplinary policy should be interpreted in any way that would affect the employee's at-will employment status.

Notwithstanding any provision of this policy, all employees may be terminated at 430
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any time, with or without notice, and with or without cause. The City may take any of the following types of disciplinary actions against its employees:

1. Verbal Reprimand. Verbal reprimand as a disciplinary action means the employee is informed of their poor performance or misconduct verbally by their supervisor. Such verbal reprimand may be followed up with a written documentation memorializing the verbal reprimand.

2. Written Reprimand. Written reprimand as a disciplinary action means an official notification to the employee that there is cause for dissatisfaction with their services and that further disciplinary measures may be taken if such cause is not corrected. Official reprimand shall be given in the manner prescribed by the Personnel Officer, or designee. Reprimand notices shall be made a part of the employee's official personnel record.

3. Suspension Without Pay. Suspension without pay shall be a temporary separation from City service. Employees are ineligible to use any accrued leave during a suspension without pay.

4. Reduction In Range. Reduction in step within range as a disciplinary measure is the withdrawal of increments granted for merit, efficiency and length of service. Reduction in pay shall become effective on the first pay period following the effective date of the disciplinary action.

5. Involuntary Demotion. Demotion without consent shall include a reduction in classification or rank, with commensurate reduction in salary.

6. Termination. Termination is the dismissal of an employee from City service..

C. Authority for Disciplinary Actions.

1. The Department Heads and/or City Manager shall have authority to take disciplinary action and they may delegate to certain of their subordinate supervisory employees the authority to make verbal or written reprimands.

2. The Human Resources and Risk Manager or designee shall be notified of any contemplated disciplinary action prior to the time it is taken.

D. Notice of Disciplinary Action. When disciplinary action, other than verbal or written reprimand, is to be taken against an employee, the Department Head or City Manager shall notify the employee in writing of the disciplinary action to be taken, the reasons for the disciplinary action, and the effective date of such disciplinary action, if applicable. Because all employees are at-will, there is no right to appeal or challenge disciplinary action. However, in certain circumstances, the employee may be entitled to a name-clearing hearing before the Personnel Officer consistent with Rule XIV.E below. If the employee does not meet the criteria set forth in Rule XIV.E.1., then the employee is not entitled to any hearing, appeal, or waiting time 431
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before the disciplinary action is imposed on the employee, and such disciplinary action may be effective immediately.

E. Name-Clearing Hearing. In certain circumstances, an employee may be entitled to a name-clearing hearing before the disciplinary action is imposed by the City. In such circumstances, the employee will be entitled to a name-clearing hearing in accordance with this section.

1. Criteria for Entitlement to a Name-Clearing Hearing. In accordance with state and federal law, when the following three elements are present, the employee is entitled to a name-clearing hearing:
a. A stigmatizing charge.
b. The employee's denial of the stigmatizing charge.
c. Public disclosure of the stigmatizing charge.

2. Name-Clearing Hearing. If the employee has satisfied all three criteria set forth in Rule XIV.E.1., based on the employee’s Department Head or City Manager’s determination, then the employee is entitled to a hearing in order to clear the employee’s name. Under this limited circumstance, the City shall provide the employee with at least five days' notice of its intent to discipline the employee. During those five days, the employee may request a name- clearing hearing. If the employee desires a name-clearing hearing, the employee must file a written request with the Personnel Officer or designee within five days of receiving notice from the City of its intent to impose disciplinary action.

If the employee does not timely request a name-clearing hearing, then the employee will have been deemed to have waived their right to said hearing.

If the employee requests a hearing then the Personnel Officer or designee will make all necessary arrangements for the hearing prior to imposing the disciplinary action. . The hearing shall be before the Personnel Officer or designee. The employee is not entitled to a full evidentiary hearing, but is only entitled to the opportunity to clear their name of the stigmatizing charge(s). All name-clearing hearings shall be held in private unless the employee requests a public hearing in writing.

RULE XVII. GRIEVANCE PROCEDURE
A. Purpose of the Grievance Procedure. The grievance procedure shall be used to resolve employee complaints regarding an alleged violation or interpretation of the 432
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City's personnel ordinance or these personnel rules. Specifically excluded from the grievance procedure are:

1. Performance evaluations, or performance improvement plans;

2. Deferred or denied merit salary increases;

3. Verbal counseling;

4. Policy decisions of the City Council;

5. Any disciplinary actions under Rule XIV.B, or procedure imposing such disciplinary action;

6. Transfer to another position without a loss of pay;

7. Any aspect of the employment examination or selection process; and

8. Matters for which there is a separate appeal.

B. Grievance Procedure.

1. Step 1. The employee shall inform, in writing, the employee’s immediate supervisor of their grievance and relevant facts within seven days after the employee knew, or in the exercise of reasonable diligence should have known, of the events giving rise to the grievance. The grievance must include a statement of the event causing the grievance; the personnel rule or provision of the personnel ordinance alleged to have been violated; the relief sought by the employee; and any potential witnesses. Failure to provide complete grievance details may result in a delay in processing the grievance. At least one conference shall be held between the employee and their immediate supervisor after the employee has expressed their grievance. The supervisor shall advise the employee of their decision within 14 days following notification of the grievance.

2. Step 2. If the grievance is not satisfactorily resolved in Step 1, the grievant may, within seven days after receipt of their supervisor's response, submit the grievance to their Department Head. Such submittal shall be on the City’s designated grievance form, and shall include details of the original grievance. The grievance must include a statement of the event causing the grievance; the personnel rule or provision of the personnel ordinance alleged to have been violated; the relief sought by the employee; and any potential witnesses. After receipt of the grievance form, the Department Head will meet with the grievant within seven days of receiving the grievance form and make such investigation as is required. Within seven days of their meeting with the grievant, the Department Head shall return the 433
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original of the grievance form to the employee along with their written decision on the grievance.

3. Step 3. If the grievance is not satisfactorily resolved in Step 2, the grievant may, within seven days of receipt of the Department Head's decision, submit the grievance for consideration by the City Manager or designee. Such submittal shall be on the grievance form, and shall include details of the original grievance; a statement of the event causing the grievance; the personnel rule or provision of the personnel ordinance alleged to have been violated; the relief sought by the employee; any potential witnesses; a written statement of any issues which are still in dispute; and the specific basis upon which the grievant takes issues with the position of their Department Head. The City Manager or designee shall take such review and investigative action as they deem necessary and inform the grievant of their decision within 14 days of receipt of the grievance. The decision of the City Manager is final and binding and no further appeal may be had by the employee.

C. General Provisions.

1. No retribution or prejudice shall be suffered by employees making good faith use of the grievance procedure. All parties will act in good faith while attempting to reach a solution at the earliest possible step of the procedure.

The employee will have the assurance that filing a grievance will not result in reprisal of any nature. The City will not retaliate against any employee because of the employee’s good faith use of the grievance procedure.

2. Failure by management at any step of this procedure to communicate the decision of the grievance within the specified time limits shall permit the grievant to proceed to the next step. The grievant shall be entitled to be present at all steps of the procedure.

3. Failure at any step of this procedure to appeal a decision on a grievance within specified time limits shall be deemed acceptance of the decision rendered, and the grievant waives all further appeal of the matter.

4. The time limits specified at any step in this procedure may be extended by mutual written agreement.

5. The original of the grievance form shall accompany all requests for institution of the next step in the grievance procedure, and shall be 434
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maintained in the employee's personnel file at the completion of the grievance procedure.

6. Communication with grievant shall be processed by personal signed receipt of document, certified mail or registered mail.

RULE XVIII. EMPLOYMENT BENEFITS
A. Health Benefits. Accident, health, hospital, dental and vision insurance to cover non-occupational injuries and sickness for full-time employees will be provided by the City, as set forth in the benefits flyer/schedule.

1. Any employee who does not use their full allotment for medical, dental and vision benefits may apply the remaining amount to cover the costs of other insurances, such as supplemental insurance plans.

2. The City does not permit employees to take a “cash out” or “cash in lieu” of the medical, dental or vision insurance allotment.

3. The City contributes directly to the cost of health care premiums in accordance with Resolution 2010-48, or as may be subsequently amended.

The City reserves the right to modify the contribution amount

4. or to terminate its participation in the PEMHCA program at any time in accordance with the CalPERS rules.

B. Retirement Benefits. The City has contracted with the California Public Employees' Retirement System (CaIPERS) for retirement benefits. Eligible Employees receive retirement benefits in accordance with CalPERS calculations.

RULE XIX. EDUCATIONAL ASSISTANCE
A. Educational Reimbursement for Training and Advancement.

The responsibility for developing training programs for employees is with the City Manager and Department Heads, jointly. When an educational course to be taken by an employee will benefit the City, the City Manager may authorize payment by the City of tuition charges and books. An "educational course" may include courses that are in furtherance of a degree, other college-credit courses, or training. In order to be eligible for educational reimbursement, the employee must obtain written approval of the City Manager prior to enrolling in any courses. Educational reimbursement shall not exceed $1,500.00 in any fiscal year, and is not compensation reportable for retirement purposes.

B. Licenses and Certification Assistance.

1. In cases of enrollment for any certification which is a condition of employment, the City shall pay required application fees in advance.

2. The cost of licensing fees, renewal fees, and test fees for all levels of 435
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certification are reimbursable, upon receipt of the certification or license. To obtain reimbursement after successful completion of the test/renewal/license process, the employee is responsible for submitting proof of payment for test fees, renewal fees, and license fees, along with proof of the certification or license, to the City Manager or designee. In unusual circumstances, the City Manager may authorize the payment of the test/renewal/license fees in advance.

RULE XX. WORKPLACE VIOLENCE PREVENTION
The City maintains a standalone administrative policy for workplace violence prevention:
the City of Wildomar Policy Prohibiting Workplace Violence and Workplace Violence Prevention Plan. Employees should refer to the stand alone policy for details regarding the prevention of workplace violence, and the City’s workplace violence prevention plan.

RULE XXI. DRUG-FREE WORKPLACE POLICY
It is the desire of the City that all work environments of employees be safe and productive and free of the influence of drugs and alcohol. The City is concerned with the physical safety of all employees, potential damage to property and equipment, mental and physical health of employees, productivity and work quality, medical insurance costs, and the harm done to employees and their families by drug and alcohol abuse. The full provisions regarding drugs and alcohol in the workplace will be set forth in an administrative policy.

RULE XXII. ELECTRONIC COMMUNICATIONS POLICY
The City provides its employees with certain electronic communications devices.

Employees should be aware that no computer usage including messages transmitted or received on the computer system are private or confidential. The City's full policy regarding the use of electronic communications equipment will be set forth in an administrative policy.

RULE XXIII. UNIFORMS AND EQUIPMENT
A. Uniforms. Certain employees are required to wear a uniform in the performance of their job duties. All uniforms are expected to be clean and in good repair. The City will furnish these uniforms to employees at the City’s expense. The City will also be responsible for the maintenance, cleaning, and replacement of uniforms, at the City’s expense.

City uniforms are not suitable for everyday wear outside working hours, as such, employees shall wear the uniforms only while on duty and traveling to and from City work. Employees in the classifications required to wear uniforms shall wear the uniforms as a condition of employment while on City duty.

B. Equipment. The City shall provide employees with the essential equipment to perform the duties of their positions. Employees are responsible for requesting 436
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training on equipment that they are unfamiliar with. Also, employees are responsible for the proper operation and maintenance of all equipment.

C. Safety Equipment and Protective Clothing. Certain employees will be required to wear approved safety shoes and other safety equipment and protective clothing.

Employees failing or refusing to wear such safety equipment and protective clothing as appropriate will be subject to disciplinary action up to and including termination. If any employee is unable to wear such safety equipment and protective clothing for medical reasons, the employee must submit to the City a healthcare provider’s statement covering the reasons. Upon receiving such statement, the City will engage the employee in the interactive process as may be required by law and these Rules to determine whether a reasonable accommodation is available.

RULE XXIV. EMPLOYEE REIMBURSEMENTS AND ALLOWANCES
A. Reimbursement. Employees who are required to use their personal electronic devices and/or personal automobiles during the course of their employment will be entitled to receive reimbursement for the costs of actual expenses incurred in the performance of their duties. Employees are required to submit receipts in support of their claimed expenses.

B. Allowance. Certain employees may be provided with a monthly allowance to compensate the employee for the use of their personal electronic devices and/or personal automobile during the course of their employment. The City Manager, in their sole discretion will have the ability to determine which employees are eligible for such an allowance. If an employee receives an allowance under this section, the employee is not eligible for reimbursement under Section A of this Rule, unless the employee provides receipts establishing that the allowance was insufficient to compensate the employee for all work-related use of their personal device and/or automobile. When eligible for an allowance, the following amounts may be provided:

1. Personal electronic device (voice/telephone only): $60/month

2. Personal electronic device (data plan only): $60/month

3. Personal electronic device (voice and data): $120/month

4. Automobile: up to $500/month (varies per position and usage) RULE XXV. DISASTER AND EMERGENCY SERVICE WORKERS
A. Employees Designated as Disaster Workers. The protection of the health and safety, and the preservation of lives and property from the effects of natural, man- made, or war-caused emergencies which result in conditions of disaster or extreme peril to life, proper, and resources, is paramount to the City. When a disaster strikes, the Wildomar community looks to City employees for leadership and assistance in mitigating its effects. The assistance of City employees is vital to 437
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ensuring that this community recovers from a disaster as quickly as possible. It is important that all City employees be available to assist in responding to disasters, regardless of the position they hold. As such, in accordance with the provisions of Government Code sections 3100 et seq., all City employees are declared to be disaster service workers.

B. Oath or Affirmation. All employees are required to take and subscribe to the oath or affirmation set forth in Section 3 of Article XX of the Constitution of California at the commencement of their employment. The City Clerk shall maintain the oath or affirmation of all City employees for at least five years after the employee’s termination of employment.

C. Declaration of Disaster or Emergency. Upon the declaration of a disaster or an emergency, employees are required to follow direction given in accordance with the City Emergency Management Plan.

D. Employee Disaster Responsibilities.

1. Off-Duty Procedures.
a. Employees With Pre-Designated Roles. After ensuring that their families are safe and any short-term arrangements have been made for their families' security, employees who have pre-designated emergency or disaster roles shall respond according to those established procedures.
b. Employees Without Pre-Designated Roles.
i. Communication Systems Not Functioning. When the
telephones or other communication devices are not
functioning, employees who do not have pre-designated
emergency or disaster roles should gather information from radio and television broadcasts, and comply with any
instructions given for City employees. Unless an employee cannot physically report to work, all City employees are expected to report to work at their normally scheduled time after ensuring the safety and security of their own families. ii. Communication Systems Are Functioning. If the telephones or other communication devices are working, employees shall make every effort to contact their immediate supervisor for instructions as soon as possible. Unless otherwise instructed or if it is physically impossible for the employee to report to work, all City employees are expected to report to work at their 438
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normally scheduled time after ensuring the safety and security of their own families.

2. On-Duty Procedures.
a. Remain On Duty. All employees are expected to remain on duty at their normal work location or at a disaster location, unless dismissed by the proper authority. Every attempt possible will be made by the City to assist each employee in communicating with the pertinent employee’s family.
b. Ongoing Disasters. For disasters extending beyond the normal work day, employees are required to follow the direction and order of the proper authority.

3. Employees Physically Unable to Report to Work. In the event that an employee is unable to return to work because road and transit conditions prevent travel by automobile, public transit, or other conveyance, the employee has the option to become a disaster service worker in the City where the employee resides. Any employee who cannot return to the City and serves as a disaster worker for another municipality is required to contact the personnel department of that municipality for further instructions and to obtain written documentation of the employee’s assignment. The employee is required to notify the employee’s own immediate supervisor of the employee’s status of working in the other municipality. a. Compensation for Work Performed at Another Municipality.

Employees who are unable to report to work during a disaster will be entitled to receive compensation from the City for the service performed at another municipality, provided that the employee provide written proof from the other municipality of the amount of time the employee worked there. That information should be logged on the employee’s timesheet and submitted through the normal payroll process. Alternatively, the employee may present written proof from the other municipality that the employee offered the employee’s services, but that the other municipality rejected the employee’s assistance.
b. Returning to Wildomar. Employees are required to communicate with their supervisor as soon as possible, and are required to return to their normal or disaster duties at the City as soon as travel, by any reasonable means, to the City is possible.

4. Timekeeping Requirements. All employees are required to complete special timekeeping forms daily, which will keep a record of the following information:
439
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a. The kind of disaster work performed;
b. The number of hours worked; and
c. The location where work was performed.

5. Failure to Report to Work During a Disaster. An employee who fails to report to work as a disaster worker at the City or at another municipality will be considered on unpaid leave during the duration of the emergency, and may be subject to discipline, unless the employee submits documentation that supports justification to receive paid leave.
440
City of Wildomar Personnel Rules
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EMPLOYEE ACKNOWLEDGMENT OF RECEIPT OF PERSONNEL

RULES AND REGULATIONS
This acknowledges that I have received my copy of the City of Wildomar (“City”) Personnel Rules and Regulations (“Rules”). I recognize that the Rules supersede any related Personnel Rules, Employee Handbook, policy statements, manuals, and/or administrative policies previously issued by the City. I have read and agree to abide by all provisions set forth in the Rules and associated personnel policies.

I understand that these Rules do not create a vested contractual right in the execution by City of any duties and responsibilities relating to these Rules or associated personnel policies. I also understand that my employment with the City is at-will, meaning either City or I may terminate my employment at any time with or without cause and with or without advance notice.

PRINT FULL NAME _________________________________________________ SIGNED __________________________________________________________ DATE ____________________________________________________________ [RETAIN IN EMPLOYEE PERSONNEL FILE]
441

CITY OF WILDOMAR

CC - REGULAR MEETING

CONSENT CALENDAR
Agenda Staff Report # 1.14
Meeting Date: November
8, 2023
SUBJECT:

Payment Processing Agreement with CSG Forte Payments,
Inc. for Payment Card and ACH Transaction Processing
Services.

SUBMITTED BY:

Heidi Schrader
PREPARED BY:

Heidi Schrader

ACTION:

Approve and Authorize the City Manager to Execute the Payment Processing Agreement with CSG Forte Payments, Inc., and to provide payment processing and related products and services.

SUMMARY:

This agreement authorizes CSG Forte to provide payment processing for the CivicPlus ERP Permitting and Registration System and to provide three standalone payment card terminals for processing payment cards at special events.

BACKGROUND:

On August 9, 2023 City Council approved a Master Services Agreement with CivicPlus, LLC. for a Community Development ERP program. The modules purchased include Business Licensing, Code Enforcement, Planning & Zoning, Permitting, Fire & Safety Inspections, GIS Mapping Integration, and a Mobile Application for Offline Inspections. Part of the functionality in CivicPlus is the ability for customers to check out and pay for permits and inspections as well as business registrations via an online portal. In order for that portal to work, CivicPlus has partnered with CSG Forte to provide merchant payment processing services. The result is a seamless integration that provides a user friendly interface for City of Wildomar customers, allowing them to pay with a payment card and / or ACH.

DISCUSSION:

Staff recommend using CSG Forte for the integration with CivicPlus and to process special event payment card transactions via three standalone handheld PCI-DSS compliant terminals sold by CSG Forte. The City currently uses Intellipay's online payment portal for all non- CivicPlus online payment card transactions and recommend using Intellipay for that use case. 442

The Forte payment system option passes the transaction fee to the customer via a Service Fee in the same fashion the City uses with Intellipay. While the service fee for Forte is one percent higher, Forte offers a full integration with CivicPlus that isn't offered by Intellipay. This integration will provide a seamless customer experience, whether the customer pays for a permit, a business registration, or an inspection fee. It also streamlines administration on the back end as the payments will be processed and receipted through CivicPlus with data passed to the Oracle financial ERP for reconciliation. Forte also offers a comprehensive back end reporting software to streamline the current day reconciliation process.

The payment processing agreement has been reviewed by the City Attorney, who has identified varying levels of risk to the City. One potential risk identified is through the Limit of Liability, which does not exclude data breaches, data security requirements, or intentional misconduct or gross negligence by the vendor or its subcontractors. In speaking directly with Forte, it was determined that they carry a $1M cyberinsurance policy against breaches for just such a risk. In addition, Forte does not store any credit card information, so the risk of a breach is significantly low. Based on those facts and weighing the operational need for the payment card and ACH processing service integrated directly with CivicPlus, versus the risks identified by the City Attorney’s office, staff recommend approving the agreement (Agreement, Exhibit A).

FISCAL IMPACT:

The total cost for three VeriFone V400c stand alone payment card terminals is $1,200.

Payment processing fees will be passed along to customers utilizing the payment card or ACH checkout option as a Service (convenience) Fee. The Service Fee for customers will be 3.20% per transaction for payment cards with a minimum payment of $2, and a sliding scale for electronic checks per the attached pricing fee schedule (Exhibit B).

ACCOUNT CODE:
100-410-4250-58110

ATTACHMENTS:

Exhibit A CSG Forte Processing agreement.pdf
Exhibit B CSG Forte Gov Pricing Feb 2023 v1.2.docx
443

23.01.23

PAYMENT PROCESSING AGREEMENT
Th
is Payment Processing Agreement (“Agreement”), including all applicable appendices and addendums hereto, is made by and between CSG Forte Payments, Inc., a Delaware corporation with its primary business address at 2121 Providence Drive, Suite 151, Fort Worth, TX 76106 ("FORTE" or “Party”), and _________________________________, with its primary business address at __________________________________________ (“AGENCY” or “Party” or “Merchant”), and is effective upon the date last signed below (the “Effective Date”). FORTE provides payment processing and related products and services including but not limited to Automated Clearing House (“ACH”), credit and debit card processing, account verification and customer identification (collectively and individually, as applicable, the “Services”) to AGENCY who provides services to, or otherwise has a business relationship with, individuals and other entities (“Constituents” or “Customer”).

1. G
ENERAL
The Agreement shall consist of these terms and conditions, each of the Appendices attached hereto if applicable, and all modifications and amendments thereto. Under the terms of the Agreement, AGENCY will be furnished with the Services described in the Agreement and attached Appendices wh
ich are selected by Agency and approved by FORTE. For any terms herein that are specifically applicable to any particular Service offered by FORTE, only the terms and conditions that apply to the specific Service(s) requested by AGENCY at any given time shall apply. Some capitalized terms which are not defined herein have specific definitions provided in Appendix A, attached hereto and incorporated by this reference.

2. USA
GE

2.1 Use License. Subject to the terms and conditions of this Agreement, FORTE hereby grants to AGENCY a non- exclusive and non-transferable license to access and use the Service(s) contracted for and
AGENCY hereby accepts such license and agrees to utilize and access the Services in accordance with the practices and procedures established by FORTE, which may be amended from time to time in accordance with this Agreement. AGENCY may use the Services (a) for its own internal business pur
poses and operations, and/or (b) as a service provided to its Constituents, unless otherwise agreed by FORTE in writing. AGENCY agrees that it will not transmit any material through FORTE’s systems in violation of any applicable Law or Rule. FORTE reserves the right to use all means necessary to monitor AGENCY’s actions in the event of a real or perceived security risk.

2.2 Use of Proprietary Property. No license or right to use, reproduce, translate, rearrange, modify, enhance, display, sell, lease, sublicense or otherwise distribute, transfer or dispose of any of FORTE's Proprietary Property, as defined in Section 3 below, in whole or in part, is granted except as expressly provided by this Agreement. AGENCY shall not reverse engineer, decompile or disassemble th e
Pro
prietary Property. Additionally, nothing in this Agreement shall be construed to provide AGENCY with a license of any third-party proprietary information or property.

2.3 Accept able Use. AGENCY agrees to comply with the reasonable and acceptable use policies an
d Rules of any networks accessed by AGENCY through the Services. FORTE reserves the right to deny access to, or close any account AGENCY has with FORTE which, in FORTE’s opinion, is causing o
r may cause, harm to or negatively affect a FORTE server or third-party network accessed through F
ORTE. In the event of such an occurrence, FORTE shall make reasonable efforts to notify AGENCY prior to taking any such action but is not required to do so.

2.4 User and System Security. AGENCY shall ensure that its Users comply with all applicable requirements of this Agreement. AGENCY is responsible for protecting the confidentiality of any and all passwords and credentials provided to AGENCY by FORTE for the purpose of utilizing the Services or other forms of access to AGENCY’s accounts with FORTE. AGENCY is responsible for the security of its systems, locations and equipment used in processing Transactions under this Agreement and for developing security procedures and training its employees on the procedures. AGENCY expressly 444

23.01.23

assumes responsibility for the acts or omissions of all Users on its account(s) with FORTE and for User access to FORTE’s systems either directly or through software.

2.5 Use of Information and Data. AGENCY acknowledges and agrees, on behalf of itself and its Constituents, that all information submitted by AGENCY to FORTE in order for FORTE to provide the Services to AGENCY or otherwise contributed by AGENCY pursuant to these Services (including Transaction results), is held in FORTE’s database and may be used by FORTE for the purpose of providing the Services to its customers in compliance with all applicable Laws and Rules, including in accordance with the federal Fair Credit Reporting Act (“FCRA”). Further, FORTE may track, review, compile, store and use any information or data received from AGENCY as part of a Transaction or information or data received from a Payment Association or financial institution regarding a Transaction for regulatory compliance or any other legally permissible purpose. Without limiting the foregoing, AGENCY agrees and acknowledges that FORTE may use the routing numbers, account numbers and other PII submitted by AGENCY as well as Transaction results provided to or received by FORTE for the purpose of supporting FORTE’s fraud detection, account validation and verification, and/or other commercially available services.

3. O

WNERSHIP
All computer programs, trademarks, service marks, patents, copyrights, trade secrets, know- how, and other proprietary rights in or related to the Services (the “Proprietary Property”), are and will remain the sole and exclusive property of FORTE, whether or not specifically recognized or perfected under ap
plicable Law. FORTE shall own all rights, title and interest, including all intellectual property rights, i
n and to any improvements to the existing Services and/or any new programs, upgrades, modifications or en
hancements developed by FORTE in connection with rendering Services to AGENCY, even when refinements and improvements result from AGENCY’s request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in FORTE by virtue of this Agreement or otherwise, AGENCY hereby expressly transfers and assigns to FORTE all rights, title, and interest wh
ich AGENCY may have in and to such refinements and improvements. All reference to any of FORTE’s service marks, trademarks, patents or copyrights, or those of FORTE’s partners or vendors, shall be made in compliance with the requirements, including periodic updates thereto, as provided at http://www.forte.net/trademark.

4. CO

NFIDENTIALITY
The Parties acknowledge that, by virtue of this Agreement, each has been and will continue to be entrusted with certain Confidential Information (as defined in Appendix A) pertaining to the other’s business, including, but not limited to, proprietary information developed by, acquired by, or licensed to each Party. Each Party agrees that, except to the extent and in the manner necessary to perform its duties hereunder, it will not disclose to others or use for its own benefit any Confidential Information of the other Party and it will hold all Proprietary Property, as defined herein, confidential in perpetuity.

Additionally, in the course of providing and receiving the Services, each Party acknowledges that it may receive or have access to PII. as more fully defined in Appendix A). As such, each Party shall: (i) keep all PII in strict confidence, with the degree of care necessary to avoid unauthorized access, use or disclosure; (ii) use PII solely and exclusively for the purposes provided in this Agreement; (iii) implement administrative, physical and technical safeguards to protect PII that are at least as rigorous as accepted industry practices; and (iv) have in place a program that complies with applicable legal requirements regarding PII, including, if applicable, PCI standards for data security.

Except with respect to Personal Information, this Section 4 will not apply to Confidential Information that (i) was already available to the public at the time of disclosure, (ii) becomes generally known to the public after disclosure to the other Party, through no fault of the other Party, (iii) is disclosed under force of law, applicable regulation, governmental regulation or court order, or (iv) is required to be disclosed by a banking partner, an Acquirer or an applicable Payment Network. 445

23.01.23

5. TERM AND TERMINATION

5.1 Term. T his Agreement shall have an initial term of 5 years (the “Term”). There after, this Agr
eement will automatically renew for additional one (1) year terms unless either Party provides thirty (30) da
ys’ prior written notice of termination to the other Party.

5.2 Termination for Material Breach. In the event of a material breach of this Agreement by one P
arty and failure to cure within thirty (30) days of receipt of written notice of the breach, the other Party m
ay terminate immediately by providing written notice of termination.

5.3 Termination with Notice. FORTE may terminate this Agreement with prior notice in the event (
i) t
here is a material adverse change to AGENCY or its financial condition; (ii) AGENCY experiences E
xcessive Chargebacks pursuant to Section 6.12 herein; or (iii) AGENCY is in violation of any ap
plicable Law, Rule or regulation. Notwithstanding the foregoing, FORTE reserves the right to suspend AGENCY’s receipt of services under section 6.17 in conjunction with sending notice of intent to terminate AGENCY’s account.

5.4 T
ermination without Notice. FORTE may immediately terminate this Agreement without prior notice in the event (i) that it determines AGENCY has experienced an actual or suspected data security breach; (ii) FORTE is instructed to terminate the Agreement by a financial institution, Acquirer or Payment Network; or (iii) FORTE observes irregular, suspicious or fraudulent Transaction activity on Merchant’s account that is reasonably determined to expose FORTE to risk of financial, reputational, or other measurable loss. Notwithstanding the foregoing, FORTE may, in its own discretion, temporarily suspend AGENCY’s receipt of services prior to terminating AGENCY’s account.

6. TR

ANSACTION PROCESSING

6.1 Accepting Transactions. FORTE shall process credit card, debit card and ACH Transactions on AGENCY’s behalf on a 24-hour basis. Transactions which are received before the daily designated cut- off time will be originated for settlement through the corresponding payment network. T ransactions which are received after the designated cut-off time will be included in the next business day's settlement processing.

6.1.1 Sale Transactions. If a Transaction is sent to FORTE as a sale of goods or services, it will automatically be captured for settlement in time for the next designated cut-off time.

6.1.2 Authorization-Capture Transactions. If a Transaction is sent to FORTE for Authorization (as more fully defined in Appendix A) only or for delayed processing, then it will be the responsibility of AGENCY to submit a corresponding “capture” Transaction within forty-eight (48) hours of the Authorization in order to complete the Transaction process for settlement. Transactions which are not captured within forty-eight (48) hours of Authorization are untimely and may be rejected by FORTE.

6.2 Transaction Format. FORTE is responsible only for processing Transactions which are received and approved by FORTE in the proper format, as established by FORTE.

6.2.1 Card Not Present Transactions. For card-based Transactions in which the card is not present, AGENCY must obtain and include as part of the Authorization request the three (3)
or four (4) digit validation code and the cardholder’s billing address information.

6.3 AGENCY A ccount. In order to provide Transaction processing services, FORTE may need to establish one (1) or more service accounts on AGENCY’s behalf or require AGENCY to establish a service account with a third-party provider sub-contracting with FORTE.

6.4 Limited-Acceptance Agency. If appropriately indicated on AGENCY’s application with FORTE, AGENCY may be a Limited-Acceptance Agency, which means that AGENCY has elected to accept only certain Visa and MasterCard card types (i.e., consumer credit, consumer debit, and commercial cards) and must display appropriate signage to indicate the same. FORTE and its associated credit card Acquirer have no obligation other than those expressly provided under the Rules of a Payment Network and applicable Law as they may relate to limited acceptance. AGENCY, and not FORTE or Acquirer, will be solely responsible for the implementation of its decision for limited acceptance, including but not limited to policing the card type(s) accepted at the point of sale. 446

23.01.23

6.5 Bona Fide Sales. AGENCY shall only complete Transactions produced as the direct result of bona fide sales made by AGENCY to cardholders, and AGENCY is expressly prohibited from processing, factoring, laundering, offering, and/or presenting sales Transactions which are produced as a result of sales made by any person or entity other than AGENCY, for purposes related to financing terrorist activities or for purposes that may be used as part of a scheme which violates any law governing the use of the Services which may include but not be limited to Bank Secrecy Act or USA Patriot Act.

6.6 Setting Limits on Transaction Amount. AGENCY may set a minimum Transaction amount to accept a card that provides access to a credit account, under the following conditions: the minimum Transaction amount does not (i) differentiate between card issuers; (ii) differentiate between MasterCard, Visa, or any other acceptance brand; and iii) exceed ten dollars (or any higher amount established by the Federal Reserve). AGENCY may set a maximum Transaction amount to accept a card that provides access to a credit account, under the following conditions: AGENCY is (i) a department, agency or instrumentality of the U.S. government; (ii) a corporation owned or controlled by the U.S. government; or (iii) an agency whose primary business is reflected by one of the following MCCs: 8220, 8244, 8249 –Schools, Trade or Vocational; and the maximum Transaction amount does not differentiate between MasterCard, Visa, or any other acceptance brand.

6.7 Additional Agreements AGENCY understands and agrees that in order to receive the Services, Agency may be required to enter into additional agreements directly with the Payment Networks or other third parties.

6.8 Modifying Transactions. AGENCY shall regularly and promptly review all Transactions and shall immediately notify FORTE upon discovery of any and all discrepancies between the records of AGENCY compared with those provided by FORTE or AGENCY’s bank, or with respect to any Transaction that AGENCY believes was made erroneously or without proper authorization from the Constituent or Consumer. At AGENCY's request, FORTE will make commercially reasonable efforts to reverse, modify, void or delete a Transaction after it has been submitted for settlement. All requests must be made in writing (electronic mail will be deemed as “in writing” for these purposes), signed or sent by an individual pre-authorized by AGENCY to make such requests and delivered to FORTE. AGENCY agrees FORTE will not be held responsible for any losses, directly or indirectly, incurred by AGENCY or other third parties as a result of FORTE's failure to accomplish the request before the Transaction has been processed through the applicable Payment Network or for making any necessary changes as requested by Agency.

6.9 Delay or Rejection of Transactions. FORTE may delay or reject any Transaction without prior notification to AGENCY which is improperly formatted, is untimely, or is missing information, which may cause it to downgrade; or if FORTE has reason to believe such Transaction is fraudulent or improperly authorized; or for any reason such delay or rejection is permitted or required under the Rules or regulations. FORTE shall have no liability to AGENCY by reason of the rejection of any such Transaction.

6.10 Returned Items. FORTE shall make available to AGENCY details related to the receipt of any Transaction that is returned unpaid or any Transaction which is charged back and shall credit or charge such returned item to AGENCY’s Settlement Account.

6.11 Chargebacks. AGENCY acknowledges and agrees that it is bound by the Payment Networks Rules with respect to any Chargeback. AGENCY understands that obtaining an authorization from a Consumer for any sale shall not constitute a guarantee of payment, and such sales can be returned or charged back to AGENCY like any other item hereunder. In the event a Transaction is charged back for any reason, the amount of such Transaction will be deducted from AGENCY’s designated Settlement Account or any payment due to AGENCY.

6.12 Excessive Chargeba cks. Us ing limits established by the Payment Networks as a standard for review, FORTE reserves the right to suspend and/or terminate AGENCY’s access to the Services should AGENCY’s chargeback ratio exceed allowable limits in any given period. FORTE will make reasonable efforts to provide AGENCY with notice and a time to cure its excessive chargebacks prior to suspending or terminating AGENCY’s access to the Services. AGENCY acknowledges and expressly 447

23.01.23

authorizes FORTE, in compliance with Payment Network Rules, to provide to the Payment Networks and applicable regulatory bodies, AGENCY’s name and contact information as well as Transaction details should AGENCY’s chargeback ratio exceed the allowable limits in any given period.

6.13 Resubmitting Transactions. AGENCY shall not re-submit any Transaction unless it is returned as (i) insufficient funds (R01) or (ii) uncollected funds (R09) or unless a new Authorization is obtained from Constituent.

6.14 Settlement. Settlement of AGENCY’s funds for Transactions, less any Chargebacks or Returns, to AGENCY’s designated Settlement Account will occur within seventy-two (72) hours of origination excluding weekends and US federal banking holidays. S ettlement of Transactions will occur via electronic funds transfer over the ACH Network. Upon receipt of AGENCY’s sales data for card Transactions through FORTE’s Services, Acquirer will process AGENCY’s sales data to facilitate the funds transfer between the various Payment Networks and AGENCY. After Acquirer receives credit for such sales data, Acquirer will fund AGENCY, either directly to the AGENCY-Owned Designated Account or through FORTE to an account designated by FORTE (the “FORTE Designated Account”), at Acquirer’s sole option, for such card Transactions. AGENCY agrees that the deposit of funds to the FORTE Designated Account shall discharge Acquirer of its settlement obligation to AGENCY and any dispute regarding the receipt or amount of settlement shall be between FORTE and AGENCY. Acquirer will debit the FORTE Designated Account for funds owed to Acquirer as a result of the Services provided hereunder unless an Agency-owned account is otherwise designated by AGENCY. Further, if a cardholder disputes a Transaction, if a Transaction is charged back for any reason, or if FORTE or Acquirer reasonably believes a Transaction is unauthorized or otherwise unacceptable, the amount of such Transaction may be charged back and debited from AGENCY if settled to an Agency-owned account or debited from the FORTE Designated Account if settled to that account.

6.15 Provisional and Final Payment. AGE NCY, AGENCY’s third party senders (if applicable), and/or AGENCY’s agent(s) understand and agree that Debit or Credit Entries may be transmitted through the ACH Network, that payment of a Debit or Credit Entry by the RDFI to the Receiver is provisional until receipt by the RDFI of final settlement for such Debit or Credit Entry, and, if such settlement is not received, the RDFI will be entitled to a refund from the Receiver of the amount credited and AGENCY will not be deemed to have paid the Receiver the amount of the Debit or Credit Entry.

The rights and obligations of AGENCY concerning the Debit or Credit Entry are governed by and construed in accordance with the laws of the state in which the processing ODFI is located unless AGENCY and FORTE have agreed that the laws of another jurisdiction govern the rights and obligations.

6.16 Reporting. FORTE will make daily origination and deposit reports available to AGENCY on a 24/7 basis through the Internet-based FORTE platform.

6.17 Temporary Suspension of Services. Should any of the following occur: (i) FORTE observes irregular, suspicious or possible fraudulent Transaction activity on AGENCY’s account; (ii) FORTE determines there is an irregularity in AGENCY’s account, documentation, processes or financial condition that is inconsistent with FORTE’s risk requirements; (iii) AGENCY is in material breach of its payment or other financial obligations to FORTE; or (iv) FORTE is required by Laws, Rules or a Payment Network, FORTE reserves the right to temporarily suspend Services to AGENCY without prior written notice. In the event FORTE suspends Services to AGENCY under the terms of this Section, FORTE will provide AGENCY with notice of the suspension and the reason for such suspension, along with remediation actions so long as communicating such would not create a security risk or violate any legal obligation of FORTE.

6.18 Authorization. AGENCY specifically authorizes FORTE to (i) to debit and credit AGENCY’s designated bank account in order to carry out its duties under this Agreement and (ii) debit its designated bank account and any account owned by the same entity as AGENCY or by an entity with the same tax identification number as AGENCY to collect any payment obligation owed to FORTE by AGENCY hereunder. Further, AGENCY authorizes FORTE to act as its agent for receipt of settlement funds in connection with the Services and FORTE accepts such appointment subject to any conditions and 448

23.01.23

limitations of this Agreement. AGENCY agrees that receipt by FORTE of funds from AGENCY’s Customer shall constitute receipt of payment to AGENCY, extinguishing such Customer’s payment obligation to AGENCY (to the extent such obligation has not otherwise been extinguished) as if such Customer had paid AGENCY directly. If FORTE fails to fund AGENCY’s account in an amount corresponding to such Customer’s payment, AGENCY’s sole recourse shall be to FORTE, not the Customer.

7. T

RANSACTION AUTHORIZATION

7.1 Constituent Authorization. AGENCY shall obtain authorization from Constituent prior to r
equesting a Transaction to or from Constituent's account.

7.2 Retention. AGENCY shall retain proof of Constituent's authorization for a period of not less than two (2) years for standard Transactions and for a period of not less than five (5) years for health- related Transactions from the Authorization date or revocation of Authorization date and shall provide such proof of Authorization to FORTE upon request within five (5) business days of the request.

7.3 Revoked Authorization. AGE NCY shall cease initiating Transactions to or from a Constituent’s acc
ount immediately upon receipt of any actual or constructive notice of a Constituent's termination or r
evocation of authorization. AGENCY may re-initiate Transactions to or from a Constituent’s account only upon receiving new Authorization from Constituent.

8. AGENCY PROHIBITIONS
AGENCY must not (i) require a cardholder to complete a postcard or similar device that includes the c
ardholder’s account number, card expiration date, signature, or any other card account data in plain view when mailed; (ii) add any tax to Transactions unless applicable Law expressly requires that AGENCY impose a tax (any tax amount, if allowed, must be included in the Transaction amount and not collected separately); (iii) request or use an account number for any purpose other than as payment for its goods or services; (iv) disburse funds in the form of travelers checks if the sole purpose is to allow t
he cardholder to make a cash purchase of goods or services from AGENCY; (v) disburse funds in the form of cash unless AGENCY is dispensing funds in the form of travelers checks, TravelMoney cards, or foreign currency (in such case, the Transaction amount is limited to the value of the travelers checks, TravelMoney cards, or foreign currency, plus any commission or fee charged by AGENCY) or unless AGE
NCY is participating in a cash back service; (vi) submit any Transaction receipt for a Transaction that was previously charged back to the Acquirer and subsequently returned to AGENCY, irrespective of cardholder approval; (vii) accept a Visa consumer credit card or commercial Visa product issued by a U.

S. issuer to collect or refinance an existing debt that has been deemed uncollectable by AGENCY; or (v
iii) submit a Transaction that represents collection of a dishonored check. AGENCY further agrees t
hat under no circumstance will AGENCY store cardholder data in violation of the Laws or the operating r
egulations of any Payment Network, including, but not limited to, the storage of track-2 data. Neither AGENCY nor its agent shall retain or store magnetic-stripe data subsequent to the authorization of a sal
es Transaction.

9. AUTHORIZATION
9 .1 ACH Authorization. AGENCY authorizes FORTE to electronically debit and credit AGENCY’s designated bank account(s) for any amounts owed to or by AGENCY in accordance with the terms of this Agreement. Further, AGENCY authorizes FORTE to act as its agent for receipt of settlement funds in connection with the Services and FORTE accepts such appointment subject to any conditions and limitations of this Agreement. AGENCY agrees that receipt by FORTE of a Constituent’s funds shall constitute receipt of payment to AGENCY, extinguishing the Constituent’ s
pa
yment obligation to AGENCY as if the Constituent had paid AGENCY directly. If FORTE fails to fund AGENCY’s account in an amount corresponding to a Constituent’s payment, AGENCY’s sole r
ecourse shall be to FORTE, not the Constituent.

9.2 Third Party Service Provider. If AGENCY uses the Services through or in conjunction with a 449

23.01.23

third-party service provider that is not a party to this Agreement, AGENCY authorizes FORTE to provide the authorized third party with its FORTE merchant account information and credentials. If applicable, AGENCY authorizes the third party to originate Transactions and receive the corresponding results on its behalf.

10. C

ONSTITUENT DISPUTES
All disputes between AGENCY and its Constituents relating to any Transaction processed under this Ag
reement will be settled by and between AGENCY and Constituent. AGENCY agrees FORTE bears no responsibility or involvement in any such dispute.

11. C

OMPLIANCE WITH LAWS, RULES AND REGULATIONS
In performing its duties under this Agreement, each Party agrees to comply with all applicable Rules, re
gulations and Laws, including but not limited to all confidentiality and security requirements of the USA Patriot Act (or similar law, rule or regulation), all Rules of any applicable Payment Networks, all r
equirements under the Payment Card Industry Data Security Standard (or similar applicable data s
ecurity law, rule or regulation) including but not limited to the VISA Cardholder Information Security P
rogram, the MasterCard Site Data Protection Program, and any other program or requirement that may be
published and/or mandated by the Payment Networks. Each Party agrees to cooperate and provide in
formation reasonably requested by the other to facilitate its compliance with any applicable Law, Rule or regulation. Additionally, should a Payment Network or regulatory body impose a fee or fine on AGE
NCY for any violation of the Rules or Laws or regulations by AGENCY, such fee or fine may be ch
arged to FORTE as a pass-through to AGENCY. If any such fee or fine is charged to FORTE, AGENCY shall reimburse FORTE for any such fees or fines.

12. DATA S

ECURITY
FORTE shall implement and maintain a commercially reasonable security program, in accordance with the Information Security Requirements attached hereto as Appendix E.

13. P

RICING AND PAYMENT

13.1 FORTE will provide the Services in accordance with the fees listed on the Pricing Fee Schedule, attached hereto as Schedule 1, or any amendments thereto. Pricing based on AGENCY absorbing the fees for the Services (“Absorbed Fee Model”) will result in fees being billed to the AGENCY monthly in arrears and will automatically be debited from AGENCY’s designated account via ACH debit.

13. 2 P ricing based on a service fee that is charged to Constituents per Transaction (“Service Fee Model”) will result in a non-refundable service fee either (i) added to or (ii) charged as a separate Transaction to Constituent at the time of payment. Pricing under the Service Fee Model is calculated based on historical or estimated transactional amount activity by AGENCY. In the event that experiential transaction activity varies significantly from the historical or estimated amounts, FORTE shall have the right to adjust the service fee in accordance with the experiential transaction activity.

13.3 FORTE’s pricing is subject to the underlying fees established by the Payment Networks and its ser
vice providers. As such, in the event FORTE experiences an increase in cost for any processing services utilized by AGENCY during Term of this Agreement, FORTE will pass through the increases wi
th no additional markup to AGENCY. FORTE will provide AGENCY a minimum of thirty (30) d
ays’ notice of any change or adjustment in fees.

14. LI
MITS

OF LIABILITY

14.1 NEITHER P ARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD P

ARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE INCURRED IN RELATION TO THIS AGREEMENT. THE AMOUNT

OF DAMAGES RECOVERABLE BY EITHER PARTY FROM THE OTHER WILL NOT EXCEED THAT PARTY’S ACTUAL, DIRECT DAMAGES AND WILL BE LIMITED TO THE AMOUNT OF 450

23.01.23

THE AVERAGE MONTHLY FEES AND CHARGES PAID BY AGENCY TO FORTE,

EXCLUDING ANY PASS-THROUGH FEES, FOR THE SERVICES FOR THE IMMEDIATE THREE (3) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE APPLICABLE CLAIM. NEITHER PARTY WILL BE LIABLE FOR FAILURE TO PERFORM ANY OF ITS

OBLIGATIONS UNDER THIS AGREEMENT IF SUCH PERFORMANCE WOULD RESULT IN IT

BEING IN BREACH OF ANY LAW, RULE, REGULATION OR REQUIREMENT OF ANY GOVERNMENTAL AUTHORITY. THE PROVISIONS OF THIS SECTION WILL SURVIVE TERMINATION OF THIS AGREEMENT.

14.2 FORTE SHALL NOT BE RESPONSIBLE FOR ERRORS, ACTS OR FAILURES TO ACT OF

OTHERS, INCLUDING, AND AMONG OTHER ENTITIES, BANKS, OTHER PROCESSORS,

COMMUNICATIONS CARRIERS OR CLEARING HOUSES, THROUGH WHICH

TRANSACTIONS MAY BE ORIGINATED OR THROUGH WHICH FORTE MAY RECEIVE OR

TRANSMIT INFORMATION, AND NO SUCH ENTITY SHALL BE DEEMED AN AGENT OF FORTE.
1 5. REPRESENTATIONS AND WARRANTIES.

15.1 FORTE’s Representations and Warranties. FORTE makes no representations or warranties concerning the Services except as may be specifically authorized, in writing, or set out herein.

15.1.1 FORTE hereby warrants that its software solutions and the Services will perform in accordance with their published specifications in all material respects.

15.1.2 FORTE further warrants that in performing its obligations hereunder, it shall exercise due care and reasonable efforts to ensure that information originated by AGENCY is transmitted accurately.

15.2 AGENCY’s Representations and Warranties. AGENCY represents and warrants to FORTE:

15.2.1 If applicable, with respect to all Transactions originated by FORTE on behalf of AGENCY, (i) each Transaction in all respects has been properly authorized by Receiver; (ii) each Transaction is for an amount agreed to by the Receiver; and (iii) AGENCY shall provide proof of Authorization in compliance with applicable Rules for any Transaction to FORTE upon request within five (5) Business Banking Days.

15.2.2 AGENCY agrees to adhere to the warranties within the applicable Rules for each Transaction FORTE processes on AGENCY’s behalf.

15.3 Mutual Representations and Warranties. Each Party represents and warrants to the other:

15.3.1 The execution of this Agreement does not violate any applicable in ternational, federal, state, or local law, Payment Network rule or contract to which such Party is subject.

15.3.2 There are no actions, suits or proceedings existing or pending against or affecting it before any judicial or regulatory authority which would have a material adverse effect on its ability to perform its obligations hereunder.

15.3.3 When executed and delivered, this Agreement will constitute a legal, valid, and binding
obligation, enforceable in accordance with its terms.

15. FO

RTE SERVICE POLICY
FORTE makes no representations or warranties concerning the Services except as may be specifically authorized, in writing, or set out herein. AGENCY acknowledges and understands that FORTE does not warrant that the Services will be uninterrupted or error free and that FORTE may occasionally experience delays or outages due to disruptions that are not within FORTE’s control. Any such interruption shall not be considered a breach of the Agreement by FORTE. FORTE shall use its best efforts to remedy any such interruption in the Services as quickly as possible.

16. F

ORCE MAJEURE
Nei
ther Party will be held liable for any damages, delays or failure to perform any of its obligations under this Agreement if such damages, delays or failure is due to circumstances beyond the reasonable 451

23.01.23

control of such Party and without its fault or negligence, such as acts of God, fire, flood, earthquakes or other natural disasters, epidemics, industry-wide strikes and governmental acts or orders or restrictions.

The Party affected by such circumstances will use all commercially reasonable efforts to avoid or remove such causes of non-performance. Nothing herein shall relieve a Party form its payment obligations for Services rendered.

17. ASSIGN
MENT
The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the r
espective successors and assigns of the Parties. Neither Party may assign any of its rights hereunder, nor delegate any of its duties hereunder, without the prior written consent of the other Party, and each P
arty acknowledges and agrees that, absent such prior written consent, any attempted assignment or delegation hereunder shall be null, void and of no effect. Notwithstanding the foregoing, either Party m
ay assign this Agreement or any rights and obligations hereunder either to an Affiliate or to a third- party successor to all or substantially all of its business, stock or assets, in each case, without the prior written consent of the other Party.

18. C

HOICE OF LAW
This Ag
reement shall be governed by and construed in accordance with the Laws of the state of ________________________ without reference to choice of laws rules.

19. AMEN
DMENT
Except as otherwise provided for herein, the terms and conditions of this Agreement shall not be modified or amended except in writing and agreed to by the Parties. Notwithstanding the foregoing, this Agreement is subject to such modifications, changes, and additions as may be required by reason of any ap
plicable Law, regulation or Rule.

20. PUB
LICITY
Neither Party shall use the other Party’s name, logo or service marks in conjunction with a press release or advertisement without first obtaining written approval.

21. N
OTI
CE
A
ny notice, consent or other communication required or contemplated by this Agreement shall be in writing, and shall be delivered in person, by U.S. mail, by overnight courier, by electronic mail or by fax t
o the intended recipient at the address most recently provided in writing.

22. H

EADINGS
The headings contained in this Agreement are for convenience of reference only and shall not affect the meaning of any provision of this Agreement.

23. S

EVERABILITY
Should any term, clause or provision herein be found invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be construed to most closely reflect the original intent of t
he Parties.

24. ENT
IRE AGREEMENT; WAIVER; COUNTERPARTS
This Agreement constitutes the entire understanding of the Parties and revokes and supersedes all prior ag
reements between the Parties and are intended as a final expression of their agreement. Either Party’s waiver of any breach of any provision of this Agreement shall not be deemed a waiver of any subsequent breach of the same or other provision. T his Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. 452

23.01.23

25. EL
ECTRONIC SIGNATURES.

Under the Electronic Signatures in Global and National Commerce Act (E-Sign), this Payment Processing Agreement and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when (i) a person authorized to bind AGENCY indicates acceptance of the terms of this Agreement by following procedures that associate his/her electronic signature with this Agreement and related documents, (ii) such authorized person consents and intends to be bound by the Payment Processing Agreement and related documents, and (iii) the Payment Processing Agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record). This Agreement and all related electronic documents shall be governed by the provisions of E-Sign.

IN
WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective organizations, have executed this Agreement.
_______________________ CSG FORTE PAYMENTS, INC.

By:
____________________________ By:_______________________________ Na
me:__________________________ Name:_____________________________ Ti
tle:___________________________ Title:______________________________ Da
te:___________________________ Date: _____________________________ 453

APPENDIX A

DEFINITIONS
ACH Network. “ACH Network” or “Automated Clearing House Network” is a batch processing, store- and-forward system that accumulates and distributes ACH Transactions that are received from ODFI (defined below) and are forwarded to the specified RDFI (defined below) according to the specific schedules established by the participants.

Acquirer. “Acquirer” means a sponsoring financial institution or payment processor that enters into an agreement which enables merchants, government entities or their Agent(s) to submit Transactions to a payment network.

Affiliate. “Affiliate” means an entity controlled or managed by the same centralized federal, state or local government.

Agent. “Agent” means any director, officer, employee, representative, Affiliate, third-party vendor or any other person acting on behalf of Agency with the actual, implied or apparent authority of Agency.

Authorization. “Authorization” means a Transaction request on a Consumer bank account or card account to confirm Consumer’s account is open, in good standing, and has sufficient funds to complete the submitted transaction.

Business Banking Day. “Business Banking Day” means Monday through Friday excluding banking holidays.

Confidential Information. “Confidential Information” may include information regarding all of the computer software and technologies, systems, structures, architectures, processes, formulae, compositions, improvements, devices, know-how, inventions, discoveries, concepts, ideas, designs, methods, and information and databases developed, acquired, owned, produced or practiced at any time by a Party or any Affiliate thereof, including software programs and documentation licensed by third parties to the disclosing Party, any business or financial information directly or indirectly related to the disclosing Party’s company(s) or investments or its internal administrative audit reports on internal controls, internal risk and underwriting guidelines and policies, billing and accounting systems, Customer and vendor lists and information, employee personnel information and policies and procedures, information regarding the disclosing Party’s products and services that is not generally available to the public.

Consumer. “Consumer” means the individual end users, Constituents of AGENCY.

CPA. “CPA” or “Canadian Payment Association” is responsible for operating the two primary settlement systems (payment networks) in Canada, as well as establishing, revising and enforcing the operating Rules for the Canadian payment networks.

Chargeback. “Chargeback” means a Transaction that is rejected by the owner of the account debited or charged because a dispute exists between the Originator of the Transaction (typically Agency) and the account owner.

Credit Entry. “Credit Entry” means an ACH/EFT Transaction that is intended to deposit funds into a Receiver’s (defined below) account which has been withdrawn from AGENCY’s Settlement Account (defined below).

23.01.23

454
Debit Entry. “Debit Entry” means an ACH/EFT Transaction that is intended to withdraw funds from a Receiver’s account for deposit into AGENCY’s Settlement Account (defined below).

Laws. “Laws” means all international, national, regional and local regulations or laws which are applicable to the Services provided herein, including but not limited to federal Regulation E and Title 31 of the Code of Federal Regulations Part 210, Gramm-Leach-Bliley Act, US Bank Secrecy Act (“BSA”), applicable privacy and data security laws, US and local export control laws, including US Foreign Corrupt Practices Act, the Export Administration Act, US Department of Treasury Office of Foreign Assets Control (“OFAC”) and similar restrictions under US law, executive order, regulation or Rule (collectively, “Export Laws”), and Fair Credit Reporting Act and USA Patriot Act.

Merchant. “Merchant” means AGENCY.

NACHA. “NACHA” or “National Automated Clearing House Association” is responsible for establishing, revising and enforcing the Operating Rules for the US ACH Network.

ODFI. “ODFI” or “Originating Depository Financial Institution” means the financial institution that receives ACH Transactions from Merchant through FORTE and then forwards these Transactions (defined below) to the ACH Network.

Originator. “Originator” means the AGENCY who has contracted with FORTE to initiate ACH entries, on its behalf, to the ACH Network.

Payment Network. “Payment Network” means an entity that facilitates and governs payment Transactions, including but not limited to VISA, M/C, Discover, NACHA, CPA and may also be referred to as “Payment Association”.

Payment Network Resources:

VISA Regulations (from VISA website): https://usa.visa.com/dam/VCOM/download/about-visa/visa- rules-public.pdf
MasterCard Rules (from MC website):
https://www.mastercard.us/en-us/about-mastercard/what-we-do/rules.html Discover rules (from Discover website):
http://www.discovernetwork.com/merchants/index.html
NACHA: www.nacha.org
PCI-DSS. “PCI-DSS” or “Payment Card Industry Data Security Standard” means the system security measures established by the major credit card companies. The PCI-DSS is mandated by the credit card companies but administered by the Payment Card Industry Security Standards Council.

Personally Identifiable Information or PII. “PII” means unencrypted, unredacted, or non-anonymized personally identifiable information regarding a Consumer or non-personally identifiable information regarding a Consumer that has been aggregated, disaggregated or decompiled in a manner that is sufficient to cause a Consumer to be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to such Consumer’s physical, physiological, mental, economic, cultural or social identity, including, by way of example, financial account numbers, credit or debit card numbers (with or without access or pin numbers, if collected), personal addresses, IP addresses, identity cards, residency permits, passport numbers, driver’s license numbers and/or other government issued numbers. PII includes “Personal Data” as commonly defined by privacy laws.

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455

23.01.23

RDF
I. “RDFI” or “Receiving Depository Financial Institution” means the financial institution that receives the ACH Transactions from the ODFI through the ACH Network and posts these Transactions to the accounts of Receivers (defined below).

Recei
ver. “Receiver” means an entity or individual Consumer that has an established account with a card issuer or financial institution upon which a Transaction is or may be acted upon.

Reserve. “Reserve” means a specific amount of money that is held in the AGENCY account to be used by FORTE to offset amounts owed to FORTE for Services provided, such as returned items, chargebacks, fees/fines, billing or other AGENCY obligations to FORTE that FORTE is unable to collect from AGENCY.

Ru
les. “Rules” means the operational rules, policies and procedures established by each applicable Payment Network to govern all transactions and parties that participate in processing Transactions through the associated Payment Network.

S
ettlement Account. “Settlement Account” means an account established and maintained by AGENCY with a financial institution through which the following may occur: (a) deposit of funds for Debit Entries, (b)
t
he extractions of funds for Credit Entries, reserve funds or fee obligations unless otherwise agreed to by the Parties.

S
ettlement Entry. “Settlement Entry” means a Debit or Credit Entry to AGENCY’s Settlement Account which corresponds to the net amount owed AGENCY by FORTE at the end of each Business Banking Day.

T
ransaction. “Transaction means any transfer of data or information to FORTE in a format pre-approved by FORTE, including but not limited to payment, verification and authentication items.

Users. “Users” mean all individuals who access a FORTE website or utilize any portion of the FORTE Services on behalf of AGENCY directly or through software that accesses the FORTE systems through AGENCY’s systems, by using AGENCY’s access credentials or any other access reasonably presumed to be on behalf of AGENCY.
456

23.01.23

AP

PENDIX B

ACCOUNT VERIFICATION AND AUTHENTICATION SERVICES

1. Rep
resentation by Agency. Each request for data through the verification and authentication services sh
all constitute a representation, warranty and certification by AGENCY that the data (i) shall be used and disclosed only in accordance with the terms of the Agreement, and in accordance with any applicable R
ules, regulations or Laws; (ii) shall be used solely for the intended use as stated by AGENCY on AGE
NCY’s application and that use is in compliance with the permissible uses under the Fair Credit R
eporting Act (“FCRA”) as provided in the FCRA Requirements Addendum located at http://www.forte.net/fair-credit-reporting-act; (iii) AGENCY will follow proper procedures for adverse action notification to its Constituents, as provided by the FCRA Requirements Addendum; and (iv) AGENCY acknowledges it has implemented security measures to prohibit the unauthorized access to the i
nformation provided.
2 . Use o
f Services.

2.1 AGENCY SHALL USE THE VERIFICATION SERVICES ONLY IN CONNECTION

WITH PAYMENTS PRESENTED TO AGENCY BY ITS CONSTITUENTS IN EXCHANGE FOR GOODS OR SERVICES. AGENCY SHALL NOT RESELL THE VERIFICATION DATA OR SERVICES TO ANY THIRD PARTIES.

2.2 AGENCY understands and agrees that it cannot decline services to a consumer, Constituent or Customer after receiving an approval result from FORTE on a verification inquiry unless AGENCY is declining based on other grounds and/or information. Further, if AGENCY does decline Services to a FORTE approved consumer, Constituent or Customer based on alternate information, AGENCY shall not provide FORTE’s contact information as recourse for the consumer, Constituent or Customer to pursue a dispute of the result under FCRA Adverse Action requirements.

2.3 AGENCY shall provide to FORTE, as part of a verification inquiry, the accurate amount for each Transaction AGENCY wants to verify.

3. Ret
ention of Data. AGENCY acknowledges and agrees that it shall not retain, store, compile or aggregate the results of verification or authentication inquiries received from FORTE except as required by applicable Law or to perform its obligations under this Agreement.

4. AGE
NCY acknowledges and agrees, on behalf of itself and its Constituents, that all information submitted by AGENCY to FORTE in order for FORTE to provide the Services to AGENCY or otherwise c
ontributed by AGENCY pursuant to these Services (including Transaction results) is held in FORTE’s d
atabase, and may be used by FORTE for the purpose of providing the Services to its Customers in co
mpliance with all applicable Laws and Rules, including in accordance with the federal Fair Credit Reporting Act (“FCRA”). Further, FORTE may track, review, compile, store and use any information or d
ata received from AGENCY as part of a Transaction or information or data received from a Payment Association or financial institution regarding a Transaction for regulatory compliance or any other legally p
ermissible purpose. Without limiting the foregoing, AGENCY agrees and acknowledges that FORTE (and/or certain of its Affiliates) may use the routing numbers, account numbers and other PII submitted b
y AGENCY as well as Transaction results provided to or received by FORTE for the purpose of supporting FORTE’s (or certain of its Affiliates) fraud detection, account validation and verification, a
nd/or other commercially available services.
457

23.01.23

AP

PENDIX C

ACCOUNT UPDATER SERVICES

1. Des
cription of Services. Participating Visa/MasterCard issuers submit the account changes to FORTE’s Account Updater database. On a monthly basis, FORTE will compare all of AGENCY’s r
ecurring tokenized Transactions against the Account Updater database. FORTE will then update t
he tokenized card information on file with updated account information.

2. A
gency Requirements for Account Updater Participation.
a. AGENCY must be properly established and registered in the United States. b. AGENCY must not have been disqualified from participating in the Visa, MasterCard, or Discover programs.
c. AGENCY must be in compliance with all Card Association Operating Regulations. d. AGENCY must submit inquiries only for those accounts with which it has an ongoing C
ustomer relationship and Customer’s authority to submit such payments. e. AGENCY may not request Authorization on accounts that have been returned “Contact Cardholder” or “Closed.”
f. AGENCY must not submit inquiries on behalf of any other entity. g. AGENCY assumes all risk associated with the use of the Account Updater Service.

FORTE shall have no liability whatsoever to AGENCY for any liability associated with the Account Updater Service, including but not limited to the accuracy or completeness of the i
nformation provided via the Account Updater Service.
458

23.01.23

AP

PENDIX D

AMERICAN EXPRESS CARD ACCEPTANCE

1. M
erchant hereby acknowledges and agrees that for purposes of acceptance of American Express, the Am
erican Express Merchant Operating Guide and any amendments thereto (the “Operating Guide”) is he
reby incorporated by reference into this Agreement and can be found at www.americanexpress.com/merchantopguide.

All capitalized terms found in this section shall have the attributed meaning from the Operating Guide.

2. M
erchant hereby acknowledges and agrees that it is not a party to any agreement between FORTE and American Express.

3. M
erchant hereby authorizes FORTE and/or Acquirer to submit American Express transactions to, and receive settlement from, American Express on behalf of Merchant. Merchant must accept the American Express card as payment for goods and services (other than those goods and services prohibited under the Operating Guide) sold, or (if applicable) for charitable contributions made, at all of its establishments, except as expressly permitted by applicable Law. Merchant is jointly and severally liable for the obligations of Merchant’s establishments under the Agreement. For the avoidance of doubt, “cardholder” as used in this Ag
reement shall include Cardmembers as defined in the Operating Guide.

4. M
erchant hereby acknowledges and agrees that (i) FORTE or Acquirer may disclose American Express Transaction Data (which for purposes of this section shall have the same definition as “Transaction Data” in the Operating Guide), Merchant Data (as defined below), and other information about Merchant to Am
erican Express, (ii) American Express may use such information to perform its responsibilities in connection with the American Express Program, promote the American Express Network, perform analytics a
nd create reports, and for any other lawful business purpose, including marketing purposes, and (iii) American Express may use the information obtained in this application at the time of setup to screen and/or monitor Merchant in connection with American Express Card (the “Card”) marketing and administrativ e
pur
poses. If Merchant has provided a wireless phone number in connection with this Agreement, Merchant hereby agrees that it may be contacted at that number and the communications sent may include autodialed text messages or automated prerecorded calls. If Merchant has provided a fax number, Merchant hereby agrees that it may be sent fax communications. To opt out of American Express-related marketing communications, Merchant may contact FORTE customer service as described in this Agreement. For purposes of this section, “Merchant Data” means names, postal and email addresses, tax ID numbers, nam es
an
d social security numbers of the authorized signer of Merchant and similar identifying information about Merchant. For clarification, Merchant Data does not include American Express Transaction Data.

5. M
erchant will adhere to the following website information display guidelines in the event Merchant has a website and/or operates an e-commerce business. Merchant’s website must display the following:
• An accurate description of the goods/services offered, including the currency type for the Transaction (
e.g., U.S. Dollars). Note: Transaction currency must be in U.S. Dollars. • M
erchant's physical address in the U.S.
• An email address or telephone number for customer service disputes. • Return/refund policy.
• A description of Merchant's delivery policy (e.g., no overnight delivery). • A description of Merchant's security practices (e.g., information highlighting security practices M
erchant uses to secure Transactions on its systems, including Transactions conducted on the Internet). • A statement of known export restrictions, tariffs, and any other regulations. 459

23.01.23

• A
privacy statement regarding the type of personal information collected and how the information is used. Additionally, Merchant must provide to customers the option to decline being included in m
arketing campaigns or having their personal information included on lists sold to third parties.

6. M
erchant hereby agrees that, in the event that Merchant becomes a High Charge Volume Merchant (as d
efined below), Merchant will be converted from the American Express Program to a direct American Express Card acceptance relationship with American Express, and upon such conversion, (i) Merchant will be bound by American Express’ then-current card acceptance agreement, and (ii) American Express will set pricing and other fees payable by Merchant for American Express Card acceptance. “High Charge Volume M
erchant” for purposes of this section means an American Express Program Merchant with either (i) greater than $1,000,000 in American Express charge volume in a rolling twelve (12) month period or (ii) greater than $100, 000 in American Express charge volume in any three (3) consecutive months. For clarification, if Merchant has multiple establishments, the American Express charge volume from all establishments shall b e
s
ummed together when determining whether Merchant has exceeded the thresholds above.

7. E
xcept as expressly permitted by applicable Law, Merchant must not: (a) indicate or imply that Merchant prefers, directly or indirectly, any Other Payment Products over the Card, (b) try to dissuade Cardmembers from using the Card, (c) criticize or mischaracterize the Card or any of American Express' services or programs, (d) try to persuade or prompt Cardmembers to use any Other Payment Products or any other method of payment (e.g., payment by check), (e) impose any restrictions, conditions, disadvantages, or fees when the Card is accepted that are not imposed equally on all other payment products, except for electronic funds transfer, cash or check, (f) suggest or require Cardmembers to waive their right to disput e
an
y Transaction, (g) engage in activities that harm American Express' business or the American Express B
rand (or both), (h) promote any Other Payment Products (except, if applicable, Merchant’s own private l
abel card that it issues for use solely at its Establishments) more actively than Merchant promotes the Card, or (i) convert the currency of the original sale Transaction to another currency when requesting A
uthorization or submitting Transactions (or both).

8. M
erchant may offer discounts or in-kind incentives from its regular prices for payments in cash, ACH funds transfer, check, debit card, or credit/charge card, provided that (to the extent required by ap
plicable Law): (i) Merchant clearly and conspicuously discloses the terms of the discount or in-kind incentive to its customers, (ii) the discount or in-kind incentive is offered to all of Merchant’s prospective cu
stomers, and (iii) the discount or in-kind incentive does not differentiate on the basis of the Issuer or, except as expressly permitted by applicable state statute, payment card network (e.g., Visa, MasterCard, Discover, JCB, American Express). The offering of discounts or in-kind incentives in compliance with the terms of this paragraph will not constitute a violation of the provisions set forth Section 3.2 of the Operati ng
Gu
ide.

9. W
henever payment methods are communicated to customers, or when customers ask what payments are accepted, Merchant must indicate its acceptance of the Card and display American Express' Marks (including any Card application forms provided to Merchant) as prominently and in the same manner as any Other Payment Products. Merchant must not use American Express' Marks in any way that injures or diminishes the goodwill associated with the American Express Mark, nor in any way (without American Express’ prior written consent) indicate that American Express endorses Merchant’s goods or services.

Merchant shall use the American Express brand and marks in accordance with the requirements set forth in the Operating Guide and shall remove the American Express brand and marks from Merchant’s website and wherever else they are displayed upon termination Merchant’s acceptance of American Express cards.

10. A
ny and all Cardmember Information is confidential and the sole property of the Issuer, American 460

23.01.23

E
xpress or its Affiliates. Except as otherwise specified, Merchant must not disclose Cardmember Information, nor use nor store it, other than to facilitate Transactions in accordance with this Agreement.

For more information, refer to the Operating Guide, Section 4.2, "Completing a Transaction at the Point of Sale" and Chapter 8, "Protecting Cardmember Information".

11. M
erchant shall not assign to any third party any American Express-related payments due to it under this Agreement, and all indebtedness arising from American Express Charges (as defined below) will be for bona fide sales of goods and services (or both) at its establishments (as defined below) and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that Merchant may sell a nd
assi
gn future American Express transaction receivables to FORTE, its affiliated entities and/or any other cash advance funding source that partners with FORTE or its affiliated entities, without consent of American Express.

12. M
erchant hereby agrees that American Express shall have third party beneficiary rights, but not obligations, to enforce this Agreement as against Merchant to the extent applicable to American Express p
rocessing. Merchant understands and agrees that it shall have no third party beneficiary rights under any ag
reement between FORTE and American Express and/or Acquirer. Merchant shall maintain refund policies f
or purchases on the American Express card that are at least as favorable as its refund policy for purchases on any other payment product. Merchant will disclose any such refund policy to Cardmembers at the time of purchase and in compliance with the Operating Guide and all applicable Laws. Merchant’s termination of American Express Card acceptance shall have no direct or indirect effect on Merchant’s rights to accept other card brands. To terminate American Express acceptance, Merchant may contact FORTE customer service as described in this Agreement.

13. W
ithout limiting any other rights provided herein, FORTE and/or Acquirer shall have the right to i
mmediately terminate Merchant’s acceptance of American Express cards upon request of American Express. Merchant may not bill or collect from any Cardmember for any purchase or payment on the Card unless a chargeback has been exercised, Merchant has fully paid for such charge, and it otherwise has the r
ight to do so. Merchant will comply with all procedural requirements relating to chargebacks, as provided in the Operating Guide, Chapter 11.

14. Am
erican Express Liability. SPONSORED MERCHANT ACKNOWLEDGES AND AGREES

THAT IN NO EVENT SHALL AMERICAN EXPRESS, ITS AFFFILIATES, AGENTS, SUCCESSORS, O

R ASSIGNS BE LIABLE TO SPONSORED MERCHANT FOR ANY DAMAGES, LOSSES, OR

COSTS INCURRED, INCLUDING INCIDENTAL, INDIRECT, SPECULATIVE, CONSEQUENTIAL, S

PECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (WHETHER BASED ON C

ONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, FRAUD, OR OTHERWISE, OR

STATUTES, REGULATIONS, OR ANY OTHER THEORY), ARISING OUT OF OR IN C
ONNECTION WITH THE AGREEMENT.
461

22.11.30

APPENDIX E

INFORMATION SECURITY REQUIREMENTS

1. Acknowledgment of Information Security Requirements . FORTE acknowledges and agrees to have a “Security Program” that is compliant with all legal and industry mandated information security requirements applicable to its duties and obligations specified under this Agreement.

2. Compliance with Laws and Industry Standards. FORTE agrees to abide by all Laws, Rules and industry- mandated information security standards applicable to its duties and obligations related to information security for Services provided by FORTE to AGENCY under this Agreement.

3. Definitions.

a. Consumer Information. “Consumer Information” means collectively PII and Source Data, as defined below.

b. Source Data. “Source Data” means data provided by AGENCY relating to AGENCY’s account activity or other information collected from the AGENCY in order to process a transaction on a AGENCY’s behalf or otherwise necessary for a AGENCY’s use of Forte’s products and services , whether in individual or aggregate form. Source Data may include PII but is not limited to PII. Source Data is and shall remain the property of a AGENCY and /or its Consumer customer. To the extent that ISV or FORTE have access to or collects such Source Data, each agrees that it does so solely on behalf of the AGENCY and the AGENCY’s Consumer customers pursuant to the obligations hereunder and shall maintain the confidentiality of such Source Data and shall treat it in accordance with applicable Law.

4. Security Obligations.
a. FORTE hereby acknowledges that AGENCY has a responsibility under the law to keep PII (as defined in Appendix A) private and confidential, and as a result of any PII received by FORTE in the performance of this Agreement, FORTE shall have the same responsibility. FORTE also acknowledges that the PII to which it will have access pursuant to this Agreement (if any), that FORTE shall gain possession of any ownership or other proprietary rights with respect to such PII.

FORTE acknowledges and understands that PII may be subject to applicable local, state and federal Rules and Laws and applicable information industry standards; provided however, to the extent that AGENCY informs FORTE of a local law expanding the definition of PII in Appendix A, FORTE shall only be required to use commercially reasonable efforts to comply with such expanded local requirements.
b. Consumer Information that is collected or obtained from AGENCY pursuant to this Agreement shall be stored and maintained by FORTE in a secure environment and transmitted by FORTE in a secure form that meets industry- mandated data security standards. Although FORTE will protect and safeguard PII in a manner that meets industry-mandated data security standards, the parties agree that there may be some instances in which PII or certain PII data elements are protected in a more secure manner than other data (e.g., encryption).

5. Rights to Use and Access . AGENCY hereby grants to FORTE a non-exclusive right to use all of AGENCY’s Source Data including PII provided by AGENCY’s customers, necessary to perform the Services under this Agreement. FORTE shall limit the use and access to AGENCY’s Source Data to uses pursuant to the terms of the Agreement and to FORTE’s bona fide employees or independent consultants, contractors or auditors and required governmental agencies, who have a need to know such information 462

22.11.30

and who agree to comply with use and non-disclosure restrictions similar to those contained within this Agreement.

6. Security of Consumer Information. Each Party shall implement and maintain a Security Program that includes appropriate administrative, technical and physical safeguards reasonably designed to: (i) ensure the security and confidentiality of Consumer Information within its systems; (ii) protect against any anticipated threats or hazards to the security or integrity of Consumer Information within its systems; and (iii) protect against unauthorized access to or use of Consumer Information stored on its systems; and (iv) dispose of Consumer Information in a secure manner per applicable Rules and Laws. a. In order to comply with safeguard obligations generally described in the preceding paragraph, each Party shall (1) designate an employee or employees to coordinate its Security Program, (2) identify reasonably foreseeable internal and external risks to the security, confidentiality and integrity of Consumer Information located on its systems that could result in the unauthorized disclosure, misuse, alteration, destruction or other compromise of such information, and assess the sufficiency of any safeguards in place to control these risks. At a minimum, such risk assessment should include consideration of risks in each relevant area of a Party’s operations, including: (i) employee training and management; (ii) information systems, including network and software design, as well as information processing, storage, transmission and disposal; and (iii) detecti ng, preventing and responding to attacks, intrusions, or other systems failures, which shall include the use of commercially reasonable efforts to establish procedures and logging mechanisms for FORTE systems and networks that will allow tracking and analysis in the event there is a compromise of its systems, and maintain an audit trail history for at least three (3) months for review by AGENCY upon reasonable request; (3) design and implement information safeguards to control the risks identified through risk assessment, and regularly test or otherwise monitor the effectiveness of the safeguards’ key controls, systems, and procedures; and (4) use commercially reasonable efforts to assure data security when disposing of any Consumer Information.

7. Disclosures. Neither Party shall have an obligation to maintain the confidentiality of any Consumer Information which: (i) has been received by it from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the receiving party; or (ii) is independently developed by it without reference to any Consumer Information. If required by any court of compete nt jurisdiction or other governmental authority, each Party may disclose to such authority, data, information or materials involving or pertaining to Consumer Information to the extent required by such order or authority. FORTE shall, if not otherwise prohibited, give the other Party as much advance notice of the possibility of such disclosure as is practical so that it may, at its own expense, attempt to stop such disclosure or obtain a protective order concerning such disclosure.

8. Breach Notification. In the event of an actual or validated breach of security of a Party’s system, website, database, equipment or storage medium or facility that results in unauthorized access to Consumer Information on a Party’s system by any third party (including any consultant or subcontractor of the Party that is not authorized to access such information), the Party that experienced the breach shall notify the other Party within a commercially reasonable time after taking any appropriate measures necessary to prevent further access, and shall take commercially reasonable efforts to resecure its systems as soon as possible. The Party that experienced the breach shall provide any information that the other Party reasonably requests pertaining to the incident, unless prohibited from doing so by applicable Rule or Law and shall provide reasonable cooperation to investigate any such incident. In addition, in the event of an actual or validated breach of security to a Party’s system regarding PCI data related to AGENCY’s account with FORTE, the Party that experienced the breach shall, to the extent reasonably practicable, cooperate with the investigative actions of the appropriate forensic unit and/or law enforcement agency and agrees to provide the other Party with a copy of the final Incident Report, if any, upon request. 463

22.11.30

9. FORTE’s Annual Validation of Adherence to Security Standards. FORTE and AGENCY agree to utilize existing FORTE assessment reports and Certifications (SSAE report and PCI Certification), to validate FORTE’s compliance with the Information Security Requirements set forth in this Appendix E. a. FORTE shall maintain all records pertaining to the Services as required by applicable Rule or Law b. FORTE shall provide at its expense, upon AGENCY ’s written request on no more than an annual basis, its most current independent, SSAE report (third party service organization report). An SSAE report for purposes of this Agreement is defined as a specialized report or reports of controls, generally accepted in the industry, in the areas of financial reporting and general information technology controls for the services provided by a hosted solutions pro vider, managed services provider, service organization, service bureau or other similarly structured provider of software and hardware solutions. FORTE shall select the type of SSAE report that will be provided based upon the relationship between the parties and the products and services provided by FORTE. In the event AGENCY wishes to receive a type of SSAE report not currently provided by FORTE, AGENCY shall provide no less than eighteen (18) months prior written notice to FORTE and FORTE in its sole discretion shall determine whether it will provide the additional type of SSAE report to AGENCY.

FORTE will provide a copy of the most current report prepared; provided that AGENCY shall accept and agree to any conditions imposed by the independent audit firm for access to such report. FORTE will use good faith efforts to assist in resolving any issues that may arise between AGENCY and any independent auditor firm regarding the viewing of the SSAE report. AGENCY may not distribute or provide FORTE’s SSAE report to third parties without FORTE’s prior written consent. c. FORTE is PCI DSS certified and undergoes an annual audit in order to maintain PCI DSS compliance against the current version of PCI DSS published on the PCI SSC (PCI Security Standards Council) website.
d. AGENCY and its auditors will maintain the confidentiality of FORTE’s procedures and processes, which FORTE describes as confidential, and which are disclosed as a result of any review or audit.

FORTE agrees that any material failure, as defined by AGENCY in its reasonable discretion, to cooperate fully and promptly in the conduct of any audit requested pursuant to this paragraph will constitute grounds for AGENCY to immediately terminate the Agreement and cease receiving Services from FORTE ; provided, however, AGENCY shall provide FORTE with written notice of such material failure to cooperate and FORTE shall have thirty (30) days opportunity to cure. Such termination shall be [ AGENCY/Agency]’s sole and exclusive remedy for any such failure to cooperate.

10. Network and Application Scans. FORTE shall perform network and application security scans that test the FORTE’s systems for (i) security vulnerabilities, (ii) denial of service vulnerabilities and (iii) system access. FORTE will have processes that review and remediate vulnerabilities.

464

22.11.30

SCHEDULE 1

PRICING FEE SCHEDULE

Such Pricing Fee Schedule is executed and attached to AGENCY’s “Merchant Application” and incorporated herein by reference.
465

PRICING FEE SCHEDULE
Forte Payment Systems is proud to provide a robust processing platform and flexible pricing strategies:
 Service Fee Model – in a service fee model approach, the citizen pays a service fee for processing their transaction. Your office absorbs no cost.
 Absorbed Model - credit card/debit card Merchant Services, Electronic Check Services and the Secure Gateway are absorbed by your office.

Service (Convenience) Fee Pricing Option:

MasterCard, Visa, Discover and American Express cards

3.20% of the payment amount with a minimum fee of $2.00 based upon volume.

Debit Cards (Tax Program only)

1.95% of the transaction amount
Electronic check – online WEB and IVR payments
Includes Forte Verification for known accounts.
eCheck Transaction Tiers Fees Frequency
$0.00 to $50,000.00
$2.00 w/Verification
Per Transaction
$50,000.01 to $75,000.00
$3.25 w/Verification
Per Transaction
$75,000.01 to $100,000.00
$6.25 w/Verification
Per Transaction
$100,000.01 to $150,000.00 $10.25 w/Verification Per Transaction $150,000.01 + $250,000.00
$15.25 w/Verification
Per Transaction
Absorbed Pricing Option:

Emerging Market and Public-Sector Rate Structure
Processing Costs: Fees Frequency
Option 1. Visa, MasterCard, Discover ,
American Express 3.20% Per Transaction
Option 2. Visa, MasterCard, Discover, *Pass Thru pricing + $0.20+ 40bpts* Per transaction
Option 2. American Express *Pass Thru pricing +
$0.20 Per Transaction
Forte Protect (End-2-End Encryption) $0.10 Per transaction Forte Protect (Key Injection Fee) $25.00 One time Per Device Account Updater (Optional) $0.35 Per Transaction
Account Updater (Optional) $25.00 Per Month
Credit Card Chargeback Fee $25.00 Per Chargeback
Batch Fee $0.25 No Charge - Waived
ACH Fee-debits/credits $2.00 with Forte Validate
Plus Per Transaction
ACH Return Fee $2.00 Per Return
Monthly Fee $5.00 Each Month per Merchant Account
466
*Pass Thru pricing includes the direct interchange dues, assessments and all other fees that are charged directly from the associations. Forte Payment Systems believes in transparent pricing, meaning that we utilize a Pass-Thru Plus pricing model. Interchange pass thru pricing is a form of credit card processing that allows the actual cost of the processing (*interchange fees & assessments) to be passed directly through to your office. The advantage of this pricing strategy is that it is transparent and, in most instances, provides the lowest processing costs.

Forte’s fees include: Total volume processed multiplied by bpts Total # of transactions processed by per item fee
Gateway Only Pricing Option:

Fee Description Fee Frequency
Forte Gateway Fee $0.25 Per Transaction
Monthly Gateway Fee $29.99 Per Merchant ID

Equipment and Service Pricing:

The following table reflects our Equipment and Service Offerings Select pricing option(s) desired: Absorbed Pricing Service Fee Pricing Gateway Only Pricing

Option 1 ☐ Option2 ☐ Dual Bill ☐ ☐ ☐ *Required Merchant Signature: ____________________________________________ Date ______________________________
Standard Product Description Fees and Cost of Equipment VeriFone V400c Terminal
(Standalone)
$399.00 per terminal plus
shipping
VeriFone V400c Terminal
(Hybrid with cables)
$450.00 per terminal plus
shipping
MagTek eDynamo $179 per devise plus shipping
MagTek eDynamo and Counter-Top
Docking Station Bundle (recommended)
$219/Device with Docking
station plus shipping
467

CITY OF WILDOMAR

CC - REGULAR MEETING

CONSENT CALENDAR
Agenda Staff Report # 1.15
Meeting Date: November
8, 2023
SUBJECT:

Annexation No. 9 into Community Facilities District No. 2022-1 (Services) for Popeyes (PP 21-0138)
SUBMITTED BY:

Ninette Eva
PREPARED BY:

Ninette Eva

ACTION:

Adopt a Resolution entitled:

RESOLUTION NO. 2023 - _____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WILDOMAR, CALIFORNIA,

DECLARING ITS INTENTION TO ANNEX TERRITORY TO COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES), OF THE CITY OF WILDOMAR, ADOPTING A MAP OF THE AREA PROPOSED TO BE ANNEXED (ANNEXATION NO. 9) AND AUTHORIZING THE

LEVY OF SPECIAL TAXES THEREIN
SUMMARY:

The resolution of intention will begin the proceedings for the annexation of Popeyes Restaurant into the Community Facilities District No. 2022-1 and will authorize the levying of special taxes on parcels of the taxable property to cover the costs associated with the maintenance of public improvements.

BACKGROUND:

On June 8, 2022 the City Council adopted Resolution No. 2022-30 establishing Community Facilities District No. 2022-1 (Services) of the City of Wildomar (the "CFD No. 2022-1" or "District") and authorizing the levying of special taxes on parcels of taxable property for the purpose of providing certain services which are necessary to meet increased demands placed upon the City.

The owner, DMSD Cajun Properties LLC, of PP 21-0138 containing 1.41 gross acres within the City, has requested that the City annex this territory into CFD No. 2022-1 (Services) to cover the costs associated with the maintenance of public improvements. The improvements 468
proposed to be maintained include items such as landscaping, lighting, and street maintenance.

The landowner has advised the City that it desires the area described in Exhibit A of the Resolution of Intention to be annexed into CFD No. 2022-1 and that a rate and method of apportionment of special tax to be levied therein be established.

DISCUSSION:

The area proposed within Annexation No. 9 will encompass 1.41 acres to include a Popeyes restaurant, with a FY 2023-24 maximum annual tax of $5,072 per acre, per year. The property proposed to be annexed into CFD No. 2022-1 will be included in Tax Zone 9. This tax rate includes a Maximum Special Tax A of $2,700 per acre per year for maintenance services of public facilities and a Special Tax C (Contingent) of $2,372 per acre per year. These tax rates are proposed to escalate each year. Maximum Special Tax A will increase by the greater of Consumer Price Index (CPI) or 2% and Special Tax C will increase by the greater of CPI or 2%, all not to exceed 6%. DMSD Cajun Properties LLC has agreed to the annexation into the CFD and submitted a "Consent and Waiver" form on file in the City Clerk's Office, to initiate and conduct proceedings pursuant to the Mello-Roos Act of 1982, requesting the annexation of property to CFD No. 2022-1 (Services) and consenting to the shortening of election time requirements, waiving analysis and arguments, and waiving all notice requirements relating to conduct the election.

The next step to annex the property to CFD No. 2022-1 is to publish a notice of public hearing of the proposed annexation as required by the Mello-Roos Act. A public hearing on the matter will take place on December 13, 2023 and at that time the Council will formally consider approval of Annexation No. 9.

FISCAL IMPACT:

The projected levy for FY 2023-24 is $3,105 for the first year of Special Tax A maintenance services and Special Tax C, if needed, will generate $2,727. Annexing into the CFD will offset the City's costs to maintain the new public improvements. Costs related to the annexation are covered by developer deposits/fees for the project. There is no impact to the General Fund.

ATTACHMENTS:

Attachment 1 - ROI Annexation No. 9
Attachment 1 - Exhibits A - G
Attachment 2 - Project Map Annexation No. 9
Attachment 3 - CFD Maintenance Exhibit
469
RESOLUTION NO. 2023 -

A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF WILDOMAR, CALIFORNIA, DECLARING ITS

INTENTION TO ANNEX TERRITORY INTO
COMMUNITY FACILITIES DISTRICT NO. 2022-1
(SERVICES) OF THE CITY OF WILDOMAR, ADOPTING

A MAP OF THE AREA PROPOSED TO BE ANNEXED
(ANNEXATION NO. 9) AND AUTHORIZING THE LEVY

OF SPECIAL TAXES THEREIN
WHEREAS, on June 8, 2022, the City Council (the “City Council”) of the City of Wildomar (the “City”) approved Resolution No. 2022-30 establishing Community Facilities District No. 2022-1 (Services) ("CFD No. 2022-1"), of the City of Wildomar, County of Riverside, State of California, for the purpose of levying special taxes on parcels of taxable property therein for the purpose of providing certain services which are necessary to meet increased demands placed upon the City; and WHEREAS, the City Council has received a written instrument from the landowner to initiate and conduct proceedings pursuant to the Mello-Roos Community Facilities District Act of 1982 (the “Act”), to annex territory into CFD No. 2022-1 and consenting to the shortening of election time requirements, waiving analysis, and arguments, and waiving all notice requirements relating to the conduct of the election; and WHEREAS, the City Council has been advised that the landowner has requested that the area described and shown in Exhibit A be annexed into the boundaries of CFD No. 2022-1, that a rate and method of apportionment of special tax to be levied therein be established.

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF

WILDOMAR, ACTING EX OFFICIO AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES) OF THE CITY OF WILDOMAR, DETERMINE AND ORDER AS FOLLOWS:

Section 1. Intent to Annex. The City Council hereby declares that it proposes and intends to conduct proceedings pursuant to Article 3.5 of the Act for the annexation to CFD No. 2022-1 of the territory described in Exhibit A attached hereto. The City Council determines that the public convenience and necessity require that such territory be annexed into CFD No. 2022-1.

Section 2. Name of the Community Facilities District. The name of the existing community facilities district is known as “Community Facilities District No. 2022-1 (Services).”
470
Section 3. Description of Territory Proposed to be Annexed, Annexation Map. The territory proposed to be annexed is included within the boundaries within which property may annex to CFD No. 2022-1 and is more particularly described and shown on that certain map entitled “Proposed Boundary Map Community Facilities District No. 2022-1 of the City of Wildomar (Services) of the City of Wildomar, County of Riverside, State of California” as recorded on April 19, 2022 in Book 88 of Maps of Assessment and Community Facilities District, Pages 77, and as Instrument No. 2022- 0183915 in the official records of the County of Riverside. The territory proposed to be annexed to CFD No. 2022-1 is described in Exhibit A attached hereto and by this reference made a part hereof. Such territory is also shown and described on the map thereof entitled "Proposed Annexation Map No. 9, Community Facilities District No. 2022-1 (Services), City of Wildomar, County of Riverside, State of California," which is on file with the City Clerk (the "Annexation Map") and attached hereto as Exhibit D.

Section 4. Description of Authorized Services. The services proposed to be financed by CFD No. 2022-1 (the “Services”) are described in Exhibit B attached hereto. The cost of providing the Services includes “administrative expenses,” which include costs associated with the creation of CFD No. 2022-1, determination of the amount of special taxes, collection or payment of special taxes, or costs otherwise incurred in order to carry out the authorized purposes of CFD No. 2022-1. The Services authorized to be financed by CFD No. 2022-1 are in addition to those currently provided in the territory of CFD No. 2022-1 and do not supplant services already available within that territory.

Section 5. Levy of Special Taxes. Except where funds are otherwise available, a special tax sufficient to pay the costs of the Services (including administrative expenses), secured by recordation of a continuing lien against all nonexempt real property in CFD No. 2022-1, will be levied annually within CFD No. 2022-1. The rate and method of apportionment, and manner of collection of the special taxare specified in Exhibit C.

Section 6. Adoption of Annexation Map. Pursuant to Section 3110.5 of the Streets and Highways Code, the City Council adopts the Annexation Map attached hereto as Exhibit D as the map of the area proposed to be annexed to CFD No. 2022-1. Pursuant to Section 3111 of said Code, the City Clerk shall file the original of the Annexation map in her office and shall file a copy of the Annexation Map with the County Recorder of the County of Riverside no later than 15 days prior to the date of the hearing specified in Section 7 hereof.

Section 7. Public Hearing. The City Council hereby fixes 6:00 p.m., or as soon thereafter as practicable, on Wednesday, December 13, 2023, in the City Council Chambers located at 23873 Clinton Keith Rd., Wildomar, California 92595, as the time and place when and where the City Council will conduct a public hearing on the proposed annexation of the said territory to CFD No. 2022-1.

Section 8. Notice of Public Hearing. The City Clerk is hereby directed to publish, or cause to be published, a notice of said public hearing, in substantially the form attached hereto as Exhibit F, one time in a newspaper of general circulation published in the area of CFD No. 2022-1. The publication of said notice shall be completed at least seven days prior to the date herein fixed for said hearing. Said notice shall 471
contain the information prescribed by Section 53322 of the Act.

Section 9. Mailing Ballots. In anticipation of its action on Wednesday, December 13, 2023 to call the election on the annexation for the same date, pursuant to waiver of election time limits from the landowners, the City Council hereby authorizes the City Clerk to mail to each landowner in the territory proposed to be annexed to the CFD No. 2022-1 a ballot in substantially the form set forth in Exhibit G hereto. A copy of the waiver and consent form signed by the property owner is attached hereto as Exhibit E and incorporated herein by this reference.

PASSED, APPROVED, AND ADOPTED this 8th day of November 2023.

Joseph Morabito
Mayor
APPROVED AS TO FORM: ATTEST:

Thomas D. Jex Janet Morales
City Attorney City Clerk
472
EXHIBIT A
DESCRIPTION OF PROPOSED TERRITORY TO BE ANNEXED
473

DESCRIPTION OF PROPOSED TERRITORY TO BE ANNEXED
The City of Wildomar Community Facilities District No. 2022-1 (Services) (the “CFD No. 2022-1”) Annexation No. 9, is currently comprised of one (1) parcel located within the city boundaries. The property is identified by the following Riverside County Assessor's Parcel Number (APN).

APN Owner Name
366-290-011 DMSD Cajun Properties LLC

474
City of Wildom
ar  17
Community Facilities District No. 2022‐1 (Services)
EXHIBIT B

DESCRIPTION OF SERVICES
475

CITY OF WILDOMAR
COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES)

DESCRIPTION OF AUTHORIZED SERVICES

The services which may be financed with proceeds of the special tax of CFD No. 2022-1, as provided by Section 53313 of the Act, will include all costs attributable to maintaining, servicing, cleaning, repairing and/or replacing landscaped areas (may include reserves for replacement) in public street right-of-ways, public landscaping, public open spaces and other similar landscaped areas officially dedicated for public use. In addition, the services which may include some or all costs attributable to police protection, and fire services. These services including the following:

(a) maintenance and lighting of parks, parkways, streets, roads and open space, which maintenance and lighting services may include, without limitation, furnishing of electrical power to street lights; repair and replacement of damaged or inoperative light bulbs, fixtures and standards; maintenance (including irrigation and replacement) of landscaping vegetation situated on or adjacent to parks, parkways, streets, roads and open space; maintenance and repair of irrigation facilities; maintenance of public signage; graffiti removal from and maintenance and repair of public structures situated on parks, parkways, streets, roads and open space; maintenance and repair of playground or recreation program equipment or facilities situated on any park; and

(b) maintenance and operation of water quality improvements which include storm drainage and flood protection facilities, including, without limitation, drainage inlets, catch basin inserts, infiltration basins, flood control channel s, fossil fuel filters, and similar facilities.

Maintenance services may include but is not limited to the repair, removal or replacement of all or part of any of the water quality improvements, fossil fuel filters within the public right-of-way including the removal of petroleum hydrocarbons and other pollutants from water runoff, or appurtenant facilities, clearing of inlets and outlets; erosion repairs; and cleanup to improvements, and other items necessary for the maintenance, servicing; or both of the water quality basin improvements within flood control channel improvements; and

(c) public street sweeping, on the segments of the arterials within the boundaries of CFD No. 2022-1; as well as local roads within residential subdivisions located within CFD No. 2022-1; and any portions adjacent to the properties within CFD No. 2022-1; and

(d) police protection services, including but not limited to criminal justice services, and fire protection and suppression services.

In addition to payment of the cost and expense of the forgoing services, proceeds of the special tax may be expended to pay “Administrative Expenses,” as said term is defined in the Rate and Method of Apportionment.

The above services shall be limited to those provided within the boundaries of CFD No. 2022-1 or for the benefit of the properties within the boundaries of CFD No. 2022-1, as the boundary is expanded from time to time by anticipated annexations, and said services may be financed by proceeds of the special tax of CFD No. 2022-1 only to the extent that they are in addition to those provided in the territory of CFD No. 2022-1 before CFD No. 2022-1 was created. 476

EXHIBIT C

RATE AND METHOD OF APPORTIONMENT
477
City of Wildomar 1
Community Facilities District No. 2022-1 (Services)

RATES AND METHOD OF APPORTIONMENT OF SPECIAL TAX FOR
COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES)

OF THE CITY OF WILDOMAR

Special Taxes (defined below) shall be levied on and collected from each Assessor’s Parcel (defined below) in Community Facilities District No. 2022-1 (Services) of the City of Wildomar (the “ CFD No. 2022-1 ” or “CFD”; defined below), in each Fiscal Year, (defined below), commencing in the Fiscal Year beginning July 1, 2022, in an amount determined by the City Council of the City of Wildomar, acting ex officio as the legislative body of CFD No. 2022-1 , by applying the rates and method of apportionment set forth below.

All of the real pro perty in CFD No. 2022-1, unless exempted by law or by the provisions herein, shall be taxed to the extent and in the manner provided herein.

A. DEFINITIONS

“Accessory Dwelling Unit” means a residential unit of limited size including a smaller second unit that shares an Assessor’s Parcel as a Single Family Residential Property with a stand-alone Residential Unit.

“Acre” or “Acreage” means the land area of an Assessor’s Parcel as shown on any Assessor’s Parcel Map, or if the land area is not shown on the Assessor’s Parcel Map, the land area as shown on the applicable Final Map, or if the area is not shown on the applicable Final Map, the land area shall be calculated by the Administrator.

“Administrative Expenses” means the actual or reasonably estimated costs directly related to the formation, annexation, and administration of CFD No. 2022-1 including, but not limited to: the costs of computing the Special Taxes and preparing the annual Special Tax collection schedules (whether by the City or designee thereof or both); the costs to the City, CFD No. 2022-1, or any designee thereof associated with fulfilling the CFD No. 2022-1 disclosure requirements; the costs associated with responding to public inquiries regarding the Special Taxes; the costs of the City, CFD No. 2022-1 or any designee thereof related to an appeal of the Special Tax; and the City's annual administration fees and third party expenses.

Administrative Expenses shall also include amounts estimated or advanced by the City or CFD No. 2022 - 1 for any other administrative purposes of CFD No. 2022-1 , including attorney's fees and other costs related to commencing and pursuing to completion any foreclosure of delinquent Special Taxes.

“Administrator” means the City Manager of the City of Wildomar, or his or her designee.

“Approved Property” means all Assessor’s Parcels of Taxable Property that are included in a Final Map that was recorded prior to the March 1 of preceding the Fiscal Year in which the Special Tax is being levied and for which no building permit for new construction has been issued on or prior to March 1 preceding the Fiscal Year in which the Special Tax is being levied.

“Assessor’s Parcel” means a lot or parcel of land that is identifiable by an Assessor’s Parcel Number by the County Assessor of the County of Riverside.

“Assessor’s Parcel Map” means an official map of the Assessor of the County designating parcels by Assessor’s Parcel Number.

“Assessor’s Parcel Number” means that identification number assigned to a parcel by the County Assessor of the County.

"Building Permit" means the first legal document issued by the City giving official permission for new 478
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construction. For purposes of this definition, “Building Permit” may or may not include expired or cancelled building permits, or any subsequent building permit document(s) authorizing new construction on an Assessor’s Parcel that are issued or changed by the City after the first original issuance, as determined by the CFD Administrator

“Building Square Footage” or “BSF” means the floor area square footage reflected on the original construction building permit issued for construction of a building of Non -Residential Property and any Building Square Footage subsequently added to a building of such Taxable Property after iss uance of a building permit for expansion or renovation of such building.

"Calendar Year" means the period commencing January 1 of any year and ending the following December

31. “CFD” or “CFD No. 2022- 1” means Community Facilities District No. 2022-1 (Services) of the City of Wildomar.

“City” means the City of Wildomar.

“Contingent Services” means services permitted under the Mello-Roos Community Facilities Act of 1982 including, without limitation, those services authorized to be funded by CFD No. 2022-1 as set forth in the documents adopted by the City Council at the time the CFD was formed to be provided by the City in the event the Administrator makes a determination pursuant to Section C( 3) that a Property Owners’ Association fails to adequately provide such services.

“County” means the County of Riverside.

“Developed Property” means all Assessor’s Parcels that: (i) are included in a Final Map that was recorded prior to the January 1
st preceding the Fiscal Year in which the Special Tax is being levied, and (ii) have an Assessor’s Parcel Number from the County shown on an Assessor’s Parcel Map for the individual lot included on the Final Map, and (iii) a Building Permit for new construct ion was issued on or before May 1st preceding the Fiscal Year in which the Special Tax is being levied.

“Exempt Property” means all Assessors’ Parcels designated as being exempt from the Special Tax as provided for in Section G.

“Final Map” means a subdivision of property by recordation of a final map, parcel map, or lot line adjustment, pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) or recordation of a condominium plan pursuant to California Civil Code 6624 that creates individual lots for which building permits may be issued without further subdivision.

“Fiscal Year” means the period from and including July 1st of any year to and including the following June 30th.

“Land Use Category” or “LUC” means, any of the categories contained in Section B hereof to which an Assessor’s Parcel is assigned consistent with the land use approvals that have been received or proposed for the Assessor’s Parcel as of March 1 preceding the Fiscal Year in which the Special Tax is being levied.

“Maximum Special Tax” means the Maximum Special Tax A, Maximum Special Tax B, and/or Maximum Special Tax C (Contingent), as applicable.

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“Maximum Special Tax A” means the Maximum Special Tax A, as determined in accordance with Section C, below, that can be levied in any Fiscal Year on any Assessor's Parcel within CFD No. 2022-1.

“Maximum Special Tax B” means the Maximum Special Tax B, as determined in accordance with Section C, below, that can be levied in any Fiscal Year on any Assessor's Parcel within CFD No. 2022-1.

“Maximum Special Tax C (Contingent) ” means for each Assessor’s Parcel and each Fiscal Year, the maximum Special Tax C (Contingent), as determined in accordance with Section C below that can be levied on such Assessor’s Parcel in such Fiscal Year.

“Multi-Family Residential Property” or “MFR” means any Assessor’s Parcel of residential property that consists of a building or buildings comprised of attached Residential Units available for rental, but not purchase, by the general public and under common management.

“Non-Residential Property” or “NR” means, all Assessor's Parcels of Taxable Property for which a building permit(s) was issued for a non -residential use. The Administrator shall make the determination if an Assessor’s Parcel is Non-Residential Property.

“Property Owner’s Association” or “POA” means the property owner’s association or homeowner’s association established to maintain certain services within a Tax Zone.

“Proportionately” means for Taxable Property that is: (i) Developed Property, that the ratio of the actual Special Tax levy to the Maximum Special Tax is the same for all Parcels of Developed Property, (ii) Approved Property, that the ratio of the actual Special Tax levy to the Maximum Special Tax is the same for all Parcels of Approved Property, and (iii) Undeveloped Property that the ratio of the actual Special Tax levy per acre to the Maximum Special Tax per acre is the same for all Parcels of Undeveloped Property.

“Residential Unit” or "RU" means a residential unit that is used or intended to be used as a domicile by one or more persons, as determined by the Administrator. An Accessory Dwelling Unit that shares an Assessor’s Parcel with a Single Family Residential Property shall not be considered a Residential Unit for purposes of this RMA.

“Residential Property” means all Assessor’s Parcels of Taxable Property upon which completed Residential Units have been constructed or for which building permits have been or may be issued for purposes of constructing one or more Residential Units.

“RMA" means this Rate and Method of Apportionment of Special Taxes.

“Service(s)” means services permitted under the Mello-Roos Community Facilities Act of 1982 including, without limitation, those services authorized to be funded by CFD No. 2022-1 as set forth in the documents adopted by the City Council at the time the CFD was formed.

“Single Family Residential Property” or “SFR” means any residential property that consists of a building comprised of attached or detached residential units available for purchase or rent by the general public.

“Special Tax(es)” means the Special Tax A and/or Special Tax B and/or Special Tax C (Contingent) to be levied in each Fiscal Year on each Assessor’s Parcel of Taxable Property.

“Special Tax A” means the annual special tax to be levied in each Fiscal Year on each Assessor’s Parcel of Taxable Property to fund the Special Tax A Requirement. 480
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"Special Tax A Requirement" means that amount to be collected in any Fiscal Year to pay for certain costs as required to meet the needs of CFD No. 2022-1 in the next Fiscal Year. The costs to be covered shall be the direct costs for maintenance services including but not limited to (i) maintenance and lighting of parks, parkways, streets, roads, and open space, (ii) maintenance and operation of water quality improvements, (iii) public street sweeping, (iv) fund an operating reserve for the costs of Services as determined by the Administrator, and (v) Administrative Expenses. Under no circumstances shall the Special Tax A Requirement include funds for bonds or other forms of indebtedness.

“Special Tax B” means the annual special tax to be levied in each Fiscal Year on each Assessor’s Parcel of Developed Property to fund the Special Tax B Requirement.

"Special Tax B Requirement" means that amount to be collected in any Fiscal Year to pay for certain costs as required to meet the needs of CFD No. 2022-1 in the next Fiscal Year. The costs to be covered shall be the direct costs for (i) police protection services, (ii) fire protection and suppression services, (iii) fund an operating reserve for the costs of Services as determined by the Administrator, and (iv) Administrative Expenses. Under no circumstances shall the Special Tax B Requirement include funds for bonds or other forms of indebtedness.

“Special Tax C (Contingent)” means the annual special tax to be levied in each Fiscal Year on each Assessor’s Parcel of Taxable Property to fund the Special Tax C (Contingent) Requirement, if required.

“Special Tax C (Contingent) Requirement” means that amount requi red in any Fiscal Year, if the P OA is unable to maintain the Contingent Service(s) to: (i) pay the costs of Contingent Services incurred or otherwise payable in the Calendar Year commencing in such Fiscal Year; (ii) fund an operating reserve for the costs of Contingent Services as determined by the Administrator; less a credit for funds available to reduce the annual Special Tax C (Contingent) levy as determined by the Administrator . Under no circumstances shall the Special Tax C (Contingent) Requirement include funds for bonds or other forms of indebtedness..

"Taxable Property" means all Assessor’s Parcels within CFD No. 2022-1, which are not Exempt Property.

“Taxable Unit” means a Residential Unit, Building Square Footage, or an Acre.

"Tax Zone" means a mutually exclusive geographic area, within which particular Special Tax rates may be levied pursuant to this Rate and Method of Apportionment of Special Tax.

"Tax Zone Original" means the geographic area the specific area identified on the CFD Boundary Map as Tax Zone Original.

"Tract(s)" means an area of land within a subdivision identified by a particular tract number on a Final Map approved for the subdivision.

“Undeveloped Property” means, for each Fiscal Year, all Taxable Property not classified as Developed Property or Approved Property.

B. ASSIGNMENT TO LAND USE CATEGORIES

For each Fiscal Year, all Assessor’s Parcels of Taxable Property within CFD No. 2022-1 shall be classified as Developed Property, Approved Property, or Undeveloped Property, and shall be subject to the levy of Special Taxes as determined pursuant to Sections C and D below. Assessor’s Parcels of Developed Property 481
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and Approved Property shall be classified as either Residential Property or Non-Residential Property.

Residential Property shall be further classified as Single Family Residential Property or Multi -Family Residential Property and the number of Residential Units shall be determined by the Administrator.

C. MAXIMUM SPECIAL TAX RATES

For purposes of determining the applicable Maximum Special Tax for Assessor’s Parcels of Developed Property and Approved Property which are classified as Residential Property, all such Assessor’s Parcels shall be assigned the number of Residential Unit(s) constructed or to be constructed thereon as specified in or shown on the building permit(s) issued or Final Map as determined by the Administrator. Once a single family attached or multi-family building or buildings have been built on an Assessor's Parcel , the Administrator shall determine the actual number of Residential Units contained within the building or buildings, and the Special Tax A and Special Tax C (Contingent) levied against the Assessor’s Parcel in the next Fiscal Year shall be calculated by multiplying the actual number of Residential Units by the Maximum Special Tax per Residential Unit for the Tax Zone below or as included in Appendix A as each annexation occurs.

For purposes of determining the applicable Maximum Special Tax for Assessor’s Parcels of Developed Property and Approved Property which are classified as Non -Residential Property, all such Assessor’s Parcels shall be assigned the number of Building Square Footage or Acres as shown on the Final Map as determined by the Administrator. Once the Administrator determines the actual number of Building Square Footage or Acres for the Assessor’s Parcels, the Special Tax A, Special Tax B, and Special Tax C (Contingent) levied against the Assessor’s Parcel in the next Fiscal Year shall be calculated by multiplying the number of Building Square Footage or Acres by the Maximum Special Tax per Taxable Unit identified for the applicable Tax Zone below or as included in Appendix A as each annexation occurs.

1. Special Tax A

a. Developed Property

(i) Maximum Special Tax A

The Maximum Special Tax A for each Assessor’s Parcel of Developed Property shall be specific to each Tax Zone within the CFD. When additional property is annexed into CFD No. 2022-1, Appendix A to this RMA shall be updated to reflect the Maximum Special Tax A for Developed Property for the Tract or Tracts annexed and the Special Tax A shall be levied up to the Maximum Special Tax A for Developed Property for such Tract or Tracts as specified in such updated Appendix A for the annexed property which shall reflect the Maximum Special Tax for the Tract or Tracts annexed. The Maximum Special Tax A for Fiscal Year 2022-2023 for a Residential Unit of Developed Property within the Tax Zone Original are identified in Table 1 below:

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TABLE 1

MAXIMUM SPECIAL TAX A RATES

DEVELOPED PROPERTY
FISCAL YEAR 2022-2023

Tax
Zone Tract Land Use Category
Taxable
Unit
Maximum
Special Tax A
Original TR 36672
Single Family Residential Property RU $408
Multi-Family Residential Property RU $408
Non-Residential Property Acre $5,267

(ii) Increase in the Maximum Special Tax A

On each July 1, commencing on July 1, 2023 with respect to Tax Zone Original, the Maximum Special Tax A for Developed Property shall increase by i) the percentage increase in the Consumer Price Index for all Urban Consumers for the Riverside -San Bernardino -Ontario California Standard Metropolitan Statistical Area since the beginning of the preceding Fiscal Year, not to exceed 6%, or ii) by two percent (2.0%), whichever is greater.

(iii) Multiple Land Use Categories

In some instances an Assessor's Parcel of Developed Property may contain more than one Land Use Category. The Maximum Special Tax A that can be levied on an Assessor's Parcel shall be the sum of the Maximum Special Tax A that can be levied for each Land Use Category located on that Assessor's Parcel. For an Assessor's Parcel that contains more than one land use, the Acreage of such Assessor's Parcel shall be a llocated to each type of property based on the amount of Acreage designated for each land use as determined by reference to the site plan approved for such Assessor's Parcel. The Administrator's allocation to each type of property shall be final.

b. Approved Property

The Maximum Special Tax A for each Assessor’s Parcel of Approved Property in Table 2 is specific to each Tax Zone within the CFD. When additional property is annexed into CFD No. 2022 -1, the Appendix A to this rate and method shall be updated to reflect the Maximum Special Tax A for Approved Property for the Tract or Tracts annexed and the Special Tax A shall be levied up to the Maximum Special Tax A for Approved Property for such Tract or Tracts as specified in such updated Appendix A. The Maximum Special Tax A for Fiscal Year 2022-2023 per Residential Unit for Approved Property within Tax Zone Original is identified in Table 2 below:

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TABLE 2

MAXIMUM SPECIAL TAX A RATES

APPROVED PROPERTY
FISCAL YEAR 2022-2023

Tax
Zone Tract Land Use Category
Taxable
Unit
Maximum
Special Tax A
Original TR 36672
Single Family Residential Property RU $408
Multi-Family Residential Property RU $408
Non-Residential Property Acre $5,267

On each July 1, commencing on July 1, 2023 with respect to Tax Zone Original, the Maximum Special Tax A for Approved Property shall increase by i) the percentage increase in the Consumer Price Index for all Urban Consumers for the Riverside-San Bernardino-Ontario California Standard Metropolitan Statistical Area since the beginning of the preceding Fiscal Year, not to exceed 6%, or ii) by two percent (2.0%), whichever is greater.

c. Undeveloped Property

The Maximum Special Tax A for each Assessor’s Parcel of Undeveloped Property shall be specific to each Tax Zone within the CFD. When additional property is annexed into CFD No. 2022-1, Appendix A to this rate and method adopted shall be updated to reflect the Maximum Special Tax A for Undeveloped Property for the Tract or Tracts annexed and the Special Tax A shall be levied up to the Maximum Special Tax A for Undeveloped Property for such Tract or Tracts as specified in such updated Appendix A. The Maximum Special Tax A for Fiscal Year 2022-2023 per acre of Undeveloped Property within Tax Zone Original is identified in Table 3 below:

TABLE 3

MAXIMUM SPECIAL TAX A RATES

UNDEVELOPED PROPERTY
FISCAL YEAR 2022-2023

Tax Zone Tracts Taxable Unit Maximum Special Tax A
Original TR 36672 Acre $5,267

On each July 1, commencing on July 1, 2023 with respect to Tax Zone Original, the Maximum Special Tax A for Undeveloped Property shall increase by i) the percentage increase in the Consumer Price Index for all Urban Consumers for the Riverside- San Bernardino -Ontario California Standard Metropolitan Statistical Area since the beginning of the preceding Fiscal Year, not to exceed 6%, or ii) by two percent (2.0%), whichever is greater.

2. Special Tax B

The Special Tax B is an annual Special Tax that shall be levied on Developed Property to fund the Special Tax B Requirement.

a. Developed Property

(i) Maximum Special Tax B

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The Maximum Special Tax B for Fiscal Year 2022-2023 for each Land Use Category within Tax Zone Original is shown in Table 4. When additional property is annexed into CFD No. 2022-1, Appendix A to this rate and method shall be updated to reflect the Maximum Special Tax B for the Tract or Tracts annexed and the Special Tax B shall be levied up to the Maximum Special Tax B for Developed Property for such Tract or Tracts as specified in such updated Appendix A.

TABLE 4

MAXIMUM SPECIAL TAX B RATES

DEVELOPED PROPERTY
FISCAL YEAR 2022-2023

Land Use Category Unit Maximum Special Tax B
Single Family Residential Property RU $430
Multi-Family Residential Property RU $305

On each July 1, commencing on July 1, 2023 with respect to Tax Zone Original, the Maximum Special Tax B for Developed Property shall increase by i) the percentage increase in the Consumer Price Index for all Urban Consumers for the Riverside -San Bernardino -Ontario California Standard Metropolitan Statistical Area since the beginning of the preceding Fiscal Year, not to exceed 6%, or ii) by five percent (5.0%), whichever is greater.

The Special Tax B shall not be levied on Approved or Undeveloped Property.

3. Special Tax C (Contingent)

The City Council shall levy Special Tax C (Contingent) only in the event the POA defaults in its obligation to maintain the Contingent Services, which default shall be deemed to have occurred, as determined by the Administrator, in each of the following circumstances:

(a) The POA files for bankruptcy;
(b) The POA is dissolved;
(c) The POA ceases to levy annual assessments for the Contingent Services; or (d) The POA fails to provide the Contingent Services at the same level as the City provides similar services and maintains similar improvements throughout the City and within ninety (90) days after written notice from the City, or such longer period permitted by the City Manager, fails to remedy the deficiency to the reasonable satisfaction of the City Council.

a. Developed Property

(i) Maximum Special Tax C (Contingent)

The Maximum Special Tax C (Contingent) for each Assessor’s Parcel of Taxable Property shall be specific to each Tax Zone within the CFD. When additional property is annexed into CFD No. 2022- 1, Appendix A to this rate and method shall be updated to reflect Maximum Special Tax C (Contingent) for the Tract or Tracts annexed and the Special Tax C (Contingent) shall be levied up to the Maximum Special Tax C (Contingent) for Developed Property for such Tract or Tracts as specified in such updated Appendix A. The Maximum Special Tax C (Contingent) for Fiscal Year 2022- 2023 within Tax Zone Original is identified in Table 5 below:

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TABLE 5

MAXIMUM SPECIAL TAX C (CONTINGENT) RATES

DEVELOPED PROPERTY
FISCAL YEAR 2022-2023

Tax
Zone Tract Land Use Category
Taxable
Unit
Maximum
Special Tax C
(Contingent)
Original TR 36672
Single Family Residential Property RU $261
Multi-Family Residential Property RU $261
Non-Residential Property Acre $3,372

(ii) Increase in the Maximum Special Tax C (Contingent)

On each July 1, commencing on July 1, 2023 with respect to Tax Zone Original, the Maximum Special Tax C (Contingent) for Developed Property shall increase by i) the percentage increase in the Consumer Price Index for all Urban Consumers for the Riverside-San Bernardino -Ontario California Standard Metropolitan Statistical Area since the beginning of the preceding Fiscal Year, not to exceed 6%, or ii) by two percent (2.0%), whichever is greater.

(iii) Multiple Land Use Categories

In some instances, an Assessor's Parcel of Developed Property may contain more than one Land Use Category. The Maximum Special Tax C (Contingent) that can be levied on an Assessor's Parcel shall be the sum of the Maximum Special Tax C (Contingent) that can be levied for each Land Use Category located on that Assessor's Parcel. For an Assessor's Parcel that contains more than one land use, the Acreage of such Assessor's Parcel shall be allocated to each type of property based on the amount of Acrea ge designated for each land use as determined by reference to the site plan approved for such Assessor's Parcel. The Administrator's allocation to each type of property shall be final.

b. Approved Property

The Maximum Special Tax C (Contingent) for each Assessor’s Parcel of Approved Property shall be specific to each Tax Zone within the CFD. When additional property is annexed into CFD No. 2022- 1, Appendix A to this rate and method shall be updated to reflect the Maximum Special Tax C (Contingent) for the Tract or Tracts annexed and the Special Tax C (Contingent) shall be levied up to the Maximum Special Tax C (Contingent) for Approved Property for such Tract or Tracts as specified in such updated Appendix A. The Maximum Special Tax C (Contingent) for Fiscal Year 2022- 2023 within Tax Zone Original is identified in Table 6 below:
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TABLE 6

MAXIMUM SPECIAL TAX C (CONTINGENT) RATES

APPROVED PROPERTY
FISCAL YEAR 2022-2023

Tax
Zone Tract Land Use Category
Taxable
Unit
Maximum
Special Tax C
(Contingent)
Original TR 36672
Single Family Residential Property RU $261
Multi-Family Residential Property RU $261
Non-Residential Property Acre $3,372

On each July 1, commencing on July 1, 2023 with respect to Tax Zone Original, the Maximum Special Tax C (Contingent) for Approved Property shall increase by i) the percentage increase in the Consumer Price Index for all Urban Consumers for the Riverside-San Bernardino -Ontario California Standard Metropolitan Statistical Area since the beginning of the preceding Fiscal Year, not to exceed 6%, or ii) by two percent (2.0%), whichever is greater.

c. Undeveloped Property

The Maximum Special Tax C (Contingent) for each Assessor’s Parcel of Undeveloped Property shall be specific to each Tax Zone within the CFD. When additional property is annexed into CFD No. 2022-1, Appendix A to this rate and method shall be updated to reflect the Maximum Special Tax C (Contingent) for the Tract or Tracts annexed and the Special Tax C (Contingent) shall be levied up to the Maximum Special Tax C (Contingent) for Undeveloped Property for such Tract or Tracts as specified in such updated Appendix A. The Maximum Special Tax C (Contingent) for Fiscal Year 2022-2023 within Tax Zone Original is identified in Table 7 below:

TABLE 7

MAXIMUM SPECIAL TAX C (CONTINGENT) RATES

UNDEVELOPED PROPERTY
FISCAL YEAR 2022-2023

Tax Zone Tract Taxable Unit
Maximum Special
Tax C (Contingent)
Original TR 36672 Acre $3,372

On each July 1, commencing on July 1, 2023 with respect to Tax Zone Original, the Maximum Special Tax C (Contingent) for Undeveloped Property shall increase by i) the percentage increase in the Consumer Price Index for all Urban Consumers for the Riverside-San Bernardino -Ontario California Standard Metropolitan Statistical Area since the beginning of the preceding Fiscal Year, not to exceed 6%, or ii) by two percent (2.0%), whichever is greater.

D. METHOD OF APPORTIONMENT OF ANNUAL SPECIAL TAX

1. Special Tax A

Commencing with Fiscal Year 2022-2023 and for each following Fiscal Year in which Special Tax A is authorized to be levied, the Council shall determine the Special Tax A Requirement and shall levy 487
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the Special Tax A on all Assessor’s Parcels of Taxable Property until the aggregate amount of Special Tax A equals the Special Tax A Requirement. The Special Tax A shall be levied for each Fiscal Year within each Tax Zone as follows:

First: The Special Tax A shall be levied Proportionately on all Assessor’s Parcels of Developed Property up to 100% of the applicable Maximum Special Tax A to satisfy the Special Tax A Requirement;

Second: If additional moneys are needed to satisfy the Special Tax A Requirement after the first step has been completed, the Special Tax A shall be levied Proportionately on each Parcel of Approved Property at up to 100% of the Maximum Special Tax A for Approved Property;

Third: If additional monies are needed to satisfy the Special Tax A Requirement after the first two steps has been completed, the Special Tax A shall be levied Proportionately on all Assessor’s Parcels of Undeveloped Property up to 100% of the Maximum Special Tax A for Undeveloped Property.

2. Special Tax B

Commencing with Fiscal Year 2022-2023 and for each following Fiscal Year, the Council shall determine the Special Tax B Requirement and shall levy the Special Tax B until the aggregate amount of Special Tax B equals the Special Tax B Requirement.

The Special Tax B shall be levied Proportionately on all Assessor’s Parcels of Developed Property up to 100% of the applicable Maximum Special Tax B to satisfy the Special Tax B Requirement.

3. Special Tax C (Contingent)

Commencing with the first Fiscal Year in which Special Tax C (Contingent) is authorized to be levied and for each following Fiscal Year, the City Council shall determine the Special Tax C (Contingent) Requirement for each Tax Zone, if any, and shall levy the Special Tax on all Assessor’s Parcels of Taxable Property within such Tax Zone until the a ggregate amount of Special Tax C (Contingent) equals the Special Tax C (Contingent) Requirement for such Tax Zone. The Special Tax C (Contingent) shall be levied for each Fiscal Year as follows:

First: The S pecial Tax C (Contingent) shall be levied P roportionately on all Assessor’s Parcels of Developed Property up to 100% of the applicable Maximum Special Tax C (Contingent) to satisfy the Special Tax C (Contingent) Requirement;

Second: If additional moneys are needed to satisfy the Special Tax C (Contingent) Requirement after the first step has been completed, the Special Tax C (Contingent) shall be levied Proportionately on each Parcel of Approved Property at up to 100% of the Maximum Special Tax C (Contingent) for Approved Property;

Third: If additional monies are needed to satisfy the Special Tax C (Contingent) Requirement after the first two steps has b een completed, the Special Tax C (Contingent) shall be levied Proportionately on all Assessor’s Parcels of Undeveloped Property up to 100% of the Maximum Special Tax C (Contingent) for Undeveloped Property.

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E. FUTURE ANNEXATIONS

It is anticipated that additional properties will be annexed to CFD No. 2022-1 from time to time. As each annexation is proposed, an analysis will be prepared to determine the annual cost for providing Services.

Based on this analysis, the property to be annexed, pursuant to California Government Code section 53339 et seq. will be assigned to the appropriate Maximum Special Tax rate for the Tract or Tracts when annexed.

F. TERM OF SPECIAL TAX

For each Fiscal Year, the Special Taxes shall be levied as long as the Services are being provided.

G. EXEMPTIONS

The City shall classify as Exempt Property within CFD No. 2022-1 , any Assessor’s Parcel in any of the following categories; (i) Assessor’s Parcels which are owned by, irrevocably offered for dedication, encumbered by or restricted in use by any public entity; (ii) Assessor’s Parcels with public or utility easements making impractical their utilization for other than the purposes set forth in the easement; (iii) Assessor’s Parcels which are privately owned but are encumbered by or restricted solely for publi c uses; or (iv) any Assessor’s Parcel which is in use in the performance of a public function as determined by the Administrator. No Special Tax shall be levied on property which, at the time of adoption of the Resolution of Formation for CFD No. 2022-1, is an Exempt Property.

H. APPEALS

Any property owner claiming that the amount or application of the Special Taxes are not correct may file a written notice of appeal with the City not later than twelve months after having paid the first installment of the Special Tax(es) that is disputed. A representative(s) of CFD No. 2022-1 shall promptly review the appeal, and if necessary, meet with the property owner, consider written and oral evidence regarding the amount of the Special Tax, and rule on the appeal. If the representative’s decision requires that the Special Tax for an Assessor’s Parcel be modified or changed in favor of the property owner, a cash refund shall not be made, but an adjustment shall be made to the Special Tax on that Assessor’s Parcel in the subsequent Fiscal Year(s).

I. MANNER OF COLLECTION

The Special Tax(es) shall be collected in the same manner and at the same time as ordinary ad valorem property taxes, provided, however, that CFD No. 2022-1 may collect the Special Tax at a different time or in a different manner if necessary to meet its financial obligations.

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APPENDIX A

CITY OF WILDOMAR
COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES)

COST ESTIMATE

Special Tax A Services – The estimate breaks down the costs of providing one year’s maintenance services for FY 2023-2024. These services are being funded by the levy of Special Tax A for Community Facilities District No. 2022-1 (Services).

TAX ZONE 9 – SPECIAL TAX A
PP 21-0138
Item Description Estimated Cost
1 Lighting $389
2 Streets $1,667
3 Reserves $149
4 Admin $900
Total $3,105

Special Tax B Services – Tax Zone 9 consists of a non -residential parcel and therefore will not be subject to the cost of providing police and fire protection services funded by Special Tax B.

Special Tax C (Contingent) Services – The estimate in the table below breaks down the costs of providing one year’s contingent maintenance services for Fiscal Year 2023 -24. If necessary, these services will be funded by the levy of Special Tax C (Contingent) for Community Facilities District No. 2022-1 (Services).

TAX ZONE 9 – SPECIAL TAX C (Contingent)
PP 21-0138
Item Description Estimated Cost
1 Landscaping $1,661
2 Reserves $166
3 Admin $900
Total $2,727

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TAX ZONE 9
PP 21-0138
FY 2023-2024 MAXIMUM SPECIAL TAX RATES

Taxable
Property
Land Use
Category
Taxable
Unit
Maximum
Special Tax A
Maximum
Special Tax B
Maximum
Special Tax C
(Contingent)
Developed Property Non-Residential Acre $2,700 N/A $2,372 Approved Property Non-Residential Acre $2,700 N/A $2,372 Undeveloped Property Non-Residential Acre $2,700 N/A $2,372

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MAXIMUM SPECIAL TAXES ASSIGNED TO EACH TAX ZONE

FOR DEVELOPED PROPERTY

Tax
Zone
Fiscal
Year
Included Tract
No. of
Taxable
Units LUC
Taxable
Unit
Maximum
Special
Tax A
Maximum
Special
Tax B
Maximum
Special Tax C
(Contingent) Subdivider
Original 2022-23 TR 36672 136 SFR RU $408 $430 $261 Lennar Homes 1 2022-23 PP 13-0089 170 MFR RU $203 $305 $0
Villa Siena Property
LLC
2 2022-23 TR 37476 77 SFR RU $583 $430 $262 KB Home Coastal Inc. 3 To Be Determined
4 2023-24 PM 37941 9.62 NR Acre $4,060 $0 $0
Strata Baxter, LLC and
Kaiser Foundation
Health Plan, Inc.
5 2023-24 TR 31896 117 SFR RU $788 $451.50 $503
D.R. Horton Los
Angeles Holding Co.
6 2023-24 LLA 2022-004 89 MFR RU $153 $320.25 $0 Wildomar Tres Lagos Partners LP
7 To Be Determined
8 To Be Determined
9 2023-24 PP 21-0138 1.15 NR Acre $2,700 $0 $2,372 DMSD Cajun Properties LLC

ESCALATION OF MAXIMUM SPECIAL TAXES

Maximum Special Tax A - On each July 1, the Maximum Special Tax A for Developed Property, Approved Property and Undeveloped Property shall increase by i) the percentage increase in the Consumer Price Index for all Urban Consumers for the Riverside-San Bernardino-Ontario California Standard Metropolitan Statistical Area since the beginning of the preceding Fiscal Year, not to exceed 6%, or ii) by two percent (2.0%), whichever is greater.

Maximum Special Tax B - On each July 1, the Maximum Special Tax B for Developed Property shall increase by i) the percentage increase in the Consumer Price Index for all Urban Consumers for the Riverside-San Bernardino-Ontario California Standard Metropolitan Statistical Area since the beginning of the preceding Fiscal Year, not to exceed 6%, or ii) by five percent (5.0%), whichever is greater.

Maximum Special Tax C (Contingent) - On each July 1, the Maximum Special Tax C (Contingent) for Developed Property, Approved Property and Undeveloped Property shall increase by i) the percentage increase in the Consumer Price Index for all Urban Consumers for the Riverside-San Bernardino -Ontario California Standard Metropolitan Statistical Area since the beginning of the preceding Fiscal Year, not to exceed 6%, or ii) by two percent (2.0%), whichever is greater.

492
City of Wildomar 16
Community Facilities District No. 2022-1 (Services)

EXHIBIT B

CITY OF WILDOMAR
COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES)

DESCRIPTION OF AUTHORIZED SERVICES

The services which may be financed with proceeds of the special tax of CFD No. 2022 -1, as provided by Section 53313 of the Act, will include all costs attributable to maintaining, servicing, cleaning, repairing and/or replacing landscaped areas (may include reserves for replacement) in public street right- of-ways, public landscaping, public open spaces and other similar landscaped areas officially dedicated for public use. In addition, the services which may include some or all costs attributable to police protection, and fire services. These services including the following:

(a) maintenance and lighting of parks, parkways, streets, roads and open space, which maintenance and lighting services may include, without limitation, furnishing of electrical power to street lights; repair and replacement of damaged or inoperative light bulbs, fixtures and standards; maintenance (including irrigation and replacement) of landscaping vegetation situated on or adjacent to parks, parkways, streets, roads and open space; maintenance and repair of irrigation facilities; maintenance of public signage; graffiti removal from and maintenance and repair of public structures situated on parks, parkways, streets, roads and open space; maintenance and repair of playground or recreation program equipment or facilities situated on any park; and

(b) maintenance and operation of water quality improvements which include storm drainage and flood protection facilities, including, without limitation, drainage inlets, catch basin inserts, infiltration basins, flood control channels, fossil fuel filters, and similar facilities. Maintenance services may include but is not limited to the repair, removal or replacement of all or part of any of the water quality improvements, fossil fuel filters within the public right -of-way including the removal of petroleu m hydrocarbons and other pollutants from water runoff, or appurtenant facilities, clearing of inlets and outlets; erosion repairs; and cleanup to improvements, and other items necessary for the maintenance, servicing; or both of the water quality basin imp rovements within flood control channel improvements; and

(c) public street sweeping, on the segments of the arterials within the boundaries of CFD No. 2022-1; as well as local roads within residential subdivisions located within CFD No. 2022 -1; and any portions adjacent to the properties within CFD No. 2022-1; and

(d) police protection services, including but not limited to criminal justice services, and fire protection and suppression services.

In addition to payment of the cost and expense of the forgoing services, proceeds of the special tax may be expended to pay “Administrative Expenses,” as said term is defined in the Rate and Method of Apportionment.

The above services shall be limited to those provided within the boundaries of CFD No. 2022 -1 or for the benefit of the properties within the boundaries of CFD No. 2022-1, as the boundary is expanded from time to time by anticipated annexations, and said s ervices may be financed by proceeds of the special tax of CFD No. 2022-1 only to the extent that they are in addition to those provided in the territory of CFD No. 2022-1 before CFD No. 2022-1 was created.

493
City of Wildo
mar  17
Community Facilities District No. 2022‐1 (Services)
EXHIBIT D
CITY OF WILDOMAR
COMMUNITY FACILITIES DISTRICT NO. 2022‐1 (SERVICES)
PROPOSED BOUNDARIES
494
BUND
Y CAN
YON RD

ORANGE ST
§¨¦15
366-290-011
COMMUNITY FACILITIES DISTRICT NO. 2022-1
(SERVICES)

OF THE CITY OF WILDOMAR,

COUNTY OF RIVERSIDE, STATE OF CALIFORNIA
SHEET 1 OF 1 SHEET
CFD 2022-1
TAX ZONE 9
^_
§¨¦15

WILDOMAR

THIS BOUNDARY MAP CORRECTLY SHOWS THE BOUNDARIES
OF THE COMMUNITY FACILITIES DISTRICT. FOR DETAILS

CONCERNING THE LINES AND DIMENSIONS OF LOTS OR

PARCEL REFER TO THE COUNTY ASSESSOR'S MAPS FOR
FISCAL YEAR 2023-24.
03 0 0 6 0 0 150 Feet
-
PROPOSED ANNEXATION MAP NO. 9

THIS MAP SHOWS THE BOUNDARIES OF AREAS TO BE ANNEXED
TO COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES)

OF THE CITY OF WILDOMAR, COUNTY OF RIVERSIDE, STATE
OF CALIFORNIA.

THE BOUNDARIES OF WHICH COMMUNITY FACILITIES DISTRICT

ARE SHOWN AND DESCRIBED ON THE MAP THEREOF WHICH
WAS PREVIOUSLY RECORDED ON APRIL 19, 2022, IN BOOK 88

OF MAPS OF ASSESSMENT AND COMMUNITY FACILITY DISTRICTS
AT PAGE 77 AND AS INSTRUMENT NO. 2022-0183915

IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF
RIVERSIDE, ST A TE OF CALIFORNIA.

I HEREBY CERTIFY THAT THE WITHIN MAP OR AREAS TO BE ANNEXED TO COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES)

OF THE CITY OF WILDOMAR, COUNTY OF RIVERSIDE, STATE OF

CALIFORNIA, WAS APPROVED BY THE CITY COUNCIL OF THE

CITY OF WILDOMAR AT A REGULAR MEETING THEREOF,
H E L D O N _ _ _ _ _ _ D A Y O F _ _ _ _ _ _ , 2 0 _ _ _ , B Y R E S O L U T I O N N O . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___________________________________

CITY CLERK

C I T Y O F W I L D O M A R
RECORDED THIS ____ DAY OF _______________, 20____ AT
THE HOUR OF ____ O'CLOCK __M IN BOOK _____
P A G E _ _ _ _ _ O F M A P S O F A S S E S S M E N T A N D C O M M U N I T Y

FACILITIES DISTRICTS IN THE OFFICE OF THE COUNTY

RECORDER, IN THE COUNTY OF RIVERSIDE, STATE OF
C ALIF ORNIA.

FEE: _____________ NO.: ______________________

PETER ALDANA, ASSESSOR, COUNTY CLERK, RECORDER
BY: _______________________________

D E P U T Y

FILED IN THE OFFICE OF THE CITY CLERK, CITY OF WILDOMAR, T H I S _ _ _ _ D A Y O F _ _ _ _ _ _ _ _ , 2 0 _ _ _ _ . ______________________________

C IT Y CLERK

CITY OF WILDOMAR LEGEND

CFD BOUNDARY

PARCEL LINE

CITY BOUNDARY

XXX-XXX-XXX ASSESSOR PARCEL NUMBER
9 TAX ZONE
9 495

EXHIBIT E

WAIVER AND CONSENT RESPECTING CONDUCT OF

MAILED BALLOT, LANDOWNER ELECTION
496
497
498
499
500

EXHIBIT F

NOTICE OF PUBLIC HEARING
501

NOTICE OF PUBLIC HEARING ON RESOLUTION OF INTENTION TO ANNEX

TERRITORY TO AN EXISTING COMMUNITY FACILITIES DISTRICT
(ANNEXATION NO. 9)

NOTICE IS HEREBY GIVEN that the City Council of the City of Wildomar on November 8, 2023 adopted its Resolution No. 2023 -__, in which it declared its intention to annex territory to existing Communi ty Facilities District No. 2022-1 (Services) (the "CFD No. 2022-1"), and to levy a special tax to pay for certain maintenance services, all pursuant to the provisions of the Mello- Roos Community Facilities Act of 1982, Chapter 2.5, Part 1, Division 2, Title 5 of the California Government Code. The resolution describes the territory to be annexed and describes the rate and method of apportionme nt of the proposed special tax.

No change in the tax levied in the existing CFD No. 2022-1 is proposed.

NOTICE IS HEREBY FURTHER GIVEN that the City Council has fixed 6:00 p.m., or as soon thereafter as practicable, Wednesday, December 13, 2023 in the City Council Chambers located at 23873 Clinton Keith Rd., Wildomar, California 92 595, as the time and place when and where the City Council will conduct a public hearing on the establishment of CFD No. 2022-1. At the hearing, the testimony of all interest persons for or against the annexation of the territory or the levying of the special taxes will be heard.

DATED: ____________, 20___ _________________________________________ City Clerk of the City of Wildomar

502

EXHIBIT G

SPECIAL ELECTION BALLOT
503

SPECIAL TAX ELECTION

CITY OF WILDOMAR

ANNEXATION OF TERRITORY TO
COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES)
ANNEXATION NO. 9

(December 13, 2023)

This ballot is for the use of the authorized representative of the following owner of land within Annexation No. 9 of the Community Facilities District No. 2022-1 (Services) (“CFD No. 2022-1”) of the City of Wildomar:

Name of Landowner Number of Acres Owned Total Votes
DMSD Cajun Properties LLC 1.41 2

According to the provisions of the Mello -Roos Community Facilities Act of 1982, and resolutions of the City Council (the “Council”) of the City of Wildomar (the “City”), the above -named landowner is entitled to cast the number of votes shown above under the heading “Total Votes,” representing the total votes for the property owned by said landowner. The City has sent the enclosed ballot to you so that you may vote on whether or not to approve the special tax.

This special tax ballot is for the use of the property owner of the parcels identified below, which parcels are located withi n the territory proposed to be annexed to the CFD No. 20 22-1, City of Wildomar, County of Riverside, State of California.

Please advise the City Clerk, at (951) 677-7751 x 210 if the name set forth below is incorrect or if you are no longer one of the owners of these parcels. This special tax ballot may be used to express either support for or opposition to the proposed special tax. To be counted, this special tax ballot must be signed below by the owner or, if the owner is not an individual, by an authorized representative of the owner. The ballot must then be delivered to the City Clerk, either by mail or in person, as follows:

Mail
Delivery: If by mail, place ballot in the return envelope provided, and mail no later than November 29 , 2023, two calendar weeks prior to the date set for the election. Mailing later than this deadline creates the risk that the special tax ballot may not be received in time to be counted.

Personal
Delivery: If in person, deliver to the City Clerk at any time up to 6 :00 p.m. on December 13, 2023, at the Clerk’s office at 23873 Clinton Keith Road, Suite 201 Wildomar, CA 92595.

However delivered, this ballot must be received by the Clerk prior to the close of the public meeting on December 13, 2023.

Very truly yours,

Janet Morales
City Clerk
City of Wildomar
504
TO CAST THIS BALLOT, PLEASE RETURN THIS ENTIRE PAGE.

OFFICIAL SPECIAL TAX BALLOT

Name & Address of Property Owner: Assessor’s Parcel Number(s):

DMSD Cajun Properties LLC
Attn: Dawood Beshay
41760 Ivy Street #201
Murrieta, CA 92562

366-290-011

ANNEXATION OF TERRITORY TO
COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES)
ANNEXATION NO. 9
MARK AN “X” OR OTHER MARK WILL CAST ALL VOTES ASSIGNED TO THIS BALLOT

SPECIAL TAX BALLOT MEASURE MARK “YES” OR “NO”
WITH AN “X”:

Shall the City Council of the City of Wildomar be authorized to levy a special tax on an annual basis at the rates and apportioned as described in Exhibit C to the Resolution Declaring its Intention to Annex Territory to Community Facilities District No. 2022-1 (Services) adopted by the City Council on November 8, 2023 (the “Resolution”), which is incorporated herein by this reference, within the territory identified on the map entitled “Annexation Map No. 9 of Community Facilities District No. 20 22-1 (Services) City of W ildomar” to finance certain services as set forth in Section 4 to the Resolution (including incidental expenses) and shall an appropriation limit be established for Community Facilities District No. 2022-1 (Services) in the amount of special taxes collected?

YES

NO

Certification for Special Election Ballot
The undersigned is an authorized representative of the above -named landowner and is the person legally authorized and entitled to cast this ballot on behalf of the above-named landowner.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on _________________________________, 20___________.

DMSD Cajun Properties LLC
Dawood Beshay
Managing Partner

Signature
Print Name
Title

505
ORANGE
ST

BUNDY CANYON RD

GLASGOW LN

MELVILLE
LN
§¨¦15
^_
GRAPE

STLEMON S T

BUNDY CANYON RD

PALOMAR
ST

CORYDON ST

ORANGE ST

MISSION
TRL

WILDOMAR TRL
§¨¦15
CFD NO. 2022-1 (SERVICES)
ANNEXATION NO. 9

PROJECT MAP
506
N23°32'44"W 371.26'
N01°13'24"E 494.14'
N88°53'53"W 233.38'
19'
20'39'
56'28'
20'
Δ=03°20'22" R=3000.00' L=174.85'
LOT 29SEDCO TRACT NO. 1BK 10/PG 58-76A.P.N. 366-290-010NAZM 13 10
10 1140'20'20'
50'17

NOPARKINGNOPARKINGLOADINGZONE

19.00'EX EASMENT
APN:366-290-011NOTE: ALL IMPROVEMENTS ON PRIVATE PROPERTY WILL BE MAINTAINEDBY PROPERTY OWNER. AN HOA OR POA WILL NOT BE FORMED.

ORANGE STREET
TEMECULA VALLEY FREEWAYINTERSTATE 15
PAVEMENT MANAGEMENT12,808SFSIDEWALK 2,978SFLED STREETLIGHT3EASTREET SWEEPING - PERIMETER495LF CFD MAINTENANCE AREA: QUANTITY:

POPEYES RESTAURANTORANGE ST & BUNDY CANYON RDWILDOMAR, CA 92595APN: 366-290-011CFD MAINTENANCE EXHIBIT695 TOWN CENTER DRIVE #110COSTA MESA, CA 92626CONTACT: AARON ALBERTSON, PETEL:(949) 610-8997 PREPARED BY:DMSD CAJUN PROPERTIES, LLC41760 IVY STREET, SUITE 201MURRIETA, CA 92562CONTACT: DAVID BESHAYTEL: 951-816-0189 PREPARED FOR:

N.T.S.VICINITY MAP

BUNDY CANYON DRIVE

WAITE STREETALMOND STREET

ORANGE STREET

CHERRY STREETSELLERS STREET

ORANGE STREETWAITE STREETVIEW CREST DRIVE

ALMOND STREETBUNDY CANYON DRIVE

TEMECULA VALLEY FREEWAY
TOWNSHIP 6 SOUTH, RANGE 4 WEST, SECTION 23
PARKWAY LANDSCAPING2,013SFPROPERTY OWNER MAINTENANED AREA: QUANTITY:
507

CITY OF WILDOMAR

CC - REGULAR MEETING

CONSENT CALENDAR
Agenda Staff Report # 1.16
Meeting Date: November
8, 2023
SUBJECT:

Second Amendment to the Professional Services Agreement with Placeworks, Inc., and approval of a task order to provide Environmental and Regulatory Permit Processing Services for the Clinton Keith Road Widening Project (CIP 025-1)
SUBMITTED BY:

Jason Farag
PREPARED BY:

Jason Farag

ACTION:

1. Approve and authorize the City Manager to execute the Second Amendment to the Professional Services Agreement with Placeworks, Inc.; and

2. Approve and authorize the City Manager to execute a task order agreement in the amount of $226,164 for required Environmental and Regulatory Permitting Services for the Clinton Keith Road Widening Project (CIP 025-1)
SUMMARY:

The City is pursuing the improvement of Clinton Keith Road from the I-15 Freeway to the eastern City limits. The proposed improvements require the environmental compliance including the preparation of and processing of regulatory permits from resource agencies as required by the Mitigated Negative Declaration (MND) previously approved by the City Council. The proposed actions will authorize Placeworks, Inc., to provide the required services to the City.

BACKGROUND:

Included in the 5-Year Capital Improvement Program (CIP) is the widening and improvement of Clinton Keith Road from the I-15 to the east City limits (Project). Construction plans were previously prepared in 2015 for the ultimate widening of the roadway but due to funding constraints, the City had been unable to proceed with the construction of the ultimate improvements. This year the City applied for and was awarded construction funds from the Riverside County Transportation Commission (RCTC) for the ultimate widening of the Project and the City is now proceeding with the updating of the project plans, right of way acquisition, 508
and environmental requirements for the Project.

DISCUSSION:

The City has an existing on-call Planning/CEQA consultant, Placeworks, Inc., who provides various professional environmental services to the City.

To more clearly identify the various
types of environmental and CEQA-related services that can be provided under the existing on- call agreement, a Second Amendment to the existing on-call agreement with Placeworks has been prepared and is included in Attachment A.

Staff has also requested a proposal from Placeworks for the required environmental and regulatory agency permit processing services for the Clinton Keith Rd. Widening Project.

Placeworks has recently provided similar services for the City on the Palomar Street Widening, Phase 1, Project. The Placeworks project team is familiar with City procedures and processes and they are familiar with the Project area.

Placeworks submitted a proposal in the
amount of $226,164, which includes several optional services that may be required.

Staff recommends that the City Council approve and authorize the City Manager to execute the Second Amendment with Placeworks and to approve and authorize the City Manager to execute a task order agreement in the amount of $226,164, to provide the required services for the Clinton Keith Rd. Widening Project. A copy of the task order agreement, with the proposal from Placeworks, is included in Attachment B.

FISCAL IMPACT:

Funding for the Clinton Keith Rd. Widening Project is included in the approved CIP budget for FY 23-24. Expenditures related to the requested services are eligible for reimbursement from the Western Riverside Council of Governments (WRCOG) Transportation Uniform Mitigation Fee (TUMF). No additional funds are needed at this time.

There is no impact to the General Fund.

ACCOUNT CODE:

Project: CIP 025-1
Fund No. 503-913-0001-52115 (Design/PS&E)

ATTACHMENTS:

A - Second Amendment
B - Task Order Agreement for CIP 025-1
509

4861-8013-6077 v1
Second Amendment to Professional Services Agreement for Planning/CEQA Services

This Second Amendment to Professional Services Agreement for Planning/CEQA Services (“Second Amendment”), which is dated as of November ___, 2023, is hereby entered into by and between the CITY OF WILDOMAR, a California general law city (“City”), and PLACEWORKS, INC., a California corporation (“Service Provider”), as follows:

RECITALS

A. City and Service Provider entered into an agreement for on-call planning and CEQA services on June 15, 2017 (“Agreement”).

B. The Parties entered into a First Amendment to the Agreement on or about June 8, 2022, which amended the scope of work and compensation to be paid under the Agreement.

C. This Second Amendment further modifies the scope of services to be provided under the Agreement.

OPERATIVE PROVSIONS

Now, therefore, in consideration of the promises made and recited herein, the parties do hereby enter into this Second Amendment which modifies and amends the Agreement as follows:

1. Section II of Exhibit A of the Agreement, as modified by the First Amendment, shall be amended to add the following as subpart (B): “B. As part of the Planning Department functions, the Service Provider shall also provide the necessary staff or subconsultants to provide CEQA services, regulatory permitting services, and other project-related environmental compliance services for any City initiated projects (regardless of City department), as requested by the City. This may include, but is not limited to, items such as preparation of CEQA documents, preparation of regulatory permits (e.g., 401, 404, 1602), services to assist with CEQA mitigation measure compliance, construction support services, and other environmental support services necessary for the development and construction of City projects. For these City projects, the City may issue a task order form under this on-call agreement to authorize the specific scope of work and total compensation.”

GENERAL PROVISIONS

2. Remainder Unchanged. Except as specifically modified and amended in this Second Amendment, the Agreement as amended by the First Amendment remains in full force and effect and binding upon the parties.
510

4861-8013-6077 v1

3. Integration. This Second Amendment consists of two pages and constitutes the entire understanding of the parties regarding the matters discussed herein.

4. References. All reference to the Agreement as amended by the First Amendment includes all its respective terms and provisions. All defined terms utilized in this Second Amendment have the same meaning as assigned to such terms in the Agreement as amended by the First Amendment.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year Second above written.

CITY OF WILDOMAR PLACEWORKS, INC.

__________________________ _______________________ Daniel A York
City Manager

ATTEST:

______________________
Janet Morales, CMC, City Clerk

APPROVED AS TO FORM:

_______________________
Thomas D. Jex, City Attorney
511
TASK ORDER AGREEMENT #CIP 025-1
Placeworks, Inc.

PROFESSIONAL ON-CALL

PLANNING/CEQA CONSULTANT SERVICES
CLINTON KEITH ROAD WIDENING PROJECT, CIP 025-1
This TASK ORDER AGREEMENT (“TASK ORDER”) is made this 8th day of November, 2023, by and between the City of Wildomar, a municipal corporation, hereinafter called “CITY” and Placeworks, Inc., hereinafter called “CONSULTANT”.

1. This TASK ORDER includes all of the terms and conditions contained in that certain Professional Services Agreement for On-Call Planning/CEQA Services (ON-CALL AGREEMENT), executed by the parties and approved by the Wildomar City Council on June 15, 2017, including subsequent amendments approved on June 8, 2022, and November 8, 2022.

2. SCOPE OF SERVICES. CONSULTANT shall provide professional services as directed by the City Project Manager as required for CIP 025-1 (CLINTON KEITH ROAD WIDENING PROJECT). These services shall include the scope of work outlined in the CONSULTANT’s proposal shown in Exhibit “A,” attached hereto and incorporated herein.

3. PRICE. The services shall be provided on a time and materials basis, based on Exhibit “B, ” Compensation, of the ON-CALL AGREEMENT, as amended, for a not to exceed price of $226,164.

4. SCHEDULE. The services shall be provided on a schedule as included in the SCOPE OF SERVICES, or as otherwise requested by the City Project Manager and agreed to by CONSULTANT.
512
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated below.

Dated: , 2023 Dated: , 2023

CITY OF WILDOMAR, a municipal
corporation

By
Signature

Daniel A. York, City Manager

CONSULTANT

By
Signature

Name and Title

513
EXHIBIT “A”

514

November 2, 2023

Warren Repke, PE
Senior Project Manager

CITY OF WILDOMAR
Public Works Department
23873 Clinton Keith Road, Suite 110
Wildomar, CA 92595
Subject: CIP 025-1 Clinton Keith Widening Project Biological Permitting Services Dear Mr. Repke:

PlaceWorks is submitting this letter proposal that includes the tasks to be performed by our biological subconsultant, ECORP Consulting, Inc., during construction of the Clinton Keith Widening Project (project) in the City of Wildomar, Riverside County, California.

Understanding of the Project
It is PlaceWorks’ understanding that the City is proceeding with Phase 1 of the project, and improvements are expected to include roadway excavation (cut and fill slopes), road base, AC paving, traffic signal relocations and modifications, signing and striping, minor drainage improvements, and water quality improvements. ECORP did a revalidation/supplemental update to the JD Report in 2021. Since both the delineation and biological surveys are over two years old, ECORP will conduct updated biological surveys to verify and revise if conditions have changed.

Scope of Work
TASK 1. BIOLOGICAL RESOURCES ASSESSMENT, BURROWING OWL HABITAT ASSESSMENT,

MSHCP CONSISTENCY ANALYSIS, AND BIOLOGICAL TECHNICAL REPORT The Project site is in the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP), Elsinore Area Plan, and is adjacent to (but not within) Criteria Cells 5558 and 5559. In 2020, Western Riverside Conservation Authority identified that additional documentation for the Project would be required to satisfy the requirements of the MSHCP. Based on a brief review of the Western Riverside County Regional Conservation Authority (RCA) MSHCP Information Map, it appears that the Project site is in MSHCP-designated survey area for burrowing owls. To determine whether sensitive biological resources are on the Project site, a reconnaissance-level survey will be performed.

Prior to conducting the survey, an updated literature search will be conducted using public databases, including California Department of Fish and Game’s (CDFW) California Natural Diversity Data Base, California Native Plant Society’s Electronic Rare Plant Inventory, range maps for special-status species, and other documentation pertinent to the region. The search will identify the approximate locations of known or expected sensitive biological resources and habitats within or near the Project site.

Once the literature search and analysis have been completed, ECORP will perform a field survey of the Project site.

Biological resources that are known to or could potentially occur on the Project site will be searched for during the survey. The vegetation communities that were previously mapped by URS/ECORP will be verified and corrected if changes have occurred since the previous vegetation mapping. Representative photographs will be taken to document the site conditions at the time of the survey. A full list of plant and wildlife species will be recorded during the survey. If any sensitive biological resource is found within the Project site, its location will be recorded, and the resource will be discussed in the Biological Technical Report. 515

November 2, 2023 | Page 2
The Project site is subject to the requirements of the MSHCP; therefore, at a minimum, habitat assessments for riparian/riverine, vernal pool, and fairy shrimp (MSHCP Section 6.1.2); narrow endemic plant species (MSHCP Section 6.1.3); burrowing owl (MSHCP Section 6.3.2); and the urban/wildlands interface (MSHCP Section 6.1.4) would be required for compliance under the MSHCP. As a cost-saving measure, the biological reconnaissance survey and habitat assessments for the MSHCP resources, including burrowing owl, will be conducted concurrently. The burrowing owl habitat assessment will include a focused burrow survey, which is considered Part A of the MSHCP focused protocol burrowing owl survey requirement. The survey will consist of walking the entire site in order to identify suitable burrowing owl habitat and any suitable burrows. If burrowing owl habitat is present, an additional 500-foot buffer around the Project site will also be walked, if permissible. Where access is not permissible, the area will be visually inspected using binoculars and/or spotting scopes. The biological reconnaissance survey and burrowing owl habitat assessment will be conducted according to the protocols required by the MSHCP.

A Biological Technical Report will be prepared to document the methods and results of the literature search and biological reconnaissance survey. The report will include a summary of the biological setting of the Project site, a Project description, discussion of survey methods and results, a description of sensitive species potentially on the Project site, a brief discussion of the regulatory setting, and potential biological constraints to the proposed development. Lists of wildlife and plant species observed during the surveys will be included as an appendix. The report will conform to the information needs under the California Environmental Quality Act (CEQA). If necessary, recommendations for further work, including focused surveys for sensitive species or aquatic resources delineation, will be discussed in the report. This scope of work does not include costs for focused (protocol-level) surveys or coordination with the regulatory agencies. If those services are determined to be necessary, the cost estimate for those services will be submitted under a separate cover. ECORP will submit one electronic copy of the draft Biological Technical Report. After receiving one round of compiled comments, a final version of the Biological Technical Report will be submitted electronically.

As a part of the report, ECORP will prepare an updated MSHCP Consistency Analysis. This section will provide an analysis of the Project within the context of the MSHCP and pursuant to the specific criteria identified in the MSHCP.

Results of the burrowing owl habitat assessment will be incorporated into the MSHCP consistency analysis and will include location of all potential burrowing owl habitat in the Project site and (if applicable) within the 500-foot buffer, including burrowing owl observation(s) and burrow locations. The report will include a description of suitable habitat surveyed for these resources, description of habitat features, and survey methods. Recommendations on future survey needs, including survey timing and protocol, will be included in the report. The report will also describe any corridors or linkages proposed for the Project site under the MSHCP and any areas on-site that trigger the implementation of the protection of species associated with riparian/riverine areas or vernal pool habitats, as described in Section 6 of the MSHCP.

If burrowing owls, potential burrows, or habitat are not identified on the Project site, additional focused surveys for these resources will not be necessary. If habitat for these resources is found on-site, focused surveys would need to be conducted according to the protocols and guidance provided by the MSHCP (see optional Task 6).

Deliverables:
 Draft and Final Biological Technical Report
TASK 2. AQUATIC RESOURCES DELINEATION
Task 2A. Aquatic Resources Delineation Update and Field Verification Previously, an aquatic resources delineation was conducted for the Project. Because that delineation is several years old and because the Project limits have been modified slightly, this scope and cost is being provided to update the existing aquatic resources delineation. In addition to checking the existing delineation, the updated delineation will also consider any regulatory changes in the intervening time. 516

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ECORP will conduct a literature review and field delineation consistent with the methods detailed in the US Army Corps of Engineers’ (USACE) Wetlands Delineation Manual (Environmental Laboratory 1987); Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Region (USACE 2008); State Wetlands Definitions and Procedures for Discharges of Dredged and Fill Material to Waters of the State (SWRCB 2019); and local policies by the CDFW regarding their jurisdiction and following the definitions in the California Fish and Game Code pertaining to regulated resources (lakes, streams, and associated hydrophytic vegetation). The field methods mentioned above are sufficient for identification of impacts and potential mitigation associated with the permanent and temporary impacts of the proposed Project on aquatic resources.

Prior to conducting a field delineation, an ECORP delineation specialist will conduct a review of public information pertaining to the discovery of jurisdictional resources. Examples of public information include USGS topographic mapping, National Wetlands Inventory mapping, soil surveys of the area, precipitation data for the area (if available) and remote sensing data such as aerial photography. These data provide an understanding of the potential aquatic resources within the area.

After the public information review is completed, an ECORP delineation specialist will visit the property and conduct investigations of the vegetation, soils, and hydrology. The entire Project area will be surveyed, and accessible areas will be walked to determine the location and extent of potential waters of the U.S. (including wetlands), waters of the State, and CDFW jurisdiction that are potentially present. Where potential wetlands occur, sample point locations will be analyzed to evaluate whether or not the location supports wetland vegetation, soils, or hydrology.

The total area of jurisdictional resources within the site will be recorded in the field using a post-processing-capable global positioning system (GPS) unit or the equivalent.

Task 2B. Aquatic Resources Delineation Update Report
Following the survey, a report will be prepared for each parcel that will comply with the USACE’s “Minimum Standards for Acceptance of Aquatic Resources Delineation Reports” (March 2017). The report will also comply with standards acceptable for project review under the MSHCP. Within the report, ECORP will provide locational information of the Project, methods of the delineation, a summary of the existing biological conditions, and the results of the public information review. The results section will include a description of each of the aquatic resources identified on the Project site along with a summary of the acreages in the Delineation Area. The report will also provide a discussion of expected permanent and temporary impacts to aquatic resources, in terms of acreages, and provide a discussion of potential mitigation measures for those resources.

A draft report will be prepared and submitted for comment. One round of consolidated comments will be addressed, and the report will then be finalized. The methods used to conduct the delineation and the results will be summarized in the biological technical report, and the updated aquatic resources delineation letter report will be included as an appendix to the biological technical report. The final report will be made available if necessary to the regulatory agencies (USACE, CDFW, United States Fish and Wildlife Service [USFWS], and RWQCB) for renewal of the permitting process with these agencies, described below. Completion of permit applications or coordination with the agencies is described below.

Deliverables:
 One draft updated aquatic resources delineation report submitted electronically.  One final updated aquatic resources delineation report submitted electronically.

TASK 3. REGULATORY PERMITTING
Prior to submitting the permit applications, pre-coordination meetings will be required with the RCA and with the respective agencies, especially the RWQCB. ECORP will respond to and participate in these meetings via phone calls, 517

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consultation, and meetings with the agencies to help in that process. We assume at least one face-to-face meeting may be needed with one of the agencies or the RCA, but more meetings may occur over phone conferences.

After ECORP has prepared and submitted permit applications for the project with the respective regulatory agencies—USACE, CDFW, USFWS, and RWQCB—the agencies will review them for completion. Any additional information needs the agencies may have during the permit process will be identified, and ECORP will consult with the City and PlaceWorks, if needed, to provide the additional information. If additional studies or preparation of mitigation plans etc. are needed for agency review of the permits and project, these are not included in this scope.

Once permits are issued, ECORP will assist the City by reviewing the permits and providing comments on their conditions or other aspects for agency consideration. A compiled list of ECORP and City comments on the permits will be provided to each agency, as applicable. Final permits are anticipated to be issued within six months of application submittal, but this schedule is dependent on agency priorities and workload.

Task 3A. USACE Nationwide Permit
Based on potential impacts to jurisdictional resources due to the Project, ECORP will prepare a Pre-construction Notification to the USACE if it is determined that USACE jurisdiction exists on the Project site. ECORP will prepare the notification materials, which will include (but are not limited to) detailed information about the Project activity, its purpose, its direct and indirect impacts, and full description of any proposed mitigation measures for impacts to water bodies in the Project area. The notification will describe compensatory mitigation, Endangered Species Act compliance for the Project, and any Historical Properties that may be affected.

Other information to be provided will include showing compliance with Nationwide Permit General and Regional Conditions, and an analysis of the impacts on associated water bodies. We assume that any mitigation plan for the Project will be covered to USACE’s satisfaction by the DBESP.

The draft pre-construction notification will be submitted in electronic format for review and comment. ECORP will incorporate one round of comments into the document, then the final notification will be submitted to the City with supporting documents. ECORP will respond and address comments from the USACE on the pre-construction notification prepared for the Project. ECORP will also review and comment on the conditions in the permit and will assist the City with negotiating the conditions, if applicable. If additional studies are requested by the USACE, or if the USACE decides an Individual 404 Permit is necessary and the City agrees, then these will be addressed in a separate scope.

Task 3B. Lake or Streambed Alteration Agreement
ECORP will prepare a Notification of Lake or Streambed Alteration (DFW2023) as a draft for the proposed Project to authorize these impacts with the CDFW. ECORP will prepare the notification materials, which will include (but are not limited to) the Project description, summary of impacts and proposed mitigation, anticipated dates of work to be conducted, amount of riparian vegetation and/or trees to be affected, avoidance and minimization measures, and documentation of CEQA compliance. It is assumed that the City will provide Project-related information such as plans, construction information, list of equipment, construction dates, and so on to satisfy the notification requirements, along with the fee for notification processing. In support of the notification preparation, ECORP will participate in meetings/conference calls to discuss mitigation for the Project to be included within the notification.

The draft notification will be submitted in electronic format to the City for review and comment. ECORP will incorporate one round of compiled comments into the document, then the draft will be submitted back to the City so it can be input into the CDFW Environmental Permit Information Management System (EPIMS) website along with supporting documents and the notification fee. Note that an account for EPIMS will need to exist in the City’s name for this submittal and that the fee amount is not included in the scope and cost, as it is unknown at this time. 518

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ECORP will respond to and address comments from the CDFW on the notification and supplemental information or the environmental and biological documents prepared for the Project. ECORP will also review the draft LSAA issued by the CDFW, will provide comments on the conditions in the permit, and will assist the City with negotiating the conditions, if applicable.

We assume that any mitigation plan for the Project will be covered to CDFW's satisfaction by the DBESP. If additional studies are requested by CDFW and agreed to by the City, these will be addressed in a separate scope.

Task 3C. Section 401 Water Quality Certification/Waste Discharge Requirements On April 2, 2019, the State Water Board adopted the State Wetland Definition and Procedures for the Discharge of Dredged or Fill Material to Waters of the State (Procedures). The Procedures became effective May 28, 2020.

Applicants proposing to discharge dredged or fill material are required to comply with the Procedures unless an exclusion applies or the discharge qualifies for coverage under a General Order.

ECORP will prepare an Application of Water Quality Certification and Waste Discharge Requirements as a draft for the proposed Project to authorize these impacts with the San Diego RWQCB. ECORP will prepare the application materials, which will include (but are not limited to) the Project description, summary of impacts and proposed mitigation, anticipated dates of work to be conducted, cubic feet of material to be affected, avoidance and minimization measures, and documentation of CEQA compliance. It is assumed that the City will provide Project- related information such as plans, construction information, list of equipment, construction dates, and so on to satisfy the application requirements along with the fee that must be supplied for processing. In support of the application preparation, ECORP will participate in meetings/conference calls to discuss mitigation for the Project to be included within the notification.

Task 3D. Agency Meetings, Communications, and Negotiations ECORP will participate in meetings, communications, and negotiations with the City and the resources agencies (RWQCB, USACE, USFWS, and CDFW) for the purposes of supporting the regulatory permitting efforts for the Project. This will include a 30-day, required pre-application meeting with the Regional Board.

ECORP assumes most of the meetings will be online but there may be a need to conduct field meetings to help the resources agency personnel to understand the scope of the Project. We assume ECORP’s Project Manager and one specialist (regulatory or restoration specialist) will participate in each meeting. ECORP also assumes that 12 online meetings and 4 on-site meetings could potentially be required during the course of the permitting for the Project.

ECORP will participate with the City in meetings with the agencies and will record meeting minutes and action items at each meeting. The meeting minutes will be prepared in draft form and will be submitted to the City within one week of completing each meeting. ECORP will incorporate one round of County comments into a final version of each of the meeting minutes and then distribute them to the meeting participants.

ECORP will also engage in communications with the agencies at the City’s request. Communications may include phone calls and emails related to the permitting and may also include providing input to the agencies while they are preparing permit language. ECORP will request approval from the City prior to providing assistance, graphics, verbiage, or acreages to the agencies. ECORP will summarize agency communications in emails to the City’s Project team or through phone communication and also assist the City with the negotiations related to permit conditions, mitigation requirements, or requests from the agencies in relation to permits or other Project components, including the Project design.

Deliverables:
 Draft and final pre-construction notification (if needed)  Draft and final notification of Lake or Streambed Alteration 519

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 Draft and final application for Water Quality Certification/Waste Discharge Requirements TASK 4. ECORP PROJECT MANAGEMENT, COORDINATION, AND CLIENT REQUESTS Upon receipt of the Notice to Proceed, ECORP’s Project Manager will coordinate with the City to discuss contract responsibilities, site access, field restrictions, scheduled deliverables, and other Project-related issues. Coordination will be conducted via phone or other convenient method, as mutually agreed upon by the participants. During the course of the Project, as needed, ECORP will attend Project meetings or conference calls with the City, provide general technical support, prepare Project status reports and updated schedules, and maintain appropriate communication with the City. This is an as-needed task, billed as time and materials. If the number or type of requests for out-of-scope assistance exceeds what can be accommodated by this budget on a best-efforts basis, a contract amendment would be needed in order to respond. ECORP assumes 30 hours will be required to fulfill this task.

TASK 5. PLACEWORKS PROJECT MANAGEMENT
This task includes hours for PlaceWorks to communicate with the City and ECORP and to ensure the Project progresses according to schedule and that both the City and ECORP are up to date on the status of the Project.

Optional Tasks
TASK 6. FOCUSED BURROWING OWL SURVEYS (OPTIONAL)
The Project site is in a burrowing owl survey area for the MSHCP, and if suitable burrowing owl habitat is found during the field survey described in the biological resources assessment task (Task 1), then focused burrowing owl surveys will need to be conducted in suitable habitat on the Project site, in accordance with Section 6.3.2 of the MSHCP. The cost for this optional task is an estimate because it is unknown whether these surveys will be necessary.

The amount of habitat that is present on the Project site is also unknown until the field survey is conducted; however, the scope for focused burrowing owl surveys is described below to aid in Project planning should these surveys be necessary.

The focused surveys will be conducted according to the Burrowing Owl Survey Instructions for the MSHCP (County of Riverside 2006). The protocol requires that four focused burrowing owl surveys be conducted between March 1 and August 31: one focused burrow survey (Survey Part 2A) and three focused burrowing owl surveys (Survey Part 2B). During the surveys, the biologist will record all burrowing owl observations, occupied burrows, and burrows with owl sign (whitewash, pellets, feathers, and bones of prey items) that were not previously identified during the field survey described in Task 1. The biologist will also note the number of individual owls, owl pairs, and juveniles as well as any behavior, such as courtship and mating. All location data will be described on field data sheets and recorded using GPS.

Following the surveys, a report will be prepared that will describe the survey methodology, site conditions, and results, including the locations of any burrowing owl observations, occupied owl burrows, and potential burrows.

The report will also include maps depicting the Project site, suitable burrowing owl habitat, and the locations of any burrowing owl observations or burrows. Discussion of the survey results in the report will be in accordance with the MSHCP requirements for burrowing owl surveys. ECORP will submit one electronic copy of the draft burrowing owl survey results report. After receiving one round of compiled comments, a final version of the burrowing owl survey results report will be submitted.

Deliverables:
 Draft and Final Burrowing Owl Survey Results Report
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TASK 7. FOCUSED LEAST BELL’S VIREO SURVEY (OPTIONAL)
Riparian habitat that could support least Bell’s vireo was identified by the Final IS/MND, but focused surveys conducted in 2007 did not detect this species. Because focused survey results are only valid for one to two years, if suitable riparian habitat is found on site during the field survey described in the biological resources assessment task (Task 1), then focused least Bell’s vireo surveys will need to be conducted in suitable habitat on the Project site in accordance with Section 6.3.2 of the MSHCP. Costs for this task is optional and is an estimate because the amount of habitat that is present on the Project site and within the expansion area is unknown until the field survey is conducted; however, the scope for focused least Bell’s vireo surveys is described below to aid in Project planning should these surveys be necessary.

Focused least Bell’s vireo surveys will be conducted by a qualified biologist familiar with the identification, vocalizations, and behaviors of the species to determine the presence/absence of the species. Surveys will be conducted in accordance with the USFWS 2001 protocol guidelines which requires eight surveys be conducted at least ten days apart during the period between April 10 and July 31. The surveys will be conducted between dawn and 11 a.m. when weather conditions are favorable. No more than 50 hectares or 3 linear kilometers will be surveyed per biologist per day. The biologist will also note the number of individuals, pairs, juveniles, and any behavior, such as courtship, nest building, and mating. All location data will be described on field data sheets and recorded using a GPS.

Following the surveys, a report will be prepared that will describe the survey methodology, site conditions, and results, including the locations of any least Bell’s vireo observations, extent of territories, and nests (if detected).

The report will also include maps depicting the Project site, suitable riparian habitat included in the survey area, and the locations of any least Bell’s vireo observations. Discussion of the survey results in the report will be in accordance with the MSHCP requirements for least Bell’s vireo.

Deliverables:
 Draft and Final Least Bell’s Vireo Survey Results Report submitted electronically TASK 8. PROTOCOL FAIRY SHRIMP SURVEYS (OPTIONAL)
Per the Final IS/MND, “Vernal pools, vernal swales, alkali scalds or flats, or other seasonal wet habitats not associated with stream channels were not identified within the Biological Study Area during field surveys conducted in the winter and spring of 2007”. However, because fairy shrimp habitat may include man-altered habitat that results in inundation long enough for listed fairy shrimp species to complete a life-cycle, potential fairy shrimp for listed species could be identified during the biological resources assessment task (Task 1) and would require focused surveys in accordance with Section 6.3.2 of the MSHCP. Artificially created (concrete swales, detention basins) or heavily modified features (gravel infill areas, artificially irrigated and/or landscaped areas) may be deemed unsuitable for listed species and excluded from surveys at the discretion of the permitted fairy shrimp specialist. A full protocol fairy shrimp survey consisting of one wet season and one dry season survey conducted within a 3-year period is required to determine presence/absence of listed fairy shrimp species. Ponded areas adjacent to and fed by the proposed Project parcel would need to be included in the study area.

Task 8A – Wet Season Fairy Shrimp Surveys
A pre-survey notification request will be sent to U.S. Fish and Wildlife Service (USFWS) at least 15 days prior to start of wet season protocol surveys per individual permit notification requirements. Wet season surveys will be conducted by an ECORP biologist who holds a valid 10(a)1(A) recovery permit for listed large branchiopods and in accordance with Survey Guidelines for Listed Large Branchiopods. Wet season surveys shall begin within 7 days of initial inundation and continue weekly for a minimum of 120 consecutive days or until a ponding feature no longer holds water. During each visit, representative portions of the bottom, edges, and vertical water column of each feature shall be adequately sampled using a seine, dip net, or aquarium net appropriate for the size of the feature. 521

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Data will be recorded on the wet season vernal pool data sheet. Weekly sampling will be re-initiated at features that experience a dry down and each subsequent inundation event that occurs during the same wet season. If a listed species is identified within a feature, USFWS will be notified within 10 days and further sampling at that feature will be suspended. A Draft letter report describing the results of the wet season fairy shrimp survey will be prepared and submitted to the Client. One round of comments will be incorporated prior to submittal of the final wet season report to USFWS within 90 calendar days of completion of wet season surveys in accordance with protocol and permitting requirements.

Task 8B – Dry Season Fairy Shrimp Survey
A 15-day pre-survey notification will be submitted to USFWS prior to dry season fairy shrimp soil (substrate) collection and processing. Soil/substrate will be collected by an ECORP biologist who holds a valid 10(a)1(A) recovery permit for listed large branchiopods and in accordance with Survey Guidelines for Listed Large Branchiopods.

Soil/substrate samples will be collected at each feature when soils are bone dry to avoid damaging or destroying listed large branchiopod cysts. The number of soil/substrate samples and the amount of soil/substrate collected per feature will be proportional to the size of the feature, typically 10 to 100 samples/feature. An ECORP biologist who holds a valid 10(a)1(A) recovery permit for the listed large branchiopods with additional terms and conditions included in their permit specifically for conducting processing, isolating, and identifying listed large branchiopod cysts, will process the soils samples collected from each feature in the laboratory. If cysts are found, hatching and rearing techniques will be employed to identify the species. A Draft letter report describing the results of the dry season fairy shrimp survey will be prepared and submitted to the Client. One round of comments will be incorporated prior to submittal of the final dry season report to USFWS within 90 calendar days of completion of the soil/substrate and cyst analysis in accordance with protocol and permitting requirements.

Deliverables:
 Draft and Final wet season fairy shrimp Survey Results Report submitted electronically  Draft and Final dry season fairy shrimp Survey Results Report submitted electronically TASK 9. FOCUSED CROTCH BUMBLE BEE SURVEYS (OPTIONAL)
The Crotch bumble bee was petitioned for listing under the California Endangered Species Act in October 2018; advanced to candidacy in June 2019; challenged in courts and the candidacy was temporarily stayed beginning in February 2021; and candidacy was recently reinstated in September 2022. Because it is currently a state candidate species and offered the same protections as a listed species (and not addressed by the Western Riverside MSHCP or previous IS/MND), focused surveys would be recommended in order to support the Lake or Streambed Alteration Agreement process if suitable habitat is determined to occur on site during the biological resources assessment task (Task 1). Costs for this task is optional and is an estimate because it is unknown whether these surveys will be necessary and it is unknown the amount of habitat that is present on the Project site until the field survey is conducted; however, the scope for focused Crotch bumble bee surveys is described below to aid in Project planning should these surveys be necessary.

The focused surveys will be conducted according CDFW’s Survey Considerations for CESA Candidate Bumble Bee Species. Four Crotch bumble bee surveys shall be conducted during the colony active period (April through August) when Crotch bumble bees are most likely to be detected. Non-lethal, non-capture photo voucher surveys shall be completed by a team of CDFW approved biologists experienced in identifying native bumble bee species. The surveyors shall walk through all areas of suitable habitat focusing on areas with floral resources. Surveys shall be completed at a minimum of one person-hour of searching per three acres of suitable habitat during suitable weather conditions (sustained winds less than 8 mph, mostly sunny to full sun, temperatures between 65 and 90 degrees Fahrenheit) at an appropriate time of day for detection (at least an hour after sunrise and at least two hours before sunset, though ideally between 9am-1pm). If the species is detected, the Client will be notified via phone or email within 48 hours and the remainder of focused surveys (if any) will focus on nest detection. The biologists will 522

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note the number of individuals, species, sex and lifeform (if determined), and any behavior, such as foraging, flying through, territorial, or entering potential nest burrow. All location data will be described on field data sheets and recorded using a GPS.

Following the surveys, a report will be prepared that will describe the survey methodology, site conditions, and results, including the locations of any Crotch bumble bee observations, extent of territories, and nests (if detected).

The report will also include maps depicting the Project site, potential foraging, nesting, and overwintering habitat identified, and the locations of any Crotch bumble bee observations.

Deliverables:
 Draft and Final Crotch Bumble Bee Survey Results Report submitted electronically.

TASK 10. DETERMINATION OF BIOLOGICALLY EQUIVALENT OR SUPERIOR PRESERVATION

REPORT (OPTIONAL)
Proposed discretionary projects that are subject to the Joint Project Review (JPR) process and have impacts to MSHCP resources require a Determination of Biologically Equivalent or Superior Preservation (DBESP) Report.

ECORP will prepare a DBESP for the proposed Project site following the MSHCP template if impacts to resources are identified.

Under this task, an ECORP biologist and/or regulatory specialist will draft a DBESP report based on the information provided in the jurisdictional delineation report, CEQA documents, and existing biological technical reports. The proposed compensation measures in the DBESP report will be based on measures discussed with and agreed upon by the City. No more than 2 one-hour meetings conducted via conference call with the ECORP Project Manager and/or biologist/regulatory specialist are included as part of this task to finalize the agreed-upon mitigation requirements addressed in the DBESP. The scope under this task includes the preparation and submittal of a draft DBESP report to the City and PlaceWorks, one draft revision, and the submittal of a final version to the City and PlaceWorks, all in electronic format.

The MSHCP-required process by which the City will need to demonstrate adequate replacement of biological functions and values begins with the submission of DBESP report. To ensure compliance with the MSHCP in relation to Section 6.1.2 (Riparian/Riverine, Vernal Pool and Fairy Shrimp), ECORP will assist the City in preparing the DBESP documentation. The DBESP will describe avoidance, minimization, and mitigation efforts of the Project in the context of Section 6.1.2 of the MSHCP. Impacts that cannot be feasibly avoided must be mitigated such that lost functions and values that relate to MSHCP-identified species and sensitive habitats are replaced. The DBESP report will be prepared in a manner consistent with the MSHCP and RCA guidelines and will contain the following required elements:
» Definition of the Project area and discussion of Project area’s relationship to Reserve Assembly. » Written Project description, demonstrating why an avoidance alternative is not feasible. » Description of biological information available for the Project site, including the results of resource mapping and required biological resource survey data.
» Quantification of unavoidable impacts to riparian/riverine areas associated with the Project, including direct and indirect effects.
» A written description of Project design features and mitigation measures that reduce indirect effects, such as edge treatments, landscaping, elevation difference, and minimization and/or compensation through restoration or enhancement. This includes an analysis of the functions and values affected by the proposed Project and of the functions and values of habitat to be created.
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» A finding demonstrating that, although the proposed Project would not avoid impacts, with the proposed design and compensation measures, the Project would be biologically equivalent or superior to what would occur under an avoidance alternative without these measures, based on one or more of the following factors: effects on Conserved Habitats, effects on MSHCP-identified species, and effects on riparian linkages and function of the MSHCP Conservation Area.

Once the final DBESP has been submitted to the regulatory agencies, they will be reviewed for accuracy, and the finding will be reviewed for compliance with the MSHCP. ECORP will address comments by the agencies.

Deliverables:
 Draft and Final DEBSP Report
TASK 11. CULTURAL RESOURCES SECTION 106 COMPLIANCE REPORT (OPTIONAL) If it is determined—based on permitting needs or for a CEQA Addendum—that Section 106 compliance of the National Historic Preservation Act is required, ECORP will update the previous cultural resources documentation for use in federal regulatory permitting that postdates the adoption of the CEQA document for the project. This scope of work includes a peer review of the prior reports prepared by URS Corporation in 2007 and 2009; a field inspection of any portions of the project that was not encompassed in previous field efforts to determine if ground conditions are similar to those during the original inventories; and a letter report that provides the updates and peer review, with recommended findings that are consistent with compliance with Section 106 of the National Historic Preservation Act. All work will be carried out by and under supervision of a Registered Professional Archaeologist (RPA) who meets the Secretary of the Interior’s Professional Qualifications Standards for historic and prehistoric archaeology.

Deliverables:
 If necessary, a Cultural Resources Inventory Letter Report will be submitted electronically to the client for review.

Schedule
PlaceWorks and ECORP will work with the City in a timely and professional manner in accordance with the Terms and Conditions attached and incorporated herein by reference in ECORP’s Scope of Work. These Terms and Conditions are a material part of this Agreement. The proposed schedule is shown in Table 1.

Table 1. Schedule

TASK TIME FRAME FOR COMPLETION
Task 1. Bio Resources Assessment, Burrowing Owl Habitat Assessment, MSHCP Consistency Analysis, and Bio Tech Report Biological Resources Assessment and Burrowing Owl
Assessment
1 to 2 weeks from notice to proceed and receipt of Project boundary files.

Draft MSHCP Consistency Analysis and Biological
Technical Report
6 weeks from completion of field survey
Final MSHCP Consistency Analysis and Biological Technical Report
2 weeks from receipt of comments
Task 2. Aquatic Resources Delineation
2A Aquatic Resources Delineation Update and Field
Verification
2 weeks from notice to proceed and receipt of Project
boundary files
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Table 1. Schedule

TASK TIME FRAME FOR COMPLETION
2B Draft Aquatic Resources Delineation Update Report 4 weeks from completion of field survey 2B Final Aquatic Resources Delineation Update Report 2 weeks from receipt of comments Task 3. Regulatory Permitting
3A USACE Nationwide Permit
3B CDFW Lake or Streambed Alteration Agreement
3C Application for Water Quality Certification/Waste
Discharge Requirements
Regulatory permitting for the Project will be initiated during the CEQA process as preparation of draft permit applications. The applications must include several items of information that are only available once the project has been fully designed and described. Permit processing by the agencies is expected to take 6 to 8 months.
3D Agency Meetings, Communications, and Negotiations Ongoing Tasks 4 and 5. Project Management, Coordination, and Client Request Support PlaceWorks and ECORP and Project Management Ongoing
Optional Tasks
Task 6 – Focused Burrowing Owl Surveys March 2024
Task 7 – Protocol Least Bell’s Vireo Surveys April 10 – July 31, 2023 (8 surveys no less than 10 days apart) Task 8a – Wet Season Fairy Shrimp Surveys November 2023 through May 2024 (weekly while inundated) Task 8b – Dry Season Fairy Shrimp Surveys July through October 2024 (1 day) Task 9 – Focused Crotch Bumble Bee Surveys April through July 2024 (4 surveys no less than 3 weeks part) Task 10 – Determination of Biologically Equivalent or
Superior Preservation (DEBSP) Report
6 weeks from completion of Final MSHCP Consistency Analysis and Biological Technical Report and Aquatic Resources
Delineation Report
Task 11 – Cultural Resources Section 106 Compliance
Report
4 weeks from notice to proceed and receipt of Project
boundary files

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Cost Estimate
PlaceWorks submits this cost estimate not to exceed $226,164, as shown in Table 2.

Table 2. Cost Estimate

TASK COST
Task 1. Biological Resources Assessment, Burrowing Owl Habitat Assessment, MSHCP Consistency Analysis, and Biological Technical Report $ 13,668 Task 2. Aquatic Resources Delineation 14,526
Task 3. Regulatory Permitting 16,137
Task 4. ECORP Project Management, Technical Support, Client Requests 6,270 Task 5. PlaceWorks Project Management 7,262
Subtotal $ 57,863

OPTIONAL TASKS
Task 6. Focused Burrowing Owl Surveys $ 20,290
Task 7. Protocol Least Bell’s Vireo Surveys 22,418
Task 8. Fairy Shrimp Surveys 41,734
Task 9. Focused Crotch Bumble Bee Surveys 65,236
Task 10. Determination of Biologically Equivalent or Superior Preservation Report 14,223 Task 11. Cultural Resources Section 106 Compliance Report 4,400 GRAND TOTAL with Optional Tasks $226,164
Subconsultants are billed at a 10% markup.

Acknowledgment
This proposal shall remain valid for a period of 30 days from the time of submittal. If you have any questions regarding the contents of this proposal, please contact Mark Teague at 916.245.7500 ext. 2730 / [email protected] (after November 13 when he returns from vacation) or his deputy principal-in-charge while he is away, Addie Farrell, at 213.623.1443 x 2119 / [email protected]. As a Principal, Addie is authorized to bind PlaceWorks and the project team to the contents of this proposal on Mark’s behalf.

We look forward to working with you to bring about the successful completion of this project.

Respectfully submitted,
PLACEWORKS signing on behalf of Mark Teague

Mark Teague, AICP Addie Farrell
Managing Principal, Environmental Services Principal, Environmental Services

526

CITY OF WILDOMAR

CC - REGULAR MEETING

CONSENT CALENDAR
Agenda Staff Report # 1.17
Meeting Date: November
8, 2023
SUBJECT:

Tres Lagos Affordability Covenant
SUBMITTED BY:

Thomas D Jex
PREPARED BY:

Thomas D Jex

ACTION:

Approve and authorize the City Manager to sign the Affordability Covenant regarding the Tres Lagos affordable housing project in substantially the same form as included in the agenda packet and authorize the City Manager to make modest adjustments as necessary.

BACKGROUND:

The Affordability Covenant for Phase I was approved by the City Council at the August 9, 2023 meeting.

DISCUSSION:

Phase II of the Tres Lagos affordable housing project (Palm Communities), located at 23345 and 23365 Catt Road, is intended to be developed with 89 rental multi-family residential units in which 88 units, including 11 one-bedroom units, 55 two-bedroom units, and 22 three- bedroom units will be restricted for occupancy by Eligible Households at Affordable Rents.

The Project was processed pursuant to SB 35 (Government Code § 65913.4), which requires a land use restriction or covenant to be recorded prior to the first building permit for the Project ensuring that the low-income units required by SB 35 remain available at affordable rent for 55 years.

According to California Government Code Section 65915 et seq. (“Density Bonus Statute”) and Chapter 17.290 of the City of Wildomar Municipal Code (“Density Bonus Ordinance”), the developer applied for and the City approved a density bonus and certain incentives and concessions for the Project pursuant to subsection (b)(1)(G) of the Density Bonus Statute, which requires all units in the Project, except for manager’s unit(s), to be restricted to Low- Income Households, except that up to 20% may be for Moderate-Income Households.

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This Affordability Covenant is intended to satisfy the affordability requirements set forth in SB 35, the Density Bonus Ordinance, and the Density Bonus Statute, and to regulate and restrict the occupancy and rents of the Project’s Restricted Units for the benefit of the Project occupants. The covenants set forth in the Affordability Covenant will run with the land.

ATTACHMENTS:

Affordability Covenent.pdf
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Wildomar
23873 Clinton Keith Road, Suite 110
Wildomar, CA 92595
Attention: City Clerk

EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383

Space above this line for Recorder’s use.

APN: 0380-_____-____

AFFORDABLE HOUSING AGREEMENT

AND

DECLARATION OF RESTRICTIVE COVENANTS

by and between

THE CITY OF WILDOMAR

and

WILDOMAR TRES LAGOS PARTNERS II LP,
a California limited partnership

(SB 35 and Density Bonus Below Market-Rate Rental Units) 529
2 This Affordable Housing Ag reement and Declaration of Restrictive Covenants (this “Agreement”) is entered into effective as of November ____, 2023 (“Effective Date”) by and between the City of Wildomar, a municipal corporation (“City”) and Wildomar Tres Lagos Partners II LP, a California limited partnership (“Owner”). The City and the Owner are collectively referred to herein as the “Parties.”

RECITALS
The following recitals are an integral part of this Agreement and are binding on the Parties. Capitalized terms used in these Recitals and elsewhere in this Agreement shall have the meanings ascribed to such terms as set forth in Section 1.2 below.

A. Owner is the owner of the real prope rty located in the City of Wildomar, Riverside County, California, at 23379, 23391, 23403, 23415, 23427 Catt Road, known as Riverside County Assessor’s Parcel No. 0380-100-022, and more particularly described in Exhibit A attached hereto (the “Property”).

B. Owner intends to develop an eighty-eight 88 unit multi-family residential rental development (the “Project”) on the Property in which eighty eight (87) dwelling units, including zero (0) studio apartments, forty (40) one-bedroom units, twenty-five (25) two-bedroom units, and twenty-two (22) three-bedroom units will be restricted for occupancy by Eligible Households at Affordable Rents as more particularly set forth in this Agreement.

C. The Project was processed pursuan t to SB 35 (Government Code § 65913.4), which requires a land use restriction or covenant to be recorded prior to the first building permit for the Project ensuring that the low-income units required by SB 35 remain available at affordable rent for fifty-five years.

D. Pursuant to California Government Code Section 65915 et seq. (the “Density Bonus Statute”) and Chapter 17.290 of the City of Wildomar Municipal Code (the “Density Bonus Ordinance”) Owner applied for and the City approved a density bonus and certain incentives and concessions for the Project pursuant to subsection (b)(1)(G) of the Density Bonus Statute, which requires all units in the Project, except for manager’s unit(s), to be restricted to Low-Income Households except that up to 20% may be for Moderate-Income Households.

Owner is required to enter into and record this Agreement against the Property to ensure the continued affordability of the units required by the Density Bonus Statute and Density Bonus Ordinance for fifty-five years.

E. This Agreement is intended to satisfy the affordability requirements set forth in SB 35, the Density Bonus Ordinance, and the Density Bonus Statute, and to regulate and restrict the occupancy and rents of the Project’s Restricted Units for the benefit of the Project occupants.

The Parties intend the covenants set forth in this Agreement to run with the land and to be binding upon Owner and Owner’s successors and assigns for the full term of this Agreement. 530
3 NOW THEREFORE, in consideration of the foregoing, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows.

1. Incorporation of Recitals; Definitions.

1.1 Incorporation of Recitals. The Part ies acknowledge the truth of the foregoing Recitals which are hereby incorporated into this Agreement.

1.2 Definitions. The following terms have th e meanings set forth in this Section wherever used in this Agreement or the attached exhibits. “ Actual Household Size" means the actual number of persons in the applicable household.
“Additional Low-Income Density Bonus Units” is defined in Section 2.1. "Affordable Rent" is defined in Section 2.1.

"Area Median Income" or "AMI" is defined in Section 2.1. “Assumed Household Size” means the number of bedrooms in a dwelling unit plus one, consistent with Section 50052.5(h) of the California Health and Safety Code, subject to the application of federal rules and regulations applicable to Project financing sources (if any) (e.g., a household of two persons in the case of a one-bedroom unit, a household of three persons in the case of a two-bedroom unit, and a household of four persons in the case of a three-bedroom unit).

“City” means the City of Wildomar, California

“City’s Authorized Representative” means the City Manager of the City of Wildomar.

“Claims” is defined in Section 10.
“Conditions of Approval” means the terms and conditions of all approvals, entitlements and permits that the City has granted or issued as of the date hereof or may hereafter grant or issue in connection with development of the Project, including without limitation, any mitigation measures imposed in connection with environmental review of the Project and all conditions of approval imposed in connection with any entitlements, approvals or permits. “CTCAC” means the California Tax Credit Allocation Committee.

“Density Bonus Ordinance” means Chapter 17.290 of the City of Wildomar Municipal Code.
“Density Bonus Statute” means California Government Code Section 65915 et. seq. “Eligible Household” means a household for which Gross Annual Household Income 531
4 upon initial occupancy does not exceed the maximum income level for a Restricted Unit as specified in Section 2.1.
“Gross Annual Household Income” is defined in Section 2.1. “Indemnitees” is defined in Section 10.
“Low-Income Household” means a household for which Gross Annual Household Income upon initial occupancy does not exceed eighty percent (80%) of Area Median Income as adjusted for Actual Household Size.
“Moderate-Income Density Bonus Units” is defined in Section 2.1. “Moderate-Income Household” means a household for which Gross Annual Household Income upon initial occupancy does not exceed one hundred twenty percent (120%) of Area Median Income as adjusted for Actual Household Size.
“Official Records” means the Official Records of the Riverside County Recorder. “Owner” is defined in the preamble to this Agreement. Each reference herein to the “Owner” shall mean the Owner and the Owner’s successors and assigns. “Project” is defined in Recital B.
“Property” is defined in Recital A.
"Restricted Unit" means a dwelling unit that is reserved for occupancy at an Affordable Rent by Eligible Households of specified household income levels as set forth in Section 2.1. “SB 35” means California Government Code Section 65913.4 (Chapter 366, Statutes of 2017, as subsequently amended).
“SB 35 Units” is defined in Section 3.

2. Use and Affordability Restrictions. Owner hereby covenants and agrees, for itself and its successors and assigns, that throughout the term of this Agreement (as defined in Section 4.1), the eighty-seven (87) residential units described in Section 2.1 shall be Restricted Units that shall be used solely as rental housing in compliance with the occupancy and affordability requirements set forth in this Agreement. Owner represents and warrants that it has not entered into any agreement that would restrict or compromise its ability to comply with the occupancy and affordability restrictions set forth in this Agreement, and Owner covenants that it shall not enter into any agreement that is inconsistent with such restrictions without the express written consent of City.

2.1 Affordability Requirements. Throughout th e Term of this Agreement (as defined in Section 4.1): (i) not less than forty-four (44) residential units in the Project (i.e., fifty percent (50%) of the total number of residential units in the Project) (the “SB 35 Units”) shall be restricted for occupancy at Affordable Rents by households whose Gross Annual Household 532
5 Income at initial occupancy is no greater than eighty percent (80%) of AMI as determined pursuant to the applicable definitions below, (ii) not less than twenty-six (26) additional residential units in the Project (the “Additional Low-Income Density Bonus Units”) shall be restricted for occupancy at Affordable Rents by households whose Gross Annual Household Income at initial occupancy is no greater than eighty percent (80%) of AMI as determined pursuant to the applicable definitions below; and (iii) not less than seventeen (17) additional residential units in the Project (the “Moderate-Income Density Bonus Units” shall be restricted for occupancy at Affordable Rents by households whose Gross Annual Household Income at initial occupancy is no greater than one hundred twenty percent (120%) of AMI as determined pursuant to the applicable definitions below. The SB 35 Units include 18 density bonus units subject to the requirements of clause I of California Government Code Section 65915(c)(1)(B)(ii). Area Median Income, Affordable Rent, and Gross Annual Household Income shall be determined for the SB 35 Units, the Additional Low-Income Density Bonus Units and the Moderate-Income Density Bonus Units in accordance with the following definitions:

“Area Median Income” or “AMI” means the following: (i) pursuant to California Government Code Section 65913.4(k) and clause I of California Government Code Section 65915(c)(1)(B)(ii), for the SB 35 Units and the Moderate-Income Density B onus Units, the median income for Riverside County, Californi a, adjusted for Actual Household Size, as determined by the U.S. Department of Housin g and Urban Development pursuant to Section 8 of the United States Housing Act of 1937 and as published from time to time by the State of California Department of Housing and Comm unity Development in Section 6932 of Title 25 of the California Code of Regulations or successor provision published pursuant to California Health and Safety Code Section 50093(c), and (ii) pursuant to clause II of California Government Code Section 65915(c)(1)(B)(ii), for the Add itional Low-Income Density Bonus Units, the median income for Riverside County, California, adjusted for Actual Household Size, as determined by CTCAC regulations.

"Affordable Rent" means the following: (i) pursuant to California Government Code Section 65913.4(k)(2)(A), clause I of California Government Code Section 65915(c)(1)(B)(ii), and Health and Safety Code Section 50053(b)(3), for the SB 35 Units, a monthly rent that does not exceed one-twelfth (1/12) of thirty percent (30%) of sixty percent (60%) of Area Median Income, Adjusted for Family Size Appropriate for the Unit, less a utility allowance and other fees and charges required to be paid by tenants of the Project on a non-optional basis, (ii) pursuant to clause I of California Government Code Section 65915(c)(1)(B)(ii) and Health and Safety Code Section 50053(b)(4), for the Moderate-Income Density Bonus Units, a monthly rent that does not exceed one-twelfth (1/12) of thirty percent (30%) of one hundred ten percent (110%) of Area Median Income, Adjusted for Family Size Appropriate for the Unit, less a utility allowance and other fees and charges required to be paid by tenants of the Project on a non- optional basis, and (iii) pursuant to clause II of California Government Code Section 65915(c)(1)(B)(ii), for the Add itional Low-Income Density Bonus Units. a monthly rent that does not exceed the maximum rent levels fo r lower-income households as determined by CTCAC regulations.

“Gross Annual Household Income” means the following: (i) pursuant to clause I of 533
6 California Government Code Section 65915(c)(1 )(B)(ii) and California Government Code Section 65913.4(k), for the SB 35 Units and the Moderate-Income Density B onus Units, the applicable household’s total gross income as determined in accordance with Section 6914 of Title 25 of the California Code of Regulations as such section may be revised from time to time, and (ii) pursuant to clause II of California Government Code Section 65915(c)(1)(B)(ii), for the Additional Low-Income Density Bonus Units, the applicable household’s total gross income as determined in accordance with Section 42(g)(2) of the Internal Revenue Code of 1986, as amended, and applicable federal and CTCAC regulations.

2.2 Rents for Restricted Units. Rents for the SB 35 Units, the Additional Low- Income Density Bonus Units and the Moderate-Income Density Bonus Units shall be limited to Affordable Rents for households of the applicable income limit in accordance with Section 2.1.

In the event that recertification of tenant in comes indicates that the number of Restricted Units actually occupied by Eligible Househol ds falls below the number reserved for each income group as specified in this Section 2.1, Owner shall rectif y the condition by renting the next available dwelling unit(s) in the Project to Eligible Househol d(s) until the required income mix is achieved.

2.3 Location; Amenities.

The moderate-income units shall not be concentrated in one location within the Project, nor clustered on one floor or within one area within any particular building comprising the Project, but instead shall be dispersed throughout the Project. All Restricted Units shall be comparable in their appearance, materials, and exterior and interior finishes. Residents of Restricted Units shall have access to all Project amenities and recreational facilities.

2.4 No Condominium Conversion ; Occupancy as Principal Residence; No Short-term Rentals. Owner shall not convert the Restricted Units to condominium or cooperative ownership during the term of this Agreement. The Restricted Units must be occupied as the principal residence of the tenant. The rental agreement or lease must provide that the tenant acknowledges and agrees that the Restricted Unit must be occupied as the household’s principal residence, and that the unit may not be subleased or made available as a short-term rental.

2.5 Non-Discrimination; Compliance with Fair Housing Laws.

2.5.1 Fair Housing. Owner shall comply with all applicable state and federal fair housing laws in the marketing and rental of all residential units in the Project. Owner shall accept as tenants, on the same basis as all other prospective tenants, persons who are recipients of federal certificates or vouchers for rent subsidies pursuant to the existing Section 8 program or any successor thereto.

2.5.2 Non-Discrimination. Owner shall no t restrict the rental, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any portion thereof, on the basis of race, color, religion, creed, sex, sexual orientation, disability, marital status, ancestry, or national origin of any person. Owner covenants for itself and all persons claiming under or through it, and this Agreement is made and accepted upon and subject to the condition 534
7 that there shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or part thereof, nor shall Owner or any person claiming under or through Owner establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in, of, or for the Property or part thereof. Owner shall include such provision in all deeds, leases, contracts and other instruments executed by Owner, and shall enforce the same diligently and in good faith.

3. Reporting Requirements; Access to Information; Inspections.

3.1 Tenant Certification. Owner or Owner’s authorized agent shall obtain from each household prior to initial occupancy of each Restricted Unit, and on every anniversary thereafter, a written certificate containing all of the following in such format and with such supporting documentation as City may reasonably require:
(a) The identity of each household member; and
(b) The total Gross Annual Household Income.

Alternatively, Owner may satisfy this requirement by delivering copies of the CTCAC Tenant Income Certification and CTCAC Project Status Report which will be delivered annually to CTCAC. Owner shall retain such certificates for not less than five (5) years, and upon City’s request, shall provide copies of such certificates to City and make the originals available for City inspection.

3.2 Annual Report; Inspections. Following completion of construction of the Restricted Units, by not later than April 30 of each year during the term of this Agreement, Owner shall submit an annual report (“Annual Report”) to the City in form satisfactory to City, together with a certification that the Project is in compliance with the requirements of this Agreement. The Annual Report shall, at a minimum, include the following information for each Restricted Unit: (i) unit number; (ii) number of bedrooms; (iii) current rent and other charges; (iv) dates of any vacancies during the previous year; (v) number of people residing in the unit; (vi) total Gross Annual Household Income; (vii) documentation of source of household income, (viii) lease commencement and termination dates, and (ix) initial move-in date.

Owner shall include with the Annual Report, an income recertification for each household, documentation verifying tenant eligibility, and such additional information as City may reasonably request from time to time in order to demonstrate compliance with this Agreement. The Annual Report shall conform to the format requested by City. Alternatively, Owner may satisfy this requirement by delivering copies of the CTCAC Tenant Income Certification and CTCAC Project Status Report which will be delivered annually to CTCAC. 535
8 3.3. Maintenance of Records.

(1) Owner shall maintain tenant le ases, income certifications, and other documents related to the leasing of the Restricted Units for a period of five (5) years after the final date of occupancy by the tenant.

(2) Records must be kept accurate and up-to-date. City shall notify Owner of any records it deems insufficient. Owner shall have fifteen (15) calendar days from such notice to correct any specified deficiency in the records, or, if more than fifteen (15) days shall be reasonably necessary to correct the deficiency, Owner shall begin to correct the deficiency within fifteen (15) days and diligently pursue the correction of the deficiency as soon as reasonably possible.

3.4 Access to Records; Inspections.

(1) Owner shall provide City and its authorized agents and representatives access during normal business hours to any books, documents, papers and records relating to the Restricted Units for the purpose of making audits, examinations, excerpts and transcriptions.

(2) With 48-hours' notice, during nor mal business hours and as often as may be deemed necessary, City and its authorized agents and representatives shall be permitted access to and the right to examine the Restricted Units and to interview tenants of the Restricted Units and employees of the Project, for the purpose of verifying compliance with applicable regulations and compliance with the conditions of this Agreement.

4. Term of Agreement.

4.1 Term of Restrictions. This Agreement shall remain in effect through the fifty- fifth (55th) anniversary of the date upon which City issues a final certificate of occupancy or equivalent for the Project upon completion of construction. If such date cannot be ascertained, the term of this Agreement shall end on the fifty-seventh (57th) anniversary of the Effective Date of this Agreement.

4.2 Effectiveness Succeeds Conveyance of Pr operty. This Agreement shall remain effective and fully binding for the full term hereof, regardless of any sale, assignment, transfer, or conveyance of the Property or the Project or any part thereof or interest therein.

4.3 Recordation. This Agreement shall be recorded in the Official Records as a condition precedent to City’s issuance of building permits for the Project.

4.4 Reconveyance. Upon the termination of this Agreement, the Parties agree to execute and record appropriate instruments to release and discharge this Agreement; provided, however, the execution and recordation of such instruments shall not be necessary or a prerequisite to the termination of this Agreement upon the expiration of the term.

5. Binding Upon Successors; Covenants to Run wi th the Land. Owner hereby subjects its interest in the Property and the Restricted Units to the covenants and restrictions set forth in this 536
9 Agreement. The City and Owner hereby declare their express intent that the covenants and restrictions set forth herein shall be deemed covenants running with the land and shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, transferees, and assigns of Owner and City, regardless of any sale, assignment, conveyance or transfer of the Property, the Project or any part thereof or interest therein. Any successor-in- interest to Owner, including without limitation any purchaser, transferee or lessee of the Property or the Project or part thereof (other than the tenants of the individual dwelling units within the Project) shall be subject to all of the duties and obligations imposed hereby for the full term of this Agreement. Each and every contract, deed, ground lease or other instrument affecting or conveying the Property or the Project or any part thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, restrictions, duties and obligations set forth herein, regardless of whether such covenants, restrictions, duties and obligations are set forth in such contract, deed, ground lease or other instrument. If any such contract, deed, ground lease or other instrument has been executed prior to the date hereof, Owner hereby covenants to obtain and deliver to City an instrument in recordable form signed by the parties to such contract, deed, ground lease or other instrument pursuant to which such parties acknowledge and accept this Agreement and agree to be bound hereby. Owner agrees for itself and for its successors that in the event that a court of competent jurisdiction determines that the covenants herein do not run with the land, such covenants shall be enforced as equitable servitudes against the Property and the Project in favor of City.

6. Property Management; Repair a nd Maintenance; Marketing.

6.1 Management Responsibilities. Owner sh all be responsible for all management functions with respect to the Property and the Project, including without limitation the selection of tenants, certification and recertification of household income and eligibility, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security. City shall have no responsibility for management or maintenance of the Property or the Project.

6.2 Management Entity. Owner may delegate management of the Restricted Units to a management company or other organization that has experience in the management of affordable rental units, including without limitation, experience in screening and qualifying applicants for income-restricted units. The contracting of management services to a management entity shall not relieve Owner of its primary responsibility for proper performance of management duties.

6.3 Repair and Maintenance. Throughout the te rm of this Agreement, Owner shall at its own expense, maintain the Property and the Project in good physical condition, in good repair, and in decent, safe, sanitary, habitable and tenantable living conditions in conformity with all applicable state, federal, and local laws, ordinances, codes, and regulations. Without limiting the foregoing, Owner agrees to maintain the Project and the Property (including without limitation, the residential units, common areas, meeting rooms, landscaping, driveways, parking areas and walkways) in a condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and shall take all commercially reasonable steps to prevent the same from occurring on the Property or at the Project. Owner shall prevent and/or rectify any physical deterioration of the Property and the 537
10 Project and shall make all repairs, renewals and replacements necessary to keep the Property and the improvements located thereon in good condition and repair, reasonable wear and tear excepted.

6.3.1 Additional Requirements. All construction work and professional services for the Project shall be performed by persons or entities licensed or otherwise authorized to perform the applicable work or service in the State of California and shall have a current City of Wildomar business registration if required under local law. Owner shall diligently work to resolve complaints related to noise, parking, litter or other neighborhood concerns.

6.4 City’s Right to Perform Mainte nance. In the event that Owner breaches any of the covenants contained in Section 6.3 or Section 6.3.1, and such default continues for a period of ten (10) days after written notice from City (with respect to graffiti, debris, and waste material) or thirty (30) days after written notice from City (with respect to landscaping, building improvements and general maintenance), then City, in addition to any other remedy it may have under this Agreement or at law or in equity, shall have the right, but not the obligation, to enter upon the Property and perform all acts and work necessary to protect, maintain, and preserve the improvements and the landscaped areas on the Property. All costs expended by City in connection with the foregoing, shall be paid by Owner to City upon demand. All such sums remaining unpaid thirty (30) days following delivery of City’s invoice therefor shall bear interest at the lesser of 10% per annum or the highest rate permitted by applicable law. City shall have a lien against the Property for the amount of such unpaid sums and shall have the right to record a Notice of Claim of Lien against the Property.

6.7 Fees, Taxes, and Other Levies. Owner shall be responsible for payment of all fees, assessments, taxes, charges, liens and levies applicable to the Property or the Project, including without limitation possessory interest taxes, if applicable, imposed by any public entity, and shall pay such charges prior to delinquency. However, Owner shall not be required to pay any such charge so long as (a) Owner is contesting such charge in good faith and by appropriate proceedings, (b) Owner maintains reserves adequate to pay any contested liabilities, and (c) on final determination of the proceeding or contest, Owner immediately pays or discharges any decision or judgment rendered against it, together with all costs, charges and interest. The foregoing is not intended to impair Owner’s ability to apply for any applicable exemption from property taxes or other assessments and fees.

6.8 Insurance Coverage. Throughout the term of this Agreement, at Owner’s expense, Owner shall maintain property and commercial general liability insurance consistent with the usual and customary coverage carried by owners of similar projects in the area and consistent with the requirements of any lender that holds a lien on the Property.

6.9 Property Damage or Destruction. If any of the Restricted Units are damaged or destroyed, Owner shall repair or restore the same, consistent with the occupancy and rent restriction requirements set forth in this Agreement. Such work shall be commenced as soon as reasonably practicable after the damage or loss occurs and shall be completed within one year thereafter or as soon as reasonably practicable, provided that insurance proceeds are available to be applied to such repairs or restoration within such period and the repair or restoration is financially feasible. During such time that lenders or investors providing financing for the 538
11 Project impose requirements that differ from the requirements of this Section the requirements of such lenders and investors shall prevail.

7. Subordination. Owner hereby represents, warrants and covenants that with the exception of easements of record, absent the written consent of City which City may grant or withhold in the exercise of its sole discretion, this Agreement shall not be subordinated in priority to any lien (other than those pertaining to taxes or assessments), encumbrance, or other interest in the Property or the Project. If at the time this Agreement is recorded, any interest, lien, or encumbrance has been recorded against the Project in position superior to this Agreement, upon the request of City, Owner hereby covenants and agrees to promptly undertake all action necessary to clear such matter from title or to subordinate such interest to this Agreement consistent with the intent of and in accordance with this Section 7, and to provide such evidence thereof as City may reasonably request.

8. Encumbrance.

8.1 Encumbrances. Owner agrees to use commercially reasonable efforts to ensure that all deeds of trust or other security instruments and any applicable subordination agreement recorded against the Property, the Project or part thereof for the benefit of a lender (“Lender”) shall contain each of the following provisions: (i) Lender shall use its best efforts to provide to City a copy of any notice of default issued to Owner concurrently with provision of such notice to Owner; and (ii) City shall have the reasonable right, but not the obligation, to cure any default by Owner within the same period of time provided to Owner for such cure extended by an additional ninety (90) days. Owner agrees to provide to City a copy of any notice of default Owner receives from any Lender within five (5) business days following Owner’s receipt thereof.

8.2 Mortgagee Protection. No vi olation of any provision contained herein shall defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value upon all or any portion of the Project or the Property, and the purchaser at any trustee’s sale or foreclosure sale shall not be liable for any violation of any provision hereof occurring prior to the acquisition of title by such purchaser. Such purchaser shall be bound by and subject to this Agreement from and after such trustee’s sale or foreclosure sale. Promptly upon determining that a violation of this Agreement has occurred, City shall give written notice to the holders of record of any mortgages or deeds of trust encumbering the Project or the Property that such violation has occurred, and any mortgagee of record shall have the reasonable right, but not the obligation, to cure any default by Owner under this Agreement within the same period of time provided to Owner for such cure.

8.3 Estoppel Statement. Within thirty (3 0) days after request by Owner, City shall provide an estoppel statement to any lender or prospective purchaser of the Property which confirms Owner’s compliance with this Agreement (or specifying any non-compliance) together with such other matters reasonably requested by such lender or prospective purchaser. 539
12 9. Default and Remedies.

9.1 Events of Default. The occurrence of any one or more of the following events shall constitute an event of default hereunder ("Event of Default"):
(a) Owner’s failure to maintain insurance as required hereunder, and the failure of Owner to cure such default within five (5) days; (b) Subject to Owner’s right to contest the following charges, Owner’s failure to pay taxes or assessments due on the Property or the Project prior to delinquency, or failure to pay any other charge that may result in a lien on the Property or the Project, and Owner’s failure to cure such default within twenty (20) days of delinquency, but in all events prior to the date upon which the holder of any such lien has the right to foreclose thereon; (c) Owner’s default in the performance of any term, provision or covenant under this Agreement (other than an obligation enumerated in this Section 9.1), and unless such provision specifies a shorter cure period for such default, the continuation of such default for ten (10) days in the event of a monetary default or thirty (30) days in the event of a non-monetary default following the date upon which City shall have given written notice of the default to Owner, or if the nature of any such non-monetary default is such that it cannot be cured within thirty (30) days, Owner’s failure to commence to cure the default within thirty (30) days and thereafter prosecute the curing of such default to completion with due diligence and in good faith, but in no event later than ninety (90) days from receipt of the notice of default.

Notwithstanding anything to the contrary contained herein, Owner’s Limited Partner shall have the right, but not the obligation, to cure an event of default hereunder and City agrees to accept or reject such cure on the same basis as if provided by Owner itself.

9.2 Remedies. Upon the occurrence of an Event of Default and its continuation beyond any applicable cure period, City may proceed with any of the following remedies:

A. Bring an action for equitable relief se eking the specific performance of the terms and conditions of this Agreement, and/or enjoining, abating, or preventing any violation of such terms and conditions, and/or seeking declaratory relief; B. For violations of obligations with resp ect to rents for Restricted Units, impose a charge in an amount equal to the actual amount collected in excess of the Affordable Rent; provided however, any charge imposed after a foreclosure shall be limited to the amount collected in excess of the Affordable Rent following such foreclosure.

C. Pursue any other remedy allowed at law or in equity.

Each of the remedies provided herein is cu mulative and not exclusive. The City may exercise from time to time any rights and remedies available to it under applicable law or in equity, in addition to, and not in lieu of, any rights and remedies expressly provided in this Agreement.

540
13 10. Indemnity. To the greatest extent permitted by law, Owner shall indemnify, defend (with counsel approved by City) and hold the City and its elected and appointed officers, officials, employees, agents, consultants, and contractors (all of the foregoing, collectively, the “Indemnitees”) harmless from and against all liability, loss, cost, expense (including without limitation attorneys’ fees and costs of litigation), claim, demand, action, suit, judicial or administrative proceeding, penalty, deficiency, fine, order, and damage (all of the foregoing collectively “Claims”) arising directly or indirectly, in whole or in part, as a result of or in connection with Owner’s or Owner’s employees’ agents’, contractors’ or subcontractors’ (all of the foregoing, collectively “Owner’s Parties”) construction, management, or operation of the Property and the Project, failure to comply with applicable laws, including without limitation, state and federal fair housing laws, or any failure to perform any obligation as and when required by this Agreement. Owner’s indemnification obligations under this Section 10 shall not extend to Claims to the extent resulting from the gross negligence or willful misconduct of Indemnitees.

The provisions of this Section 10 shall survive the expiration or earlier termination of this Agreement. City does not and shall not waive any rights that it may have by reason of any indemnity and hold harmless provisions set forth in this Agreement because of City’s acceptance, or Owner’s deposit with City, of any of the insurance policies described in this Agreement.

11. Miscellaneous.

11.1 Amendments. This Agreement may be amended or modified only by a written instrument signed by both Parties and recorded in the Official Records.

11.2 No Waiver. Any waiver by City of any term or provision of this Agreement must be in writing. No waiver shall be implied from any delay or failure by City to take action on any breach or default hereunder or to pursue any remedy allowed under this Agreement or applicable law. No failure or delay by City at any time to require strict performance by Owner of any provision of this Agreement or to exercise any election contained herein or any right, power or remedy hereunder shall be construed as a waiver of any other provision or any succeeding breach of the same or any other provision hereof or a relinquishment for the future of such election.

11.3 Notices. Except as otherwise specified he rein, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by (i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered upon receipt if delivery is confirmed by a return receipt; or (iii) nationally recognized overnight courier, with charges prepaid or charged to the sender’s account, in which case notice is effective on delivery if delivery is confirmed by the delivery service.

C i t y : City of Wildomar
23873 Clinton Keith Road, Suite 110
Wildomar, CA 92595
Attention: City Manager
Owner: c/o Palm Communities
541
14 100 Pacifica, Suite 203
Irvine, CA 92618
Attn: Danavon L. Horn

With a copy to: c/o Hunt Capital Partners, LLC

15910 Ventura Boulevard, Suite 1100
Encino, California 91436

and: Nixon Peabody LLP
799 9th Street NW Suite 500,
Washington, DC 20001-5327
Attention: Emily L. McKinney

11.4 Further Assurances. The Parties shall execute, acknowledge and deliver to the other such other documents and instruments, and take such other actions, as either shall reasonably request as may be necessary to carry out the intent of this Agreement.

11.5 Parties Not Co-Venturers; Independent Contractor; No Agency Relationship.

Nothing in this Agreement is intended to or shall establish the Parties as partners, co-venturers, or principal and agent with one another. The relationship of Owner and City shall not be construed as a joint venture, equity venture, partnership or any other relationship. City neither undertakes nor assumes any responsibility or duty to Owner (except as expressly provided in this Agreement) or to any third party with respect to the Project. Owner and its employees are not employees of City but rather are, and shall always be considered independent contractors.

Furthermore, Owner and its employees shall at no time pretend to be or hold themselves out as employees or agents of City. Except as City may specify in writing, Owner shall not have any authority to act as an agent of City or to bind City to any obligation.

11.6 Action by the City. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent or request by the City is required or permitted under this Agreement, such action shall be in writing, and such action may be given, made or taken by the City’s Authorized Representative or by any person who shall have been designated by the City’s Authorized Representative, without further approval by the City Council.

11.7 Non-Liability of City an d City Officials, Employees and Agents. No member, official, employee or agent of the City shall be personally liable to Owner or any successor in interest, in the event of any default or breach by the City, or for any amount of money which may become due to Owner or its successor or for any obligation of City under this Agreement.

11.8 Headings; Construction; Stat utory References. The headings of the sections and paragraphs of this Agreement are for convenience only and shall not be used to interpret this Agreement. Unless expressly stated otherwise, each reference to a particular Section of this Agreement shall mean all subsections and subparagraphs of such Section. The language of this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any Party. All references in this Agreement to particular statutes, regulations, ordinances or resolutions of the United States, the State of California, or the City of Wildomar shall be deemed to include the same statute, regulation, ordinance or resolution as hereafter amended or 542
15 renumbered, or if repealed, to such other provisions as may thereafter govern the same subject.

11.9 Time is of the Essence. Time is of the essence in the performance of this Agreement.

11.10 Governing Law; Venue. This Agreement shall be construed in accordance with the laws of the State of California without regard to principles of conflicts of law. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior Court of Riverside County, California or in the Federal District Court for the Central District of California.

11.11 Attorneys' Fees and Costs. If any le gal or administrative action is brought to interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to recover all reasonable attorneys' fees and costs incurred in such action.

11.12 Severability. If any provision of this Agreement is held invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired thereby.

11.13 Entire Agreement; Exhibits. This Agr eement, together with the Conditions of Approval for the Project, contains the entire agreement of Parties with respect to the subject matter hereof, and supersedes all prior oral or written agreements between the Parties with respect thereto. Exhibits A and B, attached hereto are incorporated herein by this reference.

11.14 Counterparts. This Agreement may be ex ecuted in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.

SIGNATURES ON FOLLOWING PAGES.
543
16 IN WITNESS WHEREOF, the Parties have ex ecuted this Affordable Housing Agreement and Declaration of Restrictive Covenants as of the date first written above.

CITY:

CITY OF WILDOMAR, a municipal corporation

_______________________________
City Manager

Approved as to form:

_____________________________
City Attorney

OWNER:

WILDOMAR TRES LAGOS PARTNERS II LP,
a California limited partnership
By: PC Wildomar Developers II LLC,
a California limited liability company,
its administrative general partner
By: Palm Communities,
a California corporation,
its manager

By: __________________________
Danavon L. Horn, President
By: Las Palmas Housing & Development Corporation,
a California nonprofit pub lic benefit corporation,
its managing general partner

By: ________________________
Joseph M. Michaels, President

SIGNATURES MUST BE NOTARIZED.
544
17 ACKNOWLEDGMENT

State of California )
) s s
County of ___________ )

On , before me,___________________________________________, ( N a m e o f N o t a r y )

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.

(Notary Signature)
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,
accurac
y, or validity of that document.
545
18 ACKNOWLEDGMENT

State of California )
) s s
County of ___________ )

On , before me,___________________________________________, ( N a m e o f N o t a r y )

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.

(Notary Signature)
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,
accurac
y, or validity of that document.
546
19 Exhibit A

PROPERTY

Real property situated in the C ity of Wildomar, County of Rivers ide, State of California, and described as follows:

Current APNS:

New APN:

547
20 Exhibit B

NUMBER OF RESTRICTED UNITS BY UNIT SIZE

AND TARGETED AREA MEDIAN INCOME (AMI) LEVELS

Maximum
Household
Income

80% AMI
Low-Income
120% AMI
Moderate-Income
Total
Studio

0 0

1-Bedroom

40 40
2-Bedroom

25 25
3-Bedroom

22 22
4-Bedroom

0 0

TOTAL
87 87

548

CITY OF WILDOMAR

CC - REGULAR MEETING

CONSENT CALENDAR
Agenda Staff Report # 1.18
Meeting Date: November
8, 2023
SUBJECT:

Approve Facilities Contract Specialist Classification
Description,
Revise the
Position Classification Schedule, and
Amend the Existing Pay Plan to Add the New Classification

ACTION:

Adopt a Resolution entitled:

RESOLUTION NO. 2023 - ____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WILDOMAR, CALIFORNIA, ADDING A FACILITIES CONTRACT SPECIALIST CLASSIFICATION DESCRIPTION; AMENDING THE EXISTING PAY PLAN; AND REVISING THE POSITION CLASSIFICATION

SCHEDULE TO INCLUDE THE FACILITIES CONTRACT SPECIALIST CLASSIFICATION

SUMMARY:

This action will approve a new Facilities Contract Specialist classification description; add the placement of the Facilities Contract Specialist to the classification plan; and amends the existing Pay Plan to set the pay range for the Facilities Contract Specialist.

BACKGROUND:

The purchase of the City Hall building is scheduled to close escrow November 3, 2023. The Purchase and Sales Agreement includes provisions for the current maintenance contracts and services through March 31, 2024. The City will then take over full maintenance of the City Hall building. The City also maintains the buildings at the parks, the cemetery and the fire station.

Facilities maintenance of existing facilities is currently completed via contract work. Each contract requires specific oversight from an individual experienced in the maintenance of commercial facilities.

DISCUSSION:

In order to ensure City facilities are well maintained through comprehensive contract oversight 549
and inspection, City staff recommends adding a Facilities Contract Specialist classification to the City’s Classification Plan. This position will oversee all facilities maintenance contracts and inspect ongoing and completed work and provide basic maintenance as issues arise.

The updated Pay Plan incorporates the Facilities Contract Specialist classification. This classification is listed as a non-exempt, general position and compensated in line with Pay Grade 119, with an annual maximum rate of $92,211.28, effective December 30, 2023.

FISCAL IMPACT:

The fiscal impact for the remainder of fiscal year 2023-24 is approximately $55,000, which includes associated roll-up costs, such as benefits and CalPERS contributions. This position will be budgeted in the Community Services budget.

ACCOUNT CODE:
75% 100-410-4610
25% 300-470-4725

ATTACHMENTS:

Attachment A. Resolution
Exhibit A. Facilities Contract Specialist Classification Description Exhibit B. Pay Plan
Exhibit C. Position Classification Schedule
550
RESOLUTION NO. 2023 -

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WILDOMAR, CALIFORNIA, ADDING A FACILITIES CONTRACT SPECIALIST CLASSIFICATION DESCRIPTION; AMENDING THE EXISTING PAY PLAN; AND REVISING THE POSITION

CLASSIFICATION SCHEDULE TO INCLUDE THE FACILITIES CONTRACT

SPECIALIST CLASSIFICATION
WHEREAS, the City Council approved the purchase of the City Hall building; WHEREAS, the City of Wildomar (“City”) is responsible for the maintenance of the newly purchased building, as well as additional buildings owned by the City; WHEREAS, the City utilizes contract services to ensure facilities are maintained in a safe and efficient manner; and
WHEREAS, in order to ensure contract work is completed to City standards, the City wishes to add the Facilities Contract Specialist to the Position Classification Schedule.

NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Wildomar, California, as follows:

SECTION 1. POSITION CLASSIFICATION DESCRIPTION. Effective December 30, 2023, the City adopts the Facilities Contract Specialist classification description, attached to this Resolution as Exhibit “A”.

SECTION 2. PAY PLAN. Effective December 30, 2023, the City adopts a revised City of Wildomar Pay Plan adding the new Facilities Contract Specialist classification at pay grade 119 with an annual salary range of $62,399.08 to $90,211.28, attached to this Resolution as Exhibit “B”.

SECTION 3. POSITION CLASSIFICATION SCHEDULE. Effective December 30, 2023, the City adopts a revised Position Classification Schedule to reflect the addition of the Facilities Contract Specialist classification, attached to this Resolution as Exhibit “C.” PASSED, APPROVED, AND ADOPTED this 8th day of November, 2023.

Joseph Morabito
Mayor
APPROVED AS TO FORM: ATTEST:

Thomas D. Jex Janet Morales
City Attorney City Clerk 551

CITY OF WILDOMAR

CLASSIFICATION DESCRIPTION
Facilities Contract Specialist