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movements, two 8-foot-wide outside shoulders, relocating utilities, and extending and/or replacing existing cross culverts under the current roadway.
Within Drainage E2, project activities will consist of grading and the installation of a
0.01-acre riprap splash pad for the outlet of the Line N drainage system. Approximately
0.009 acres of Drainage E3 and 0.004 acres of Drainage E4 will be filled and paved during road widening activities. A 0.01-acre riprap splash pad for the outlet of the Line W drainage system will be installed in Drainage E12. Activities within Drainage E11 and E14 will consist of fill from road widening and the replacement of existing riprap and concrete collars associated with the current drainage system (See Exhibits 2a through 2d).
Table 1: Summary of Work Description, Affected Habitat, and Affected Acreages Feature Work
Description
Description
of Affected
Habitat
Affected
Jurisdictional
Impacts
Affected Area
Acreage Linear Feet
E.2 Non-Wetland Permanent 0.030 40
Grading Temporary 0.210 530
E.2 Rip rap splash
pad for Line N
drainage system
Wetland Permanent
0.010
45 Grading only Temporary 0.020 131
E.3 Roadway
widening, new
asphalt
pavement
Non-Wetland Permanent
0.019
132
Infill for
sidewalk, Line N
drainage system
and grading
Temporary
0.025
89 E.4 Road widening,
new asphalt
pavement.
Riparian
Vegetation
(Oak
Communities)
Permanent
0.002
17 Infill for
sidewalk, Line N
drainage system
and grading.
Temporary
0.010
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E.7 Roadway
widening, new
asphalt
pavement
Non-Wetland Permanent
0.004
71 Grading and
Line T drainage
system
Temporary
0.001
23 E.8 Non-Wetland Permanent
0.000
0 Grading only Temporary
0.021
56 E.11 Roadway
widening, new
asphalt
pavement
Non-Wetland Permanent
0.008
170
Grading, rip rap,
concrete collar
for drainage line
V
Temporary
0.009
180
E.12 Rip rap splash
pad for Line W
Non-Wetland Permanent
0.001 3
Temporary
0 E.14 Roadway
widening, new
asphalt
pavement
Non-Wetland Permanent
0.005 49
Grading, rip rap,
concrete flared
end section
Temporary
0.005 45
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TOTAL PERMANENT IMPACTS 0.08 527
TOTAL TEMPORARY IMPACTS 0.31 1110
The following wildlife crossings will be constructed at the following roadway station locations: a 48-inch culvert at Station Number 88+30, a 60-inch culvert at Station Number 93+80, and a 36-inch culvert at Station Number 115+20.
PROJECT IMPACTS
Existing fish or wildlife resources the project could substantially adversely affect include:
Birds: Bell’s sparrow (Artemisiospiza belli belli), burrowing owl (Athene cunicularia), California horned lark (Eremophila alpestris actia), coastal California gnatcatcher (Polioptila californica californica), Cooper’s hawk (Accipiter cooperii), loggerhead shrike (Lanius ludovicianus), southern California rufous-crowned sparrow (Aimophila ruficeps canescens), least Bell's vireo (Vireo bellii pusillus), white-tailed kite (Elanus leucurus), and white-faced ibis (Plegadis chihi);
Crustaceans: Riverside fairy shrimp (Streptocephalus woottoni); Insects: Crotch’s bumble bee (Bombus crotchii), senile tiger beetle (Cicindela senilis frosti), and quino checkerspot butterfly (Euphydryas editha quino); Mammals: southern grasshopper mouse (Onychomys torridus ramona), northwest San Diego pocket mouse (Chaetodipus fallax fallax), San Diego black-tailed jackrabbit (Lepus californicus bennettii), Stephens’ kangaroo rat (Dipodomys stephensi), western mastiff bat (Eumops perotis californicus), and western yellow bat (Lasiurus xanthinus); Reptiles: California glossy snake (Arizona elegans occidentalis), coast horned lizard (Phrynosoma coronatum blainvillii), Coast Range newt (Taricha torosa), coastal whiptail (Aspidoscelis tigris stejnegeri), orangethroat whiptail (Aspidoscelis hyperythra), western spadefoot toad (Spea hammondii), western pond turtle (Emys marmorata), and red- diamond rattlesnake (Crotalus ruber);
Plants: California Orcutt grass (Orcuttia californica), Coulter's goldfields (Lasthenia glabrata ssp. coulteri), long-spined spineflower (Chorizanthe polygonoides var. longispina), Munz's onion (Allium munzii), Parry's spineflower (Chorizanthe parryi var. parryi), rainbow manzanita (Arctostaphylos rainbowensis), Robinson's pepper-grass (Lepidium virginicum var. robinsonii), spreading navarretia (Navarretia fossalis), smooth tarplant (Centromadia pungens ssp. laevis), San Miguel savory (Clinopodium chandleri), Santa Rosa Basalt brodiaea (Brodiaea santarosae), Tecate cypress (Hesperocyparis forbesii), thread-leaved brodiaea (Brodiaea filifolia), and white rabbit-tobacco (Pseudognaphalium leucocephalum).
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Plant Communities: Southern Sycamore Alder Riparian Woodland, Southern Cottonwood Willow Riparian Forest, and Southern Coast Live Oak Riparian Forest.
The adverse effects the Project could have on the fish or wildlife resources identified above include: disturbance from Project activity; disturbance to, alteration of, and/or loss of: nesting, roosting, foraging, and refugia habitat, and wildlife corridors; and reduction and loss of habitat coverage, composition, distribution, and cross- pollination/reproductive opportunity; changes in the bed, bank, or channel.
The Project will temporarily impact 0.31 acres and permanently impact 0.08 acres associated with unnamed tributaries to Bundy Canyon Creek. The Project will impact a total of 0.39 acres of stream bed, bank, and channel, which are the limits of the Project impacts authorized under this agreement (See Table 1).
MEASURES TO PROTECT FISH AND WILDLIFE RESOURCES
1. Administrative Measures
Permittee shall meet each administrative requirement described below.
1.1. Documentation at Project Site. Permittee shall make the Agreement, any extensions and amendments to the Agreement, and all related notification materials and California Environmental Quality Act (CEQA) documents, readily available at the project site at all times and shall be presented to CDFW personnel, or personnel from another state, federal, or local agency upon request.
1.2. Providing Agreement to Persons at Project Site. Permittee shall provide copies of the Agreement and any extensions and amendments to the Agreement to all persons who will be working on the project at the project site on behalf of Permittee, including but not limited to contractors, subcontractors, inspectors, and monitors.
1.3. Notification of Conflicting Provisions. Permittee shall notify CDFW if Permittee determines or learns that a provision in the Agreement might conflict with a provision imposed on the project by another local, state, or federal agency. In that event, CDFW shall contact Permittee to resolve any conflict.
1.4. Project Site Entry. Permittee agrees that CDFW personnel may enter the project site at any time to verify compliance with the Agreement.
1.5. Compliance within Western Riverside County Multiple Species Habitat Conservation Plan (MSCHP) and Take of Listed Species. Take of any California Endangered Species Act (CESA)-listed species is prohibited except as authorized by state law (Fish and Game Code, §§ 2080, 2085 & 2800).
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CDFW recommends that the Project proponent seek appropriate authorization prior to Project implementation. Additionally, the issuance of a draft or final Agreement does not infer that the Project is consistent with the MSHCP or that the Project has demonstrated that it is a Biologically Equivalent or Superior Preservation Alternative. If modifications to the Project are necessary for MSHCP compliance, then a request for an amendment to this Agreement will be required.
1.6. Take of Nesting Birds. Fish and Game Code section 3503 makes it unlawful to take, possess, or needlessly destroy the nest or eggs of any bird, except as otherwise provided by Fish and Game Code or any regulation made pursuant thereto. Fish and Game Code section 3503.5 makes it unlawful to take, possess, or destroy any birds in the orders Falconiformes or Strigiformes (birds-of-prey) to take, possess, or destroy the nest or eggs of any such bird except as otherwise provided by Fish and Game Code or any regulation adopted pursuant thereto.
Fish and Game Code Section 3513 makes it unlawful to take or possess any migratory nongame bird except as provided by the rules and regulations adopted by the Secretary of the Interior under provisions of the Migratory Bird Treaty Act 1918, as amended (16 U.S.C. § 703 et seq.). The issuance of this Agreement does not in any way exempt or excuse compliance with these statutes.
1.7. Additional Project Impacts. Permittee shall submit to CDFW a request to amend this Agreement if any additional impacts to Fish and Game Code section 1602 resources, or additional operations and maintenance activities not identified in this Agreement are anticipated. No additional impacts to Fish and Game Code section 1602 resources are authorized unless the impacts and/or activities are expressly authorized by CDFW by amendment to this Agreement.
1.8. Notify CDFW Prior to Work. Permittee shall notify CDFW by email at least five (5) working days prior to initiation of Project activities. See contact information below.
1.9. Reporting of Violations. Permittee shall report any violations of the Agreement, whether committed by Permittee or any person acting on behalf of Permittee, to the CDFW contact identified below within 48 hours of the violation occurring (per Measure 4.2).
1.10. No Trespass. To the extent that any provisions of this Agreement provide for activities that require the Permittee to traverse another owner’s property, such provisions are agreed to with the understanding that the Permittee possesses the legal right to so traverse. In the absence of such right, any such provision is void.
1.11. Dead or Injured Species. Permittee shall report any dead or injured CESA- or ESA- listed threatened, endangered, or fully protected species, or species of special concern found along roads or in Project areas to CDFW within 24 hours via email according to contact information below. The Permittee shall report 338
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whether the dead or injured species was found on site, or caused due to Project activities, the location, cause of death, species found, and any other relevant information.
1.12. Compliance with other Agencies. The Agreement does not relieve the Permittee of responsibilities for compliance with applicable federal, state, or local laws, ordinances or grant conditions.
2. Avoidance and Minimization Measures
To avoid or minimize adverse impacts to fish and wildlife resources identified above, Permittee shall implement each measure listed below.
General Wildlife Protection and Prevention Measures
2.1. Designated Biologist(s) and Biological Monitor(s). Permittee shall submit to CDFW for review and approval the names, qualifications, business addresses, and contact information of any qualified biologists (Designated Biologist(s)) and Biological Monitor(s) that will be utilized to conduct species/habitat surveys, biological monitoring, or mitigation planning and implementation activities at least 30 days before initiating ground- or vegetation- disturbing activities. Permittee shall specify the proposed responsibilities of each Designated Biologist(s) and/or Biological Monitor(s) and provide clear evidence of knowledge, experience, and capability of performing those proposed duties. Optional CDFW biologist resume form available here: Lake and Streambed Alteration Program Resources.
2.1.1. A qualified Designated Biologist(s) is an individual who holds a bachelor’s degree from an accredited university and 1) is knowledgeable in relevant species’ life histories and ecology, 2) can correctly identify relevant species, 3) has conducted field surveys for relevant species, 4) is familiar with relevant survey protocols, and 5) is knowledgeable of state and federal laws regarding the protection of sensitive species.
2.1.2. A Biological Monitor(s) is an individual who shall have academic and professional experience in biological sciences and related resource management activities as it pertains to this Project, experience with construction-level biological monitoring, be able to recognize species that may be present within the Project area and be familiar with the habitats and behaviors of those species.
2.2. Responsibility of the Designated Biologist(s). The Designated Biologist(s) shall be responsible for monitoring activities addressed by this Agreement, including, but not limited to all activities that result in clearing, grading, drilling, and/or other ground-disturbing activities. To ensure compliance with the measures of this Agreement, the Designated Biologist(s) shall confirm and monitor the limits of Project activities addressed by this Agreement.
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2.3. Authority of Designated Biologist(s). To ensure compliance with the measures of this Agreement, the Designated Biologist(s) shall have the authority to immediately halt any activity that does not comply with this Agreement, order any reasonable measure to avoid the violation of any measure of this Agreement, and directly contact CDFW for any reason. If the Designated Biologist(s) determines that the Project may have an adverse effect on any special-status species (threatened, endangered, candidate, species of special concern, etc.), they shall halt construction and notify the appropriate agencies immediately. Unless authorized by CDFW, the Designated Biologist(s) shall not have the authority to handle any special-status species (threatened, endangered, candidate, species of special concern, etc.).
2.4. Biological Monitoring. The Designated Biologist(s) shall be responsible for monitoring all Project activities that have the potential to impact fish and wildlife resources subject to Fish and Game Code section 1600 et seq., including streams, associated vegetation/habitat, and wildlife. The Designated Biologist(s) shall ensure that all avoidance and minimization measures are implemented and maintained, including, but not limited to: determining and delineating appropriate avoidance and buffer areas, maintaining delineated access routes and work areas, monitoring for the presence of, and potential impacts to, special-status species, and maintaining/repairing/replacing any exclusionary fencing and trench/excavation covers.
2.5. Delineate Work Area Boundary. In consultation with the Designated Biologist(s), Permittee shall clearly delineate the outer perimeter of the work areas and access routes with appropriate fencing, signage, and/or flagging to prevent damage to adjacent habitats prior to start of Project activities. The delineation materials shall be in place during all periods of operation and all persons employed or otherwise working on the Project site shall be instructed about the restrictions.
Permittee shall ensure the delineation materials are monitored daily, and maintained, repaired, or replaced immediately if the materials are damaged, lost, stolen, or become ineffective in any way. The Designated Biologist(s) shall ensure the delineation materials do not create a barrier to wildlife movement and will not pose a risk to wildlife safety.
2.6. Environmentally Sensitive Areas. The Designated Biologist shall determine and clearly delineate any necessary avoidance and/or buffer areas with appropriate fencing, signage, and/or flagging. The delineation materials shall be visibly discernable from the ‘standard work area boundary’ materials and all persons employed or otherwise working on the Project site shall be instructed about the restrictions associated with these environmentally sensitive areas. Permittee shall ensure the delineation materials are monitored daily, and maintained, repaired, or replaced immediately if the materials are damaged, lost, stolen, or become ineffective in any way. The Designated Biologist(s) shall ensure the delineation materials do not create a barrier to wildlife movement and will not pose a risk to wildlife safety.
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2.7. Terrestrial Wildlife Species. To avoid impact to any non-listed terrestrial wildlife species, a Designated Biologist shall inspect the project area prior to any project activities. Any individuals found shall not be harassed and shall be allowed to leave the project area unharmed. If needed, a Designated Biologist may guide, handle, or capture an individual non-listed wildlife species to move it to a nearby safe location within nearby refugium, or it shall be allowed to leave the project site of its own volition. Capture methods may include hand, dip net, lizard lasso, snake tongs and snake hook. If the wildlife species is discovered or is caught in any pits, ditches, or other types of excavations, the Designated Biologist shall release it into the most suitable habitat nearby the site of capture.
2.8. Check for Wildlife in Pipes/Construction Materials. Permittee shall visually inspect all sections of pipe/construction materials for the presence of wildlife sheltering within them prior to the pipe sections being placed in the trench and attached together or shall have the ends capped while stored on site to prevent wildlife from entering. After attaching the pipe sections to one another, whether in the trench or not, the exposed end(s) of the pipeline shall be capped at the end of each day during construction to prevent wildlife from entering and being trapped in the pipeline.
2.9. Excavated Areas. At the end of each workday, Permittee shall, with the oversight of the Designated Biologist(s) or a trained construction management staff, secure any open trench or excavated area within the Project area addressed by this Agreement such that animals are unable to enter and become entrapped. The excavated areas must be secured using appropriate site- and species-specific methods, such as, placing plywood or other barrier materials over the excavated area, placing an escape ramp of suitable material and at an angle no greater than 30 degree at each end of the open trench/excavated area, or installing temporary fencing around the perimeter of trenches or holes.
2.10. Daily Clearance Survey. Before the start of daily project activities, the Designated Biologist or construction monitor should survey the project area to ensure wildlife incidentally trapped due to project activities are allowed to escape.
2.11. Relocation of Stranded Wildlife. If found within the Project site, the Designated Biologist shall capture and move all species authorized by this agreement immediately. Measures shall be taken to avoid harm and mortality resulting from relocation activities.
2.12. Educational Program. Permittee shall conduct an education program (Education Program) for all persons employed or otherwise working on the Project prior to performing any work on site. The Education Program shall consist of a presentation from a Designated Biologist(s) that includes a discussion of the biology of the habitats and species identified in this Agreement and present at the Project site. The Designated Biologist(s) shall also include as part of the Education Program information about the distribution and habitat needs of any protected species that may be present, legal protections for those species, penalties for 341
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violations and Project-specific protective measures included in this Agreement.
Interpretation shall be provided for non-English speaking workers, and the same instruction shall be provided for any new workers prior to their performing work on site. The Permittee shall prepare and distribute wallet-sized cards or a fact sheet that contains this information for workers to carry on site. Upon completion of the Education Program, employees shall sign a form stating they attended the Education Program and understand all protection measures. These forms shall be filed at the worksite offices and be available to CDFW upon request. The Education Program shall be repeated annually for part of the Project extending more than one (1) year. Copies of the Education Program’s materials shall be maintained at the Project site for workers to reference as needed.
2.12.1. Invasive Species Education Program. Permittee shall include an invasive species education program for all persons working on the Project prior to the performing any work on site. The invasive species education program shall consist of a presentation from a Designated Biologist(s) that includes a discussion of the invasive species currently present within the Project site as well as those that may pose a threat to or have the potential to invade the Project site. The discussion shall include a physical description of each species and information regarding their habitat preferences, local and statewide distribution, modes of dispersal, and impacts. The invasive species education program shall also include a discussion of Best Management Practices (BMPs) to be implemented at the Project site to avoid the introduction and spread of invasive species into and out of the Project site.
Nesting Bird Protection
2.13. Nesting Birds. It is the Permittee’s responsibility to avoid impacts to nesting birds.
Permittee shall ensure that impacts to nesting birds are avoided through the implementation of pre-construction surveys, ongoing monitoring, and if necessary, establishment of minimization measures.
2.13.1. Designated Biologist(s). The Permittee shall designate a biologist (Designated Biologist) with the following experience: identifying local and migratory bird species; conducting bird surveys using appropriate survey methodology (e.g., Ralph et al. 19931) and United States Fish and Wildlife Service [USFWS] and/or CDFW-accepted species-specific survey protocols, available here:
https://wildlife.ca.gov/conservation/survey-protocols; nesting surveying techniques, recognizing breeding and nesting behaviors, locating nests and breeding territories, and identifying nesting stages and nest success
1 Ralph, C.J., G.R. Geupel, P. Pyle, T.E. Martin, and D.F. DeSanta. 1993. Handbook of field methods for monitoring land birds. General Technical Report PSW-GTR 144. USDA Forest Service Pacific Southwest Research Station. Albany, CA.
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(e.g., Martin and Geupel 19932); determining/establishing appropriate avoidance and minimization measures; and monitoring the efficacy of implemented avoidance and minimization measures.
2.13.2. Pre-construction Surveys. Surveys shall be conducted by the Designated Biologist at the appropriate time of day/night, during appropriate weather conditions, within three (3) days prior to the initiation of Project activities addressed by this Agreement. Surveys shall encompass all suitable areas including trees, shrubs, bare ground, burrows, cavities, and structures. Survey duration shall take into consideration the size of area subject to this Agreement; density, and complexity of the habitat; number of survey participants; survey techniques employed; and shall be sufficient to ensure the data collected is complete and accurate. Pre-construction surveys shall focus on both direct and indirect evidence of nesting, including nest locations and nesting behavior (e.g., copulation, carrying of food or nest materials, nest building, removal of fecal sacks, flushing suddenly from atypically close range, agitation, aggressive interactions, feigning injury or distraction displays, or other behaviors). If a nest is suspected, but not confirmed, the Designated Biologist shall establish a disturbance-free buffer until additional surveys can be completed, or until the location can be inferred based on observations. The Designated Biologist shall not risk failure of the nest to determine the exact location or status and will make every effort to limit the nest to potential predation as a result of the survey/monitoring efforts (e.g., limit number of surveyors, limit time spent at/near the nest, scan the site for potential nest predators before approaching, immediately depart nest area if indicators of stress or agitation are displayed). If a nest is observed, but thought to be inactive, the Designated Biologist shall monitor the nest for one hour (four hours for raptors during the non-breeding season) prior to approaching the nest to determine status. The Designated Biologist shall use their best professional judgement regarding the monitoring period and whether approaching the nest is appropriate. Results of pre-construction surveys shall be provided to CDFW at least one business day prior to commencement of Project activities, as identified in Measure 4.3.
Results of ongoing monitoring surveys shall be provided to CDFW upon request.
2.13.3. Buffers. When an active nest is confirmed, the Designated Biologist shall immediately establish a conservative buffer surrounding the nest based on their best professional judgement and experience. The buffer shall be delineated to ensure that its location is known by all persons working within the vicinity but shall not be marked in such a manner that it
2 Martin, T.E. and G.R. Geupel. 1993. Nest-monitoring plots: methods for locating nests and monitoring success. Journal of Field Ornithology 64:507-514.
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attracts predators. Once the buffer is established, the Designated Biologist shall document baseline behavior, stage of reproduction, and existing site conditions, including vertical and horizontal distances from proposed work areas, visual or acoustic barriers, and existing level of disturbance. The Designated Biologist shall monitor the nest at the onset of Project activities addressed by this Agreement, and at the onset of any changes in Project activities (e.g., increase in number or type of equipment, change in equipment usage, etc.) to determine the efficacy of the buffer. If the Designated Biologist determines that Project activities may be causing an adverse reaction, the Designated Biologist shall adjust the buffer accordingly.
2.13.4. Ongoing Monitoring. The Designated Biologist shall be onsite daily to monitor all existing nests, the efficacy of established buffers, and to document any new nesting occurrences. The Designated Biologist shall document the status of all existing nests, including the stage of reproduction and the expected fledge date. If a nest is suspected to have been abandoned or failed, the Designated Biologist shall monitor the nest for a minimum of one hour (four hours for raptors), uninterrupted, during favorable field conditions. If no activity is observed during that time, the Designated Biologist may approach the nest to assess the status.
2.13.5. Securing Site. The Permittee, under the direction of the Designated Biologist, may also take steps to discourage nesting on the Project site, including moving equipment and materials daily, covering material with tarps or fabric, and securing all open pipes and construction materials.
The Designated Biologist shall ensure that none of the deterrent materials pose an entanglement risk to birds or other species. The Designated Biologist shall include a detailed account of any steps taken to discourage nesting within the Project site in the summary reports.
2.13.6. Reporting. The Designated Biologist shall be responsible for providing summary reports, as specified in Measure 4.4, where relevant, to CDFW no less than once weekly regarding the nesting species identified onsite, discovery of any of new nests, the status/outcome of any previously identified nest, buffer distances established for each nest, and any adjustments made to established buffers. If Project activities result in the abandonment of, or damage to a nest, Permittee shall notify CDFW within 24 hours of detection.
Least Bell’s Vireo
2.14. Least Bell’s Vireo. The Permittee shall not conduct ANY Project activities, including ground disturbance or vegetation removal activities, within 1,000 linear feet of least Bell’s vireo nesting habitat if nesting birds are present. Focused surveys following USFWS protocol for least Bell’s vireo shall be conducted to 344
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establish presence of nesting birds. The physical extent of the survey area shall include all areas within 500 feet of Project disturbance. Survey results shall be submitted in writing to CDFW for review. Nesting status will be determined by a Designated Biologist (see Measure 2.1.1 above) with expertise with the species in question, utilizing USFWS survey protocols and CDFW review of the nest monitoring data.
2.14.1. Survey protocol for least Bell’s vireo can be found at:
https://www.fws.gov/media/survey-guidelines-least-bells-vireo.
2.14.2. If least Bell’s vireo, or other listed bird species, are present within 500 feet of Project disturbance, the following avoidance measures shall be implemented:
2.14.2.1. No ground disturbance or vegetation removal activities shall take place until the young have fledged, or the nest has been determined to have failed.
2.14.2.2. If construction must take place within the buffer, a qualified acoustician shall monitor noise as construction approaches the edge of the occupied vireo habitat as directed by the permitted biologist.
If the noise meets or exceeds the 60 dB(A) Leq threshold, or if the biologist determines that construction activities are disturbing nesting activities, the biologist shall have the authority to halt construction and shall consult with CDFW to devise methods to reduce the noise and/or disturbance. This may include methods such as, but not limited to, turning off vehicle engines and other equipment whenever possible to reduce noise, installing a protective noise barrier between the nesting birds and the activities, and working in other areas until the young have fledged. The CDFW- approved biologist shall monitor the nest daily until activities are no longer within 500 feet of the nest, or the fledglings become independent of their nest, or the nest has failed.
Coastal California Gnatcatcher
2.15. Coastal California Gnatcatcher. Permittee shall avoid impacts to nesting and/or foraging coastal California gnatcatcher within the riparian scrub of stream areas. If coastal California gnatcatcher are found within 500 feet of Project activities in the stream areas, Permittee shall immediately consult with CDFW for further actions.
Survey protocol for coastal California gnatcatcher can be found at:
http://www.fws.gov/ventura/docs/species/protocols/cagn/coastalgnatcatcher_surve y-guidelines.pdf.
Burrowing Owl Protection
2.16. Burrowing Owl. Permittee shall ensure that impacts to burrowing owls are 345
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avoided through the implementation of pre-construction surveys, ongoing monitoring, and if necessary, establishment of minimization and mitigation measures.
2.16.1. Burrowing Owl Habitat Assessment. Prior to the initiation of Project activities, Permittee shall conduct a burrowing owl habitat assessment consistent with the 2006 Burrowing Owl Survey Instructions3. A habitat assessment shall be conducted by Designated Biologist(s) knowledgeable of burrowing owl sign, habitat, ecology, and field identification of the species, during appropriate weather conditions, at least thirty (30) calendar days prior to the initiation of Project activities. The assessment shall consist of walking the Project site to identify the presence of burrowing owl habitat 4. If habitat is found on the Project site, then walk a 150-meter (approximately 500 feet) buffer zone around the Project boundary, if permission to access the buffer area has been obtained. If access permission cannot be obtained, visually inspect the adjacent habitat areas with binoculars or spotting scopes. Survey duration shall take into consideration the size of the property; density, and complexity of the habitat; number of survey participants; survey techniques employed; and shall be sufficient to ensure the data collected is complete and accurate. A report summarizing the results of the habitat assessment shall be submitted to CDFW within 10 days of survey completion, as described in Measure 4.2.
2.16.2. Focused Survey for Burrowing Owls. If the burrowing owl habitat assessment identifies burrowing owl habitat onsite, Permittee shall have a qualified Designated biologist, pre-approved by CDFW, perform a survey for burrowing owls between 30 and 60 days prior to any Project impacts.
If the Project site is in within the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP) Burrowing Owl Survey Area, the following is required. A minimum of one site visit must occur, but additional visits may be warranted depending on the results of the first site visit. Surveys conducted during the breeding season March 1 - August 31
3 Western Riverside County Multiple Species Habitat Conservation Plan (RCA). 2006. Burrowing Owl Survey Instructions for the Western Riverside Multiple Species Habitat Conservation Plan Area.
Available for download at: https://www.wrc-
rca.org/species/survey_protocols/burrowing_owl_survey_instructions.pdf
4 Burrowing owls use a variety of natural and modified habitats for nesting and foraging that is typically characterized by low-growing vegetation. Burrowing owl habitat includes but is not limited to, short or sparse vegetation (at least at some time of year), presence of burrows, burrow surrogates or presence of fossorial mammal dens, well-drained soils, and abundant and available prey. Vegetation and features may include native and non-native grassland, interstitial grassland with shrub lands, shrub lands with low density shrub cover, golf courses, drainage ditches, earthen berms, unpaved airfields, pastureland, dairies, fallow fields, and agricultural use areas. Burrowing owls typically use burrows made from fossorial (adapted for burrowing or digging) mammals such as ground squirrels or badgers, and often manmade structures such as earthen berms; cement culverts; cement, asphalt, rock, or wood debris piles; or openings beneath cement or asphalt pavement 346
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are required to describe if, when, and how the site is used by burrowing owls. All surveys shall be conducted as described in Parts A and B below.
Surveys shall be conducted during weather that is conducive to observing owls outside their burrows and detecting burrowing owl sign. Surveys will not be accepted if they are conducted during rain, high winds (> 20 mph), dense fog, or temperatures over 90 °F. Part B surveys shall be conducted in the morning one hour before sunrise to two hours after sunrise or in the early evening two hours before sunset to one hour after sunset. Count and map all burrowing owl sightings, occupied burrows, and burrows with owl sign. Record the location of all owls including numbers of pairs and juveniles and any behavior such as courtship and mating. Map the extent of all suitable habitat. Owl signs may not be detectable if surveys under Part A are conducted within 5 days following rain. Absence of burrowing owl sign cannot be used to confirm absence of the species if the focused burrow survey (Part A) is conducted within 5 days of rain; therefore, in this instance, completion of all four focused burrowing owl surveys (Part B) is required.
Part A: Focused Burrow Surveys
A focused burrow survey that includes natural burrows or suitable man- made structures needs to be conducted as described below.
1. A systematic survey for burrows including burrowing owl sign shall be conducted by walking through suitable habitat over the entire survey area (i.e., the Project site and within 150 meters). Pedestrian survey transects need to be spaced to allow 100% visual coverage of the ground surface. The distance between transect center lines should be no more than 30 meters (approximately 100 ft.) and should be reduced to account for differences in terrain, vegetation density, and ground surface visibility. To efficiently survey Projects larger than 100 acres, it is recommended that two or more qualified surveyors conduct concurrent surveys.
2. The location of all suitable burrowing owl habitat, potential owl burrows, burrowing owl signs, and any owls observed shall be recorded and mapped, including GPS coordinates. If the survey area contains natural or man-made structures that could potentially support burrowing owls, or owls are observed during the burrow surveys, the systematic surveys shall continue as described in Part B. If no potential burrows are detected, no further surveys are required. A written report including photographs of the Project site, location of burrowing owl habitat surveyed, location of transects, and burrow survey methods shall be prepared as described in Measure 2.16.1.
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Part B: Focused Burrowing Owl Surveys
Focused Burrowing Owl Surveys shall consist of site visits on four separate days at least one week apart. The first one may be conducted concurrent with the Focused Burrow Survey.
1. Upon arrival at the survey area and prior to initiating the walking surveys, surveyors using binoculars or spotting scopes shall scan all suitable habitat, location of mapped burrows, owl sign, and owls, including perch locations to ascertain owl presence. This is particularly important if access has not been granted for adjacent areas with suitable habitat.
2. A survey for owls and owl sign shall then be conducted by walking through suitable habitat over the entire Project site and within the adjacent 150 m (approx. 500 feet), if permission to access the buffer area has been obtained. These “pedestrian surveys” should be spaced to allow 100% visual coverage of the ground surface. The distance between transect center lines should be no more than 30 meters (approx. 100 feet.) and should be reduced to account for differences in terrain, vegetation density, and ground surface visibility. To efficiently survey projects larger than 100 acres, it is recommended that two or more qualified surveyors conduct concurrent surveys. It is important to minimize disturbance near occupied burrows during all seasons.
3. If access is not obtained, then the area adjacent to the Project site shall also be surveyed using binoculars or spotting scopes to determine if owls are present in areas adjacent to Project site. This 150-meter buffer zone is included to fully characterize the population. If the site is determined not to be occupied, no further surveys are required except as described below.
2.16.3. Burrowing Owl Pre-Construction Inspection. If burrows or suitable burrowing owl habitat is found onsite, Permittee shall have a qualified biologist, pre-approved by CDFW, inspect all burrows that exhibit typical characteristics of owl activity within three (3) days prior to any ground disturbing or site-preparation activities. Evidence of owl activity may include presence of owls themselves, burrows, and owl signs at burrow entrances such as pellets, whitewash or other “ornamentation,” feathers, prey remains, etc. If owl presence is difficult to determine, Permittee shall monitor the burrows with motion-activated trail cameras for at least 24 hours to evaluate burrow occupancy. If it is evident that the burrows are actively being used, Permittee shall not commence activities until no sign is present that the burrows are being used by adult or juvenile owls or following CDFW approval of a Burrowing Owl Plan as described in Measure 2.16.6. CDFW shall be notified in writing of detection of active burrows within three (3) days.
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2.16.4. Burrowing Owl Survey Results. Permittee shall submit the survey methodology and results within ten days of survey completion and at least twenty-one days prior to commencement of Project activities addressed by this Agreement to CDFW Inland Deserts Region at the address below under Contact Information. Results shall discuss the survey methodology, transect width, duration, conditions, and results of the survey. Appropriate maps showing burrow locations shall be included.
If the report indicates further surveys are not required, then the report should state the reason(s) why further focused burrowing owl surveys are not necessary.
2.16.5. Burrowing Owls Observed During Construction. If burrowing owls are observed within Project Site(s) during Project implementation and construction, Permittee shall notify CDFW immediately in writing at the address below under Contact Information (reference SAA# EPIMS-RIV- 38704-R6). Further, Permittee shall be responsible for implementing appropriate avoidance and mitigation measures, including burrow avoidance, passive or active relocation, or other appropriate mitigation measures as identified in the Burrowing Owl Plan (Measure 2.16.6).
2.16.6. Burrowing Owl Plan. If burrowing owls are detected on the Project site, the Permittee shall prepare a Burrowing Owl Plan that shall be submitted to CDFW for review and approval at least 30 days prior to initiation of Project activities. If burrowing owls are detected after Project activities have been initiated, a Burrowing Owl Plan shall be submitted to CDFW for review and approval within two weeks of detection and no Project activity shall continue within 300 -1000 feet dependent upon burrowing owl nesting status and location. The Burrowing Owl Plan shall describe proposed avoidance, relocation, monitoring, minimization, and/or mitigation actions.
If the site is within an MSHCP Criteria Area, then at least 90 percent of the area with long-term conservation value shall be included in the MSHCP Conservation Area. If the Project site (including adjacent areas) supports three or more pairs of burrowing owls and supports greater than 35 acres of suitable habitat and is non-contiguous with MSHCP Conservation Area lands, at least 90 percent of the area with long-term conservation value and burrowing owl pairs shall be conserved onsite. The Burrowing Owl Plan shall include the number and location of occupied burrow sites and details on proposed buffers if avoiding the burrowing owls or information on the adjacent or nearby suitable habitat available to owls for relocation.
If no suitable habitat is available nearby for relocation, details regarding the creation and funding of artificial burrows (numbers, location, and type of burrows) and management activities for relocated owls shall also be included in the Burrowing Owl Plan. The Permittee shall implement the Burrowing Owl Plan following CDFW review and approval.
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Crotch’s Bumble Bee
2.17. Crotch’s Bumble Bee – Habitat Mapping. No less than 120 days prior to the initiation of activities addressed by this Agreement, Permittee shall complete and submit to CDFW for review and comment a baseline habitat mapping report encompassing Fish and Game Code section 1602 resources (including channel side slopes) identified under this Agreement. Mapping will identify habitat alliances following Sawyer et al. (2009[1]) and the report will identify species composition for each mapped alliance. Results of the habitat mapping effort shall be submitted to CDFW as specified in Measure 4.5.
2.18. Crotch’s Bumble Bee – Surveys. If habitat mapping completed pursuant to Measure 2.17 identifies the presence of plants (e.g., genera Antirrhinum, Phacelia, Clarkia, Cordylanthus, Dendromecon, Eschscholzia, Eriogonum, Hypericum, Lantana, Lupinus, Salvia, Asclepias, Cirsium, Monardella, Keckiella, Acmispon, Euthamia, Ehrendorferia, Vicia, and/or Trichostema) or other suitable habitat, Permittee shall:
2.18.1. Retain an appropriately qualified biologist to prepare a draft survey plan, and conduct surveys for Crotch bumble bee. The name and qualifications of the proposed biologist shall be submitted to CDFW for review and comment prior to preparation of the draft survey plan (Measure 2.18.2) or commencement of surveys (Measure 2.18.3). The qualifications shall clearly identify direct experience conducting surveys for and identification of Crotch bumble bee.
2.18.2. No Less than 90 days prior to initiation of Project activities addressed by this Agreement, the qualified biologist identified in Measure 2.18.1 shall prepare and submit to CDFW for review and comment a draft survey plan for Crotch bumble bee. Survey methodology shall generally follow the U.S. Fish and Wildlife Service protocol for the Rusty Patched bumble bee (USFWS 2019[2]). Crotch bumble bee are typically active between March and September, with peak activity coinciding with peak forage blooming periods. CDFW recommends the completion of multiple surveys, coinciding with the peak blooming periods of the plant genera listed in Measure 2.11. The survey plan will identify the timing, number, and duration of survey efforts, and procedures to follow should Crotch bumble bee be detected within the Project area. The survey plan shall be submitted to CDFW as described in Measure 4.6.
2.18.3. The qualified biologist identified in Measure 2.18.1 shall complete surveys for Crotch bumble bee, following the CDFW-reviewed survey plan identified in Measure 2.18.2. Following completion of surveys, and no less than 30 days prior to initiation of Project activities addressed by this Agreement, survey results shall be submitted to CDFW for review and comment as described in Measure 4.7. Survey results will describe the 350
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number and timing of surveys, and results of survey efforts. If Crotch bumble bee are detected during surveys, Project activities shall NOT occur in any occupied habitat areas and the qualified biologist identified in Measure 2.18.1 shall immediately notify CDFW via the email addresses and phone number listed below under Contact Information.
2.18.4. Permittee shall conduct flight/forage and nest search surveys for the species in the following manner:
2.18.4.1. Surveys shall be conducted during the appropriate season, between February 1 and October 31.
2.18.4.2. Work sites containing any one or more of the following habitat requisites shall be surveyed: flowering vegetation, any potential preferred nectar plants, small mammal burrows, bunch grasses, thatch, brush piles, old bird nests, dead trees.
2.18.4.3. During the flight survey effort, if bumble bees are observed using any animal burrow entrances, the approved qualified biologist will block/cover any burrow entrance with a sandbag/jar/vial (or similar) of appropriate size and return in 30 minutes to determine if the bees are potential Crotch bumble bee and if a potential nest could be present. If bumble bees are observed using bunch grasses, thatched annual grasses, brush piles, old bird nests, dead trees, or hollowed logs, the resource area will be flagged and monitored by the approved qualified biologist for 15 minutes to determine if a potential nest could be present.
2.18.5. To reduce potential impacts to Crotch bumble bee to the greatest extent feasible the following measures shall be included in the Crotch bumble bee survey plan:
2.18.5.1. If during vegetation removal and ground clearing activities an overwintering or dead Crotch bumble bee is observed, activities shall immediately stop and a 100 ft Environmentally Sensitive Area boundary will be erected. A Crotch bumble bee approved qualified biologist will be notified and will evaluate the site. CDFW will be immediately notified thereafter for consultation.
Best Management Practices
2.19. Best Management Practices. Permittee shall actively implement BMPs to prevent erosion and the discharge of sediment and pollutants during Project activities. BMPs shall be monitored and repaired if necessary to ensure maximum erosion, sediment, and pollution control. Permittee shall prohibit the 351
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use of erosion control materials potentially harmful to fish and wildlife species, such as mono-filament netting (erosion control matting) or similar material. All fiber rolls, straw wattles, and/or hay bales utilized within and adjacent to the Project site shall be free of non- native plant materials. Fiber rolls or erosion control mesh shall be made of loose- weave mesh that is not fused at the intersections of the weave, such as jute, or coconut (coir) fiber, or other products without welded weaves. Non-welded weaves reduce entanglement risks to wildlife by allowing animals to push through the weave, which expands when spread. Permittee shall ensure BMPs do not pose a barrier to wildlife movement and shall be installed to allow for the safe passage of wildlife movement, particularly of less vagile species (such as small mammals and reptiles), out of the Project area. Long, continuous lengths of silt-fencing or other BMP materials installed without gaps can create a barrier to wildlife movement, trapping wildlife within the Project area. Areas of safe passage can be easily accommodated by leaving small gaps between parallel and overlapping lengths of BMPs.
2.20. If work is performed within the stream channel during the winter storm period, the Permittee shall monitor the five (5) day weather forecast. If it is forecasted for any precipitation, work activities shall involve the securing of the site, so as no materials may enter or be washed into the stream. The site shall be completely secured one (1) day prior to precipitation, unless prior written approval has been provided by CDFW. During period of precipitation, no construction activities may occur; activities involving the preventing of materials from entering the stream or being washed downstream may be conducted.
Equipment and Vehicles
2.21. Equipment and Vehicles. Any equipment or vehicles driven and/or operated within or adjacent to the stream/lake shall be checked and maintained daily, to prevent leaks of materials that if introduced to water could be deleterious to aquatic life.
2.22. Stationary Equipment. Stationary equipment such as motors, pumps, generators, and welders, located within or adjacent to the stream/lake shall be positioned over drip pans. Stationary heavy equipment shall have suitable containment to handle a catastrophic spill/leak. Clean up equipment such as extra booms, absorbent pads, skimmers, shall be on site prior to the start of construction.
2.23. Staging and Storage Areas. Staging/storage areas for equipment and materials shall be located outside of the stream/lake. Any materials placed in seasonally dry portions of a stream or lake that could be washed downstream or could be deleterious to aquatic life shall be removed from the Project site prior to inundation by high flows.
2.24. Equipment Maintenance. No equipment maintenance shall be done within or 352
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near any stream, channel, or lake margin where petroleum products or other pollutants from the equipment may enter these areas under any flow.
Trash and Pollution Measures
2.25. Trash Abatement and Refuse Removal. Permittee shall ensure that trash and food items are contained in animal-proof containers and removed at the end of each work day to avoid attracting opportunistic predators such as ravens, coyotes, and feral dogs. Upon completion of Project activities within each Project location, Permittee shall remove and properly dispose of all construction refuse, including, but not limited to, broken equipment parts, wrapping material, cords, cables, wire, rope, strapping, twine, buckets, metal or plastic containers, and boxes.
2.26. Pollution and Litter. Permittee shall comply with all litter and pollution laws. All contractors, subcontractors, and employees shall also obey these laws and it shall be the responsibility of Permittee to ensure compliance.
2.26.1. Spoil sites shall not be located within a lake, streambed, or flowing stream or locations that may be subjected to high storm flows, where spoil may be washed back into a lake, streambed, or flowing stream where it may impact streambed habitat and aquatic or riparian vegetation.
2.26.2. No broken concrete, cement, debris, soil, silt, sand, bark, slash, sawdust, rubbish, or washings thereof, oil or petroleum products, or other organic or earthen material from any construction or associated activity of whatever nature shall be allowed to enter into or be placed where it may be washed by rainfall or runoff into waters of the State. When operations are completed, any excess materials or debris shall be removed from the work area. No rubbish shall be deposited within 150 feet of the high water mark of any lake, streambed, or flowing stream.
2.26.3. No equipment maintenance shall be done within or near any lake, streambed, or flowing stream where petroleum products or other pollutants from the equipment may enter these areas under any flow.
2.28 Turbidity and Siltation. All equipment that enters the streambed or habitat associated with the stream shall be clean and dry. Upon CDFW determination that turbidity/siltation levels resulting from Project-related activities constitute a threat to aquatic life, activities associated with the turbidity/siltation shall be halted until effective CDFW approved control devices are installed, or abatement procedures are initiated.
2.29 Spill Containment. All activities performed in or near a stream shall have absorbent materials designated for spill containment and cleanup activities on-site for use in an accidental spill. If a spill occurs the Permittee shall immediately notify the 353
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California Emergency Management Agency at 1-800-852-7550 and immediately initiate the cleanup activities. CDFW shall also be notified within 24 hours by the Permittee and consulted regarding clean-up procedures.
2.30 Disposal of Vegetation. Following any vegetation clearing/removal activities, Permittee shall immediately chip woody debris to pieces 1-inch in diameter or less and dispose of the materials using one of the following methods: a) solarize with clear tarp, b) compost at a commercial facility, c) burn at a biogeneration facility, or d) send to a landfill (can be utilized as Alternative Daily Coverage). Plant material infested with polyphagous shot hole borer will follow handling procedures found at http://eskalenlab.ucr.edu/handouts/decisionmaking.pdf .
Invasive Species
2.31 Prohibited Plant Species. Permittee shall not plant, seed or otherwise introduce invasive exotic plant species. Prohibited exotic plant species include those identified in the California Exotic Pest Plant Council's database, which is accessible at: https://www.cal-ipc.org/plants/inventory/.
2.32 Clean Equipment Prior to Entering Area Regulated by Agreement. To prevent the spread of invasive aquatics and diseases and prevent deleterious materials entering the stream, equipment to be used in watercourses, including, but not limited to boots, waders, hand tools, and nets must be decontaminated according to the most current version available of CDFW Aquatic Invasive Species Decontamination Protocols5. All equipment shall be free of materials deleterious to aquatic life including noxious and nuisance weeds, aquatic invasive species, oil, grease, hydraulic fluid, soil, and other debris. The Permittee shall follow equipment washing guidelines (see Measures 2.33 to 2.38 below).
2.33 Clean and Inspect Equipment Prior to Entering Stream. Prior to working within the stream, all equipment shall be closely examined for all visible soil/mud, plant materials, animal remnants, and oil and fuel discharges. Any contaminants shall be cleaned prior to any work within a streambed and shall be maintained daily. In addition, equipment shall be cleaned daily to ensure pollutants and non-natives are not introduced into mitigation areas or spread throughout Project sites.
2.34 Inspection of Project Equipment. Permittee shall inspect all vehicles, tools, waders and boots, and other Project-related equipment and remove all visible soil/mud, plant materials, and animal remnants prior to initially entering areas regulated by this Agreement.
2.35 Decontamination of Project Equipment. Permittee shall decontaminate all tools, waders and boots, vehicles, trailers, and other equipment that will be used in areas regulated by this Agreement and make contact with water or wetted soils prior to initially entering and upon reentering with verification that subsequent
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decontamination is required with the following specific guidance: Permittee shall decontaminate Project gear and equipment utilizing one of three methods:
drying, using a hot water soak, or freezing, as appropriate to the type of gear or equipment. For all methods, Permittee shall begin the decontamination process by thoroughly scrubbing equipment, paying close attention to hard to reach areas and clean areas with a stiff-bristled brush to remove all plant, seeds, soil, and other organisms. To decontaminate by drying, Permittee shall allow equipment to dry thoroughly (i.e., until there is a complete absence of water and all plant, seeds, and soil), preferably in the sun, for a minimum of 48 hours. To decontaminate using a hot water soak, Permittee shall immerse equipment in 140°F or hotter water and soak for a minimum of 5 minutes. To decontaminate by freezing, Permittee shall place equipment in a freezer 32°F or colder for a minimum of 8 hours. Repeat decontamination is required only if the equipment/clothing is removed from the site, used in contact with water or wet soil within a different watershed, and returned to the Project site.
2.36 Decontamination of Vehicles and Equipment. Permittee shall decontaminate vehicles and other Project-related equipment too large to immerse in a hot water bath by pressure washing with hot water a minimum of 140°F at the point of contact or 155°F at the nozzle. Additionally, Permittee shall flush watercraft engines and all areas that could contain standing water (e.g., storage compartments) for a minimum of 10 minutes. Following the hot water wash, Permittee shall dry all vehicles, watercraft, and other large equipment as thoroughly as possible. Repeat decontamination is required only if vehicles and/or equipment is removed from the site and used in contact with water or wet soil within a different watershed and returned to the Project site.
2.37 Decontamination Sites. Permittee shall perform decontamination of vehicles, watercraft, and other Project gear and equipment in a designated location where runoff can be contained and not allowed to pass into any river, lake, or stream and associated riparian areas and other sensitive habitat areas. Cleaning of equipment may occur at a location that contains and recycles resulting wastewater.
2.38 Other Project Equipment. Permittee or designee shall require operators of equipment to re-certify equipment upon reentry to areas regulated by this Agreement. Permittee shall require operators of equipment subject to recertification that are reentering after contact with water and/or wet soil from a stream or lake in areas outside those regulated under this Agreement to follow equipment washing guidelines (see measures above).
2.39 Notification of Invasive Species. Permittee shall notify CDFW immediately if an invasive species not previously known to occur within the Project site is discovered during Project activities by submitting a completed Suspect Invasive Species Report (available online at:
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Species Program by email at: [email protected]. Notification may also be provided by calling (866) 440- 9530. Upon receiving notification, CDFW will provide Permittee with guidance for further action as appropriate to the species.
Work Design
2.40 Work According to Plans. Final stamped engineered design plans shall be submitted to CDFW a minimum of 30 days prior to start of Project activities, for review by CDFW prior to Project start. The final plans shall be based on the Project design plans submitted to CDFW in the notification package. If the submitted Project plans differ substantially from the Project description, CDFW may require an amendment to this Agreement or submission of a new notification prior to starting the Project.
3. Compensatory Measures
To compensate for adverse impacts to fish and wildlife resources identified above that cannot be avoided or minimized, Permittee shall implement each measure listed below.
3.1 Habitat Restoration – On-site (On-site Temporary Restoration). To compensate for the temporary impacts of 0.31 acres of fish and wildlife resources subject to Fish and Game Code section 1600 et seq., Permittee shall restore no less than 0.31 acres of in-kind streambed and associated habitat.
3.1.1 Restoration of Temporary Impacts. Upon completion of construction activities, Permittee shall restore all temporary impacts to pre-project conditions or better. Restoration activities should include, but not be limited to: contouring the ground surface to pre-impact grade; removing all construction related materials, trash, and debris; and replacing any natural materials/refugia moved during Project activities. Photo documentation and reporting of restoration efforts will be included in the Project Completion Report (Measure 4.9).
3.1.2 Habitat Mitigation and Monitoring Plan (HMMP; Temporary Impacts). The Permittee shall develop and submit to CDFW within 4 months of starting Project activities a Habitat Mitigation and Monitoring Plan (HMMP), prepared by a biologist familiar with restoration of native plants. This plan shall include and is not limited to 1) plantings of both overstory and understory vegetation as, 2) a list of tree species being removed from the Project site, 3) return of impacted areas to original contours, 4) a hydroseed mix appropriate to wetland and riparian vegetation within the project area, consisting entirely of seeds of native species. These areas will be monitored for 5 years or until success criteria is met (Measure 3.1.2.7). The plan shall also include a description of the proposed numbers, container sizes, and planting location, by species, the proposed monitoring activities (e.g., locations, techniques, scheduling), maintenance operations with particular emphasis on watering methods and schedules; and any/all other references to revegetation and 356
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restoration activities specified by this Agreement. The primary monitoring surveys shall be conducted in Spring and Fall, and an annual quantitative survey shall be performed to determine the success of restoration efforts (survival, cover, and growth of plants).
3.1.2.1 Habitat Restoration Manager. Permittee shall identify a proposed Habitat Restoration manager. The Habitat Restoration manager may be the landowner or another party. Documents related to habitat restoration management shall identify both the Habitat Restoration Manager. Permittee shall notify CDFW of any subsequent changes in the Habitat Restoration manager within 30 days of the change.
3.1.2.2 Restoration Specialist. The HMMP shall be prepared by persons with expertise in southern California ecosystems and native plant re-vegetation techniques (restoration specialist). Planting, maintenance, monitoring, and reporting activities shall be overseen by the restoration specialist familiar with restoration of native plants.
3.1.2.3 Site Description. A description of the physical conditions and vegetation communities including a map and GIS shapefiles.
Photo-documentation of restored areas shall be provided before and after restoration.
3.1.2.4 Native Plant Sources. Plant material for revegetation shall be derived from cuttings, materials salvaged from disturbed areas, and/or seeds obtained from randomly selected native trees and shrubs occurring locally within the same drainages. Any replacement tree/shrub stock, if used, which cannot be grown from cuttings or seeds, shall be obtained from a native plant nursery, be ant-free, and shall not be inoculated to prevent heart rot.
3.1.2.5 Maintenance Activities. A description of maintenance operations with particular emphasis on invasive species control and watering methods and schedules; details on any irrigation to be used, if applicable, that includes method of watering; sprinkler placement, if applicable; and timing/schedule; irrigation may only be used to help the plants become established during the first three years following planting. Watering/ irrigation of the site shall be discontinued at least two years prior to completion of the monitoring period.
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when restoration measures do not meet the proposed targets.
3.1.2.7 Success Criteria. The HMMP shall identify the success criteria for the habitat restoration site. The reference site shall be approved by CDFW. The success criteria shall include percent relative and absolute cover (invasive and native vegetation), species diversity, abundance, and any other measures of success deemed
appropriate by CDFW. Permittee shall be responsible for any cost incurred during the restoration/mitigation or in subsequent corrective measures.
3.1.3 Mitigation Success. After the fifth monitoring year, if the site has met the success criteria outlined in the HMMP, CDFW may request a site visit to determine if the mitigation portion of the Agreement is deemed complete.
The site should be free of trash and any irrigation infrastructure shall be removed if it was used (unless there is an acceptable justification for leaving the irrigation system in place).
3.1.4 Contingency Measures. If the survival and cover requirements have not been met as established in the HMMP (Refer to Measure 3.1.1 above), the Permittee shall follow contingency measures, including but not limited to, performing modifications to the existing habitat, creation of new habitat on or offsite, or purchase of mitigation credits from a mitigation bank. Any contingency actions will be determined in coordination with CDFW. If Permittee proposes to meet the success criteria through modifications to the existing habitat or creation of additional habitat, Permittee shall be responsible for maintaining and monitoring these areas with the same survival and growth requirements for five years after planting, or until CDFW deems the sites successful.
3.2 Option 1: Habitat Re-establishment/Rehabilitation – Offsite (Mitigation Bank).
Permittee shall compensate for the 0.08 acres of permanent impacts to stream bed, bank, and channel, through the acquisition of no less than 0.08 acre of streambed or riparian habitat re-establishment and 0.08 acre of rehabilitation credits through a CDFW-approved mitigation bank within Western Riverside County. Written CDFW approval of the mitigation bank is required prior to purchase of credits. Mitigation credits shall be purchased, and receipt provided to CDFW, at least 30 days prior to the initiation of Project activities or within 12 months following start of Project activities if Security is provided, which includes staging and site preparation, unless security is provided pursuant to Measure 3.4. If mitigation credits are not available for purchase within 10 months following start of Project activities, then Measure 3.4 shall be implemented instead of the purchase of mitigation credits and shall be completed within 18 months following start of Project activities if Security is provided. Alternate banks, credit types, and/or credit amounts necessary to meet the mitigation obligation 358
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must be proposed for CDFW review and approval within 10 months following start of Project activities and purchased within 30 days of CDFW’s approval.
3.3 Option 2: Habitat Rehabilitation and/or Restoration – Offsite (Mitigation Site).
Permittee shall compensate for permanent impacts of 0.08 acres to stream bed, bank, and channel, through the acquisition, rehabilitation and/or restoration, and perpetual conservation and management of a “Mitigation Site”, or several mitigation sites, containing no less than 0.16 acres of streambed and stream- associated habitat within Western Riverside County.
The Permittee shall implement the Habitat Mitigation and Monitoring Plan (HMMP; Measure 3.3.5) to be reviewed and approved by CDFW; and a Long-Term Management Plan (LTMP; Measure 3.3.6) designed to sustain or surpass the habitat quality of the Mitigation Site in perpetuity. Permittee shall also establish long-term management funding (Measure 3.3.7 through 3.3.12). Permanent protection and funding for perpetual management of Habitat Management lands must be complete prior to initiation of Project activities, or within 18 months of starting Project activities if Security is provided pursuant to Measure 3.4 below for all uncompleted obligations.
3.3.1 Habitat Acquisition and Protection. Permittee shall obtain written approval from CDFW for the proposed Mitigation Site(s) with a minimum of 0.16 acres of offsite streambed and stream-associated habitat. Permittee shall submit a proposed Mitigation Site, including pertinent biological resources information and a preliminary title report, for CDFW review and approval no later than five months prior to the start of Project activities OR four months following start of Project activities if Security is provided.
3.3.2 Mitigation Site Conservation Easement. After CDFW approval of the Mitigation Site (Measure 3.3.1) and no later than four months prior to the start of Project activities OR six months following start of Project activities if Security is provided. Permittee shall provide to CDFW, for review and approval, a draft Conservation Easement (CE) prepared using a CDFW-provided CE template, a preliminary title report, and a Phase I environmental assessment. Permittee shall also provide the necessary documents specified in the CDFW Habitat Management Land Acquisition Package Checklist for Third Party Beneficiary (TPB) Project Applicants or a revised version to be provided by CDFW, in preparation for conservation easement(s) recordation. All documents conveying the Mitigation Site(s) and all conditions of title are subject to the review and approval of CDFW prior to recordation of the CE. Permittee shall ensure the preservation and long-term management of the CDFW-approved 0.16 acres of streambed and stream-associated habitat within the Mitigation Site(s) through recordation of a conservation easement(s). Permittee shall record a CE approved by CDFW with an entity, to be approved by CDFW in its sole discretion, acting as grantee for the CE. Permittee shall also provide the 359
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necessary documents requested by CDFW for due diligence review at the time the grantee is proposed. CDFW shall be expressly named in the CE as a third-party beneficiary. The CE shall expressly require implementation of the LTMP by the grantor, and land manager, as authorized by the grantor and landowner, and shall expressly require the grantee to monitor implementation of the LTMP. Permittee shall record the CE after CDFW approval of the CE and all associated documents prior to the start of Project activities OR within 18 months following start of Project activities if Security is provided. Permittee shall be responsible for all costs associated with the CE, including recording, CE monitoring, and long- term management costs.
3.3.3 Mitigation Site Land Manager. After CDFW approval of the Mitigation Site (Measure 3.3.1) and no later than four months prior to the start of Project activities OR six months following start of Project activities if Security is provided, Permittee shall obtain CDFW approval of a land manager entity to manage the Mitigation Site. Permittee shall identify separate entities to fulfill the grantee and land manager roles and shall not identify the same entity to fulfill both roles. Permittee shall also provide the necessary documents requested by CDFW for due diligence review at the time the land manager is proposed. Permittee shall also obtain CDFW approval of an interim Mitigation Site land manager if they are different than the long-term Mitigation site manager. The interim and/or long-term land managers may be the landowner or another party approved by CDFW.
Documents related to land management shall identify both the interim and long-term land managers. Permittee shall notify CDFW, for review and approval, of any subsequent changes in the land manager within 30 days of the change.
3.3.4 Start-Up Activities. Permittee shall provide for the implementation of start- up activities, including the initial site protection of the CDFW-approved Mitigation Site(s). Start-up activities include, at a minimum: 1) preparing both a HMMP (Measure 3.3.5) and a LTMP (Measure 3.3.6) for CDFW approval, 2) conducting baseline biological assessment and land survey report during the first growing season, 3) developing and transferring to the Geographic Information Systems (GIS) data if applicable, 4) establishing initial fencing (if necessary), 5) conducting initial removal of litter and debris, and 6) installing signage.
3.3.5 Habitat Mitigation and Monitoring Plan. After CDFW approval of the Mitigation Site (Measure 3.3.1) and no later than four months prior to the start of Project activities OR six months following start of Project activities if Security is provided, Permittee shall submit to CDFW for review and written approval a Habitat Mitigation and Monitoring Plan 360
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(HMMP). At a minimum, the HMMP shall include the following:
3.3.5.1 Restoration Specialist. Preparation of the HMMP shall be by persons with expertise in southern California ecosystems and native plant re-vegetation techniques (restoration specialist).
Planting, maintenance, monitoring, and reporting activities shall be overseen by the restoration specialist familiar with restoration of native plants.
3.3.5.2 Site Description. A description of the physical conditions and vegetation communities including a map and GIS shapefiles.
Photo-documentation of restored areas shall be provided before and after restoration.
3.3.5.3 Planting Plan. Details of the site preparation consisting of a detailed contouring/grading plan and details of native plant installation (Planting Plan), including the type and number of materials to be used (e.g., local native seeds, cutting, and/or container stock), source(s) of the materials, planting location, methods of installation, and a local California native plant palette.
This Planting Plan shall include plantings of both overstory and understory vegetation as appropriate. All seeded/planted species installed shall include only local California native container plants and cuttings and shall be typical of the existing native plant species present within, or immediately adjacent to the site. The Planting Plan shall have adequate detail regarding the sampling plan so that it can be duplicated by different people and shall include a sample data collection sheet that shows appropriate data to be collected per the proposed sampling methodology.
3.3.5.4 Native Plant Sources. Plant material for revegetation shall be derived from cuttings, materials salvaged from disturbed areas, and/or seeds obtained from randomly selected native trees and shrubs occurring locally within the same drainages. Any replacement tree/shrub stock, if used, which cannot be grown from cuttings or seeds, shall be obtained from a native plant nursery, be ant-free, and shall not be inoculated to prevent heart rot.
3.3.5.5 Sampling Techniques. The sampling techniques (e.g., quadrats, transects, or relevé ) to be used to collect quantitative/qualitative data (e.g., vegetation relative/absolute cover, density, diversity indices, recruitment, survivorship, etc.) for baseline conditions and to establish and measure success criteria.
3.3.5.6 Survey Timing. The primary monitoring surveys to determine the success of restoration efforts (survival, cover, and growth of 361
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plants) shall be conducted at a minimum twice annually, preferably in May and September.
3.3.5.7 Maintenance Activities. A description of maintenance operations with particular emphasis on invasive species control and watering methods and schedules; details on any irrigation to be used, if applicable, that includes method of watering; sprinkler placement, if applicable; and timing/schedule; irrigation may only be used to help the plants become established during the first three years following planting. Watering/ irrigation of the site shall be discontinued at least two years prior to completion of the monitoring period.
3.3.5.8 Corrective Actions: A description of corrective actions to be taken when restoration measures do not meet the proposed targets.
3.3.5.9 Success Criteria. The HMMP shall identify the success criteria for the Mitigation Site and shall be compared against an appropriate reference site with as good or better-quality habitat then the pre- Project impact site. The reference site shall be approved by CDFW. The success criteria shall include percent relative and absolute cover (invasive and native vegetation), species diversity, abundance, and any other measures of success deemed
appropriate by CDFW. Permittee shall be responsible for any cost incurred during the restoration/mitigation or in subsequent corrective measures.
3.3.5.10 Reporting. Permittee shall have the qualified restoration specialist monitor the recovery of plant, wildlife, and aquatic resources in the area following mitigation implementation. Monitoring of plant, wildlife, and aquatic resources shall be done twice a year as outlined in the HMMP, through the term of restoration. The results and analysis shall be submitted with the annual restoration monitoring report to CDFW by February 1 of each year after mitigation implementation for at least 5 years and until mitigation success criteria have been met. This report shall include the status and any success trends (i.e., comparison throughout the 5 years of monitoring) for the success criteria outlined in the HMMP.
Photos from designated photo stations shall be included.
3.3.5.11 Mitigation Success. After the fifth monitoring year, if the site has met the success criteria outlined in the HMMP, CDFW may request a site visit to determine if the mitigation portion of the Agreement is deemed complete. The site should be free of trash and any irrigation infrastructure shall be removed if it was used.
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3.3.6 Mitigation Site Long Term Management Plan. After CDFW approval of the mitigation Site (Measure 3.3.1) and no later than three months prior to the start of Project activities OR seven months following start of Project activities if Security is provided, Permittee shall provide a Long-Term Management Plan (LTMP) to CDFW for review and written approval. The LTMP be implemented in perpetuity and shall be designed to sustain or surpass the habitat quality of the Mitigation Site(s) upon achieving HMMP success criteria as approved by CDFW in writing. At a minimum, the LTMP shall identify: 1) a description of the physical conditions of the Mitigation Site upon achieving HMMP success criteria, including water resources and habitat types, and a map that identifies the location of the site; 2) goals related to sustaining habitat quality, wildlife usage, and overall function of the Mitigation Site; and 3) specific tasks and management strategies proposed to meet those goals, including but not limited to fencing, invasive species management, trash and trespass control, and resource monitoring using a monitoring and management schedule, adaptive management plans, strategies to address foreseeable site disturbances (e.g., dumping, wildfires, unauthorized recreational activities, etc.), and maintenance of signage and fencing. Permittee shall consult with CDFW for LTMP requirements and for an appropriate LTMP template prior to preparing the draft LTMP. The Permittee shall be responsible for implementing the LTMP and shall submit a Management Report every five years documenting, at a minimum: 1) management activities completed within the previous five-year term, including: (a) any remedial measures completed, (b) details of invasive species management including: (i) species and location where they were treated and/or removed, (ii) the amount and frequency of removal, and (iii) the techniques used, (c) fencing information (d) resource monitoring, adaptive management strategies developed and how they were implemented, and (d) enforcement activity necessary; 2) an assessment of overall habitat quality within the Mitigation Site, including: (a) any changes to native and non- native vegetation cover, (b) any shifts in habitat type, (c) any loss of habitat cover, (d) any change in water resources, and (e) any new invasive species observed; and 3) an evaluation of the success or failure of management strategies implemented and any changes to management strategies proposed in response to the successes or failures. The Management Report shall include photos documenting the management activities.
3.3.7 Mitigation Site Endowment Fund. Permittee shall ensure that the Mitigation Site is perpetually managed, maintained, and monitored by the land manager as described in this Agreement, the CE, and the LTMP approved by CDFW. After obtaining CDFW approval of the Mitigation Site, Permittee shall provide long-term management funding for the perpetual management of the Mitigation Site by establishing a separate long-term management fund (Endowment) for the site. The Endowment is a sum of money, held in a 363
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CDFW-approved fund that provides funds for the perpetual management, invasive species control (as needed), monitoring, and other activities on the Mitigation Site consistent with the management plan(s) required by Measure
3.3.5. Endowment as used in this Agreement shall refer to the endowment deposit and all interest, dividends, other earnings, additions, and appreciation thereon. The Endowment shall be governed by this Agreement, Government Code sections 65965-65968, as amended, and Probate Code sections 18501-18510, as amended.
After the interim management period, Permittee shall ensure that the designated long-term land manager implements the management and monitoring of the Mitigation Site according to LTMP. The long-term land manager shall be obligated to manage and monitor the Mitigation Site in perpetuity to preserve their conservation values in accordance with this Agreement, the CE, and the LTMP. Such activities shall be funded through the Endowment.
3.3.8 Identify an Endowment Manager. The Endowment shall be held by the Endowment Manager, which shall be an entity qualified pursuant to Government Code sections 65965-65968, as amended, and approved in writing by CDFW in its sole discretion. Permittee shall submit to CDFW a written proposal for an Endowment Manager along with a copy of the proposed Endowment Manager’s certification pursuant to Government Code section 65968(e). CDFW shall notify Permittee in writing of its approval or disapproval of the proposed Endowment Manager. If CDFW does not approve the proposed Endowment Manager, it shall provide Permittee with a written explanation of the reasons for its disapproval.
3.3.9 Endowment Funds Deposit. After obtaining CDFW written approval of the Mitigation Sites, LTMP, and Endowment Manager, Permittee shall prepare in coordination with the land manager, a Long-Term Management Endowment PAR (or PAR-equivalent analysis) to calculate the amount of funding necessary to ensure the long-term management of the Mitigation Site (Endowment Deposit Amount) consistent with the LTMP and to fund the grantee for CE monitoring. The Permittee shall submit to CDFW for review and approval the results of the Long-Term Management Endowment PAR before transferring funds to the Endowment Manager and no later than three months prior to the start of Project activities OR seven months following start of Project activities if Security is provided.
3.3.10 Capitalization Rate and Fees. Permittee shall obtain the capitalization rate from the selected Endowment Manager for use in calculating the Long-Term Management Endowment PAR and adjust for any additional administrative, periodic, or annual fee. The capitalization rate used to calculate the PAR shall be 3.5% or less, unless otherwise approved in writing by CDFW.
3.3.11 Endowment Buffers/Assumptions. Permittee shall include in the Long-Term 364
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Management Endowment PAR assumptions the following buffers for endowment establishment and use that will substantially ensure long-term viability and security of the Endowment:
3.3.11.1 10 Percent Contingency. A 10 percent contingency shall be added to each endowment calculation to hedge against underestimation of the fund, unanticipated expenditures, inflation, or catastrophic events.
3.3.11.2 Three Years Delayed Spending. The endowment shall be established assuming spending will not occur for the first three years after full funding.
3.3.11.3 Non-annualized Expenses. For all large capital expenses to occur periodically but not annually such as fence replacement or well replacement, payments shall be withheld from the annual disbursement until the year of anticipated need or upon request to Endowment Manager and CDFW.
3.3.12 Transfer Long-term Endowment Funds. Permittee shall transfer the Long- Term Endowment Funds to the Endowment Fund Manager upon CDFW approval of the Endowment Deposit Amount identified above prior to the start of Project activities OR within 18 months following start of Project activities if Security is provided. The Endowment Manager shall, at all times, hold and manage the Endowment in compliance with this Agreement, Government Code sections 65965-65968, as amended, and Probate Code sections 18501-18510, as amended.
3.4 Security. If permanent protection and funding for perpetual management of compensatory habitat is not complete prior to the initiation of Project activities, Permittee shall provide financial security in the form of a Letter of Credit (LOC) (Exhibit 3), or other form of security approved by CDFW, for an amount sufficient for CDFW or its contractors to complete land acquisition, property enhancement/restoration, initial management, and perpetual management and monitoring of the 0.16-acre Mitigation Site. The LOC shall be submitted to CDFW for approval and shall be executed [no later than 30 days] prior to initiation of Project activities.
3.4.1 Draft Copy of LOC. The Permittee shall provide a draft copy of the LOC, or other form of security approved by CDFW, to CDFW at the address listed below for review and approval no later than 60 days prior to initiation of Project activities and] prior to execution of security. The LOC shall not be executed without CDFW's prior approval.
3.4.2 Expiration of LOC. In the event that the LOC will expire before the mitigation obligations have been met, the Permittee shall be responsible for providing CDFW a new LOC to replace the existing LOC at least sixty 365
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(60) days prior to the expiration date.
3.4.3 Execution of LOC. If CDFW will hold a cash security, Permittee shall transmit it to CDFW with a completed Mitigation Payment Transmittal Form (see Exhibit 3). Otherwise, upon execution of the LOC, or other form of security approved by CDFW, the Permittee shall provide the original to the address listed on the LOC template, and one copy of the executed document to CDFW at the address listed below.
3.4.4 The LOC, or other form of security approved by CDFW, shall allow CDFW to draw on the principal sum if CDFW, in its sole discretion, determines that the Permittee has failed to complete the compensatory mitigation measures of this Agreement.
4. Reporting Measures
Permittee shall meet each reporting requirement described below.
4.1. Notification at the Start and End of Work. The Permittee shall notify CDFW, in writing, at least five (5) days prior to re-initiation of Project-related activities and at least five (5) days prior to completion of Project and mitigation activities. Permittee shall document compliance with all pre-Project Conditions of Approval before starting work through submitting a copy of the MMRP table with notes showing current implementation status and date of completion of each mitigation measure. Notification shall be sent to the email address: [email protected], Reference # EPIMS- RIV-39893-R6, and cc: [email protected].
4.2. Reporting. All surveys, pre- and post- construction notifications, monitoring reports, and any other required communication between the Permittee and CDFW shall be submitted in digital copy to [email protected].
Please reference # EPIMS- RIV-39893-R6 and cc:
[email protected]. The electronic files shall include GIS shapefiles, along with the appropriate metadata, of the Project area and any mitigation areas. If CDFW requests hard copies of any documentation, Permittee shall mail hard copies to 3602 Inland Empire Blvd., Suite C- 220, Ontario, CA 91764, Attn:
Lake and Streambed Program. Please reference # EPIMS-RIV-39893-R6.
4.3. Nesting Bird, Burrowing Owl, and Least Bell’s Vireo Survey Report. Prior to commencement of Project activities addressed by this Agreement, the Permittee shall submit to CDFW the results of pre-construction nesting bird, burrowing owl, and least Bell’s vireo surveys completed pursuant to this Agreement.
4.4. Nesting Bird Summary Report. Permittee shall prepare and submit to CDFW a summary, as described in Measure 2.13.6 of this Agreement of nesting species identified onsite, discovery of nests, the status/outcome of any previously identified nest, buffer distances established for each nest, and any adjustments 366
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made to established buffers. Summary reports shall be submitted on a weekly basis until there is no further evidence of nesting activity. If the Project results in the abandonment of or damage to a nest, Permittee shall notify CDFW within 24 hours.
4.5. Crotch’s Bumble Bee – Habitat Mapping Report. No less than 120 days prior to initiation of activities addressed by this Agreement, Permittee shall submit a baseline habitat report of the project site (including channel side slopes). The report will identify habitat alliances following Sawyer et al. (2009), as well as species composition, as identified in Measure 2.17. A map of habitat alliances will be included in the report and GIS files of the habitat mapping will be submitted to CDFW with the report.
4.6. Crotch’s Bumble Bee – Survey Plan. If habitat mapping identifies the presence of suitable habitat, no less than 90 days prior to initiation of project activities addressed by this Agreement, Permittee shall submit to CDFW for review and comment a survey plan for Crotch’s bumble bee, as described in Measure
2.18.2. The survey plan shall be created in coordination with the Designated Biologist identified in Measure 2.18.1. The survey plan will identify the timing, number, and duration of survey efforts, and procedures to follow should Crotch’s bumble bee be detected within the project area.
4.7. Crotch’s Bumble Bee – Survey Results. Survey results shall be submitted to CDFW within 30 days completion of survey efforts. The report will be prepared by the Designated Biologist identified in Measure 2.18.1 and will describe survey results as identified in Measure 2.18.3.
4.8. On-site Resource Updates. Permittee shall provide updates on the status/outcome of any new or previously identified resource, and any other pertinent information. Summaries shall be submitted on a monthly basis during periods of Project activity until Project completion or monitoring is complete.
Monitoring reports of any passively relocated species shall also be included. The updates shall be provided to CDFW as a Status Report in EPIMS, and any unsupported file type shall be emailed to the addresses below. CDFW may adjust the rate of updates in writing. If the Project results in the abandonment of or damage to a resource, Permittee shall notify CDFW within 24 hours via phone call or email at the contact information listed below.
4.9. Photo Documentation. The Permittee shall include, at minimum, pre-Project and post-Project color photographs taken from fixed locations of all Project areas within or directly adjacent to stream habitat. Two photo monitoring points shall be established at each stream impact area. Each photo point shall have an unobstructed view of the disturbed streambed area. Photo documentation shall be performed from each photo point prior to Project initiation and after Project completion. These photos shall be included in the Project Completion Report (see Measure 4.10).
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4.10. Project Completion Report. Permittee shall provide a Project Completion Report to CDFW via EPIMS no later than one month after the Project is fully completed. The Project Completion Report shall summarize all Project activities including the implementation of all items specified in Section 2 of this Agreement. The Project Completion Report shall demonstrate that impacts to streams are consistent with, and do not exceed, Project impacts authorized under this Agreement. This report shall include, at minimum, photo documentation (Measure 4.9), a quantification of the Project’s final total acres of impacts to streams, avoidance/minimization measures implemented, maps that display work areas, biological survey notes (including construction monitoring), and a summary of temporary and permanent restoration efforts with photo documentation. Permittee shall include a copy of the Mitigation and Monitoring Reporting Plan table with notes showing status and date of implementation for each of the mitigation measures. The Permittee shall also provide GPS data, taken before and after Project construction activities, to demonstrate that impacts to streams are consistent with, and do not exceed, Project impacts authorized under this Agreement. Notification shall be submitted via EPIMS and emailed to: [email protected], please reference Notification No. EPIMS-RIV-39893-R6, and cc:
4.11. Notification to CNDDB. If any special-status or listed species are/have been observed on or in proximity to the Project site, Permittee shall submit California Natural Diversity Data Base (CNDDB) forms and maps to the CNDDB within five working days of the sightings. The CNDDB form is available online at:
https://www.wildlife.ca.gov/Data/CNDDB/Submitting-Data. A digital copy of this information shall also be emailed within five days to CDFW. Please reference Notification No. EPIMS- RIV-39893-R6.
4.12. Compliance. CDFW shall verify compliance with protective measures to ensure the accuracy of the Permittee’s mitigation, monitoring, and reporting efforts.
CDFW may, at its sole discretion, review relevant documents maintained by the Permittee, interview the Permittee’s employees and agents, inspect the work site, and take other actions to assess compliance with or effectiveness of protective measures in this Agreement.
4.13. List of Designated Biologist(s). The Permittee shall submit a proposed list of Designated Biologist(s) to CDFW for review at least 30 days prior to Project start (see Measure 2.1). CDFW will provide written response within 21 days of Permittee submittal, unless a shortened review period is otherwise agreed to by CDFW in writing (email or letter). The list may be updated at any time by CDFW or the Permittee with the prior approval of CDFW.
4.14. Emergency Response Plan. The Permittee shall submit an Emergency Response Plan to CDFW prior to start of ground disturbance. The plan shall identify the actions that shall be taken in the event of a spill of petroleum 368
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products, or other material harmful to aquatic or plant life, and the identification and uses of emergency response materials.
CONTACT INFORMATION
Any communication that Permittee or CDFW submits to the other shall be submitted through Environmental Permit Information Management System (EPIMS) as instructed by CDFW.
To Permittee:
City of Wildomar, as represented by Jason Farag
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Bundy Canyon Road/Scott Road Improvement Project
23873 Clinton Keith Road, Wildomar, CA 92595
[email protected]
To CDFW:
Department of Fish and Wildlife
Inland Deserts Region
EPIMS-RIV-39893-R6
Bundy Canyon Road/Scott Road Improvement Project
[email protected]
cc: [email protected]
LIABILITY
Permittee shall be solely liable for any violations of the Agreement, whether committed by Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents or contractors and subcontractors, to complete the project or any activity related to it that the Agreement authorizes.
This Agreement does not constitute CDFW’s endorsement of, or require Permittee to proceed with the project. The decision to proceed with the project is Permittee’s alone.
SUSPENSION AND REVOCATION
CDFW may suspend or revoke in its entirety the Agreement if it determines that Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents, or contractors and subcontractors, is not in compliance with the Agreement.
Before CDFW suspends or revokes the Agreement, it shall provide Permittee written notice by certified or registered mail that it intends to suspend or revoke. The notice shall state the reason(s) for the proposed suspension or revocation, provide Permittee an opportunity to correct any deficiency before CDFW suspends or revokes the 369
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Agreement, and include instructions to Permittee, if necessary, including but not limited to a directive to immediately cease the specific activity or activities that caused CDFW to issue the notice.
ENFORCEMENT
Nothing in the Agreement precludes CDFW from pursuing an enforcement action against Permittee instead of, or in addition to, suspending or revoking the Agreement.
Nothing in the Agreement limits or otherwise affects CDFW's enforcement authority or that of its enforcement personnel.
OTHER LEGAL OBLIGATIONS
This Agreement does not relieve Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents, or contractors and subcontractors, from complying with, or obtaining any other permits or authorizations that might be required under, other federal, state, or local laws or regulations before beginning the project or an activity related to it. For example, if the project causes take of a species listed as threatened or endangered under the Endangered Species Act (ESA), such take will be unlawful under the ESA absent a permit or other form of authorization from the U.S. Fish and Wildlife Service or National Marine Fisheries Service.
This Agreement does not relieve Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents, or contractors and subcontractors, from complying with other applicable statutes in the Fish and Game Code including, but not limited to, Fish and Game Code sections 2050 et seq. (threatened and endangered species), section 3503 (bird nests and eggs), section 3503.5 (birds of prey), section 5650 (water pollution), section 5652 (refuse disposal into water), section 5901 (fish passage), section 5937 (sufficient water for fish), and section 5948 (obstruction of stream).
Nothing in the Agreement authorizes Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents, or contractors and subcontractors, to trespass.
AMENDMENT
CDFW may amend the Agreement at any time during its term if CDFW determines the amendment is necessary to protect an existing fish or wildlife resource.
Permittee may amend the Agreement at any time during its term, provided the amendment is mutually agreed to in writing by CDFW and Permittee. To request an amendment, Permittee shall use the “Amendments & Extension” form in EPIMS to submit the request. Permittee shall include with the completed form, payment of the 370
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corresponding amendment fee identified in CDFW’s current fee schedule (see Cal.
Code Regs., tit. 14, § 699.5).
TRANSFER AND ASSIGNMENT
This Agreement may not be transferred or assigned to another entity, and any purported transfer or assignment of the Agreement to another entity shall not be valid or effective, unless the transfer or assignment is requested by Permittee in writing, as specified below, and thereafter CDFW approves the transfer or assignment in writing.
The transfer or assignment of the Agreement to another entity shall constitute a minor amendment, and therefore to request a transfer or assignment, Permittee shall use the “Amendments & Extension” form in EPIMS to submit the request. Permittee shall include with the completed form, payment of the minor amendment fee identified in CDFW’s current fee schedule (see Cal. Code Regs., tit. 14, § 699.5).
EXTENSIONS
In accordance with Fish and Game Code section 1605, subdivision (b), Permittee may request one extension of the Agreement, provided the request is made prior to the expiration of the Agreement’s term. To request an extension, Permittee shall use the “Amendments & Extension” form in EPIMS to submit the request. Permittee shall include with the completed form, payment of the extension fee identified in CDFW’s current fee schedule (see Cal. Code Regs., tit. 14, § 699.5). CDFW shall process the extension request in accordance with Fish and Game Code section 1605, subdivisions (b) through (e).
If Permittee fails to submit a request to extend the Agreement prior to its expiration, Permittee must submit a new notification and notification fee before beginning or continuing the project the Agreement covers (Fish & G. Code § 1605, subd. (f)).
EFFECTIVE DATE
The Agreement becomes effective on the date of CDFW’s signature, which shall be: 1) after Permittee’s signature; 2) after CDFW complies with all applicable requirements under the California Environmental Quality Act (CEQA); and 3) after payment of the applicable Fish and Game Code section 711.4 filing fee listed at https://www.wildlife.ca.gov/Conservation/CEQA/Fees.
TERM
This Agreement shall expire on February 20, 2029 unless it is terminated or extended before then. All provisions in the Agreement shall remain in force throughout its term.
Permittee shall remain responsible for implementing any provisions specified herein to protect fish and wildlife resources after the Agreement expires or is terminated, as Fish and Game Code section 1605, subdivision (a)(2) requires. 371
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EXHIBITS
The documents listed below are included as exhibits to the Agreement and incorporated herein by reference.
A. Exhibit 1. Project Location
B. Exhibits 2a -2d. Project Site Breakdown and Delineation C. Exhibit 3. Letter of Credit
The documents listed below are included as attachments to the Agreement and incorporated herein by reference:
1. Minimization and Monitoring Reporting Plan Table
AUTHORITY
If the person signing the Agreement (signatory) is doing so as a representative of Permittee, the signatory hereby acknowledges that he or she is doing so on Permittee’s behalf and represents and warrants that he or she has the authority to legally bind Permittee to the provisions herein.
AUTHORIZATION
This Agreement authorizes only the project described herein. If Permittee begins or completes a project different from the project the Agreement authorizes, Permittee may be subject to civil or criminal prosecution for failing to notify CDFW in accordance with Fish and Game Code section 1602.
CONCURRENCE
Through the electronic signature by the permittee or permittee’s representative as evidenced by the attached concurrence from CDFW’s EPIMS, the permittee accepts and agrees to comply with all provisions contained herein.
The EPIMS concurrence page containing electronic signatures must be attached to this agreement to be valid.
372
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Streambed Alteration Agreement
Ver. EPIMS 03/08/2022
Exhibit 1
Exhibit 1. Project Location. Bundy Canyon Road/Scott Road Improvement Project is located within the City of Wildomar, Riverside County.
373
EPIMS-RIV-39893-R6
Streambed Alteration Agreement
Ver. EPIMS 03/08/2022
Exhibit 2a
Exhibit 2a. Project Site Delineation. Project area with depiction of resources and impacts.
374
EPIMS-RIV-39893-R6
Streambed Alteration Agreement
Ver. EPIMS 03/08/2022
Exhibit 2b
Exhibit 2b. Project Site Delineation. Project area with depiction of resources and impacts.
375
EPIMS-RIV-39893-R6
Streambed Alteration Agreement
Ver. EPIMS 03/08/2022
Exhibit 2c
Exhibit 2c. Project Site Delineation. Project area with depiction of resources and impacts.
376
EPIMS-RIV-39893-R6
Streambed Alteration Agreement
Ver. EPIMS 03/08/2022
Exhibit 2d
Exhibit 2d. Project Site Delineation. Project area with depiction of resources and impacts.
377
EPIMS-RIV-39893-R6
Streambed Alteration Agreement
Ver. EPIMS 03/08/2022
Exhibit 3
[Financial institution letterhead]
IRREVOCABLE STANDBY LETTER OF CREDIT
NO. [number issued by financial institution]
Issue Date: [date]
Beneficiary:
California Department of Fish and Wildlife
Habitat Conservation Planning Branch
Post Office Box 944209
Sacramento, CA 94244-2090
Attn: HCPB Contract Coordinator
Amount: U.S. $[dollar number] [(dollar amount)]
Expiry: [Date] at our counters
Dear Sirs:
1. At the request and on the instruction of our customer, [name of applicant] (“Applicant”), we, [name of financial institution] (“Issuer”), hereby establish in favor of the beneficiary, the California Department of Fish and Wildlife (“CDFW”), this irrevocable standby letter of credit (“Credit”) in the principal sum of U.S. $[dollar number] [(dollar amount)] (“Principal Sum”).
2. We are informed this Credit is and has been established for the benefit of CDFW pursuant to the terms of the [insert: “lake” or “streambed”] alteration agreement (No. [permit number]) for the [name of project] issued by CDFW to the Applicant on [date] (No. [number]) (“Permit”).
3. We are further informed that pursuant to the Permit, the Applicant has agreed to complete certain mitigation requirements in the Permit (“Mitigation Requirements”).
4. We are finally informed that this Credit is intended by CDFW and the Applicant to serve as a security device for the performance by the Applicant of the Mitigation Requirements.
5. CDFW shall be entitled to draw upon this Credit only by presentation of a duly executed Certificate for Drawing (“Certificate”) in the same form as Attachment A, 378
EPIMS-RIV-39893-R6
Streambed Alteration Agreement
Ver. EPIMS 03/08/2022
which is attached hereto, at our office located at [name and address of financial institution].
6. The Certificate shall be completed and signed by an Authorized Representative of CDFW as defined in paragraph 12 below. Presentation by CDFW of a completed Certificate may be made in person or by registered mail, return receipt requested, or by overnight courier.
7. Upon presentation of a duly executed Certificate as above provided, payment shall be made to CDFW, or to the account of CDFW, in immediately available funds, as CDFW shall specify.
8. If a demand for payment does not conform to the terms and conditions of this Credit, we shall give CDFW prompt notice that the demand for payment was not effected in accordance with the terms and conditions of this Credit, state the reasons therefore, and await further instruction.
9. Upon being notified that the demand for payment was not effected in conformity with the Credit, CDFW may correct any such non-conforming demand for payment under the terms and conditions stated herein.
10. All drawings under this Credit shall be paid with our funds. Each drawing honored by us hereunder shall reduce, pro tanto, the Principal Sum. By paying to CDFW an amount demanded in accordance herewith, we make no representations as to the correctness of the amount demanded.
11. This Credit will be cancelled upon receipt by us of Certificate of Cancellation, which: (i) shall be in the form of Attachment B, which is attached hereto, and (ii) shall be completed and signed by an Authorized Representative of CDFW, as defined in paragraph 12 below.
12. An Authorized Representative shall mean the Director of CDFW; the General Counsel of CDFW; a Regional Manager of CDFW; or the Branch Chief of CDFW’s Habitat Conservation Planning Branch.
13. This Credit shall be automatically extended without amendment for additional periods of one year from the present or any future expiration date hereof, unless at least sixty (60) days prior to any such date, we notify CDFW in writing by registered mail, return receipt requested, or by overnight courier that we elect not to consider this Credit extended for any such period.
14. Communications with respect to this Credit shall be in writing and addressed to us at [name and address of financial institution], specifically referring upon such writing to this credit by number. The address for notices with respect to this Credit shall be: (i) for CDFW: Department of Fish and Wildlife, Habitat Conservation Planning Branch, Post Office Box 944209, Sacramento, CA 94244- 379
EPIMS-RIV-39893-R6
Streambed Alteration Agreement
Ver. EPIMS 03/08/2022
2090, Attn: HCPB Contract Coordinator; and (ii) for the Applicant: [name and address of applicant].
15. This Credit may not be transferred.
16. This Credit is subject to the International Standby Practices 1998 (“ISP 98”). As to matters not covered by the ISP 98 and to the extent not inconsistent with the ISP 98, this credit shall be governed by and construed in accordance with the Uniform Commercial Code, Article 5 of the State of California.
17. This Credit shall, if not canceled, expire on [expiration date], or any extended expiration date.
18. We hereby agree with CDFW that documents presented in compliance with the terms of this Credit will be duly honored upon presentation, as specified herein.
19. This Credit sets forth in full the terms of our undertaking. Such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Credit is referred to or to which this Credit relates and any such reference shall not be deemed to incorporate herein by reference any document or instrument.
[Name of financial institution]
By: _____________________________
Name: ___________________________
Title: ____________________________
Telephone: __________________________
380
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Streambed Alteration Agreement
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ATTACHMENT A
CERTIFICATE FOR DRAWING
[CDFW Letterhead]
[Date]
[Name and address of financial institution]
Re: Irrevocable Standby Letter of Credit No. [number issued by financial institution]
The undersigned, a duly Authorized Representative of the California Department of Fish and Wildlife (“CDFW”), as defined in paragraph 12 of the above-referenced standby letter of credit (“Credit”), hereby certifies to the Issuer that:
1. [Insert one of the following statements: “In the opinion of CDFW, the Applicant has failed to complete the Mitigation Requirements referenced in paragraph 3 of the Credit.” or “As set forth in paragraph 13, the Issuer has informed CDFW that the Credit will not be extended and the Applicant has not provided CDFW with an equivalent security approved by CDFW to replace the Credit.”]
2. The undersigned is authorized under the terms of the Credit to present this Certificate as the sole means of demanding payment on the Credit.
3. CDFW is therefore making a drawing under the Credit in amount of U.S. $_____________.
4. The amount demanded does not exceed the Principal Sum of the Credit.
Therefore, CDFW has executed and delivered this Certificate as of this ___day of [month], [year].
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
___________________________________________
[Insert one of the following: “Director” or “General Counsel” or “Regional Manager, [Name of Regional Office]” or “Chief, Habitat Conservation Planning Branch”]
381
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Streambed Alteration Agreement
Ver. EPIMS 03/08/2022
ATTACHMENT B
CERTIFICATE FOR CANCELLATION
[CDFW Letterhead]
[Date]
[Name and address of financial institution]
Re: Irrevocable Standby Letter of Credit No. [number issued by financial institution]
The undersigned, a duly Authorized Representative of the California Department of Fish and Wildlife (“CDFW”), as defined in the paragraph 12 in the above-referenced Irrevocable Standby Letter of Credit (“Credit”), hereby certifies to the Issuer that:
1. [Insert one of the following statements: “The Applicant has presented documentary evidence of full compliance with the Mitigation Requirements referenced in paragraph 3 of the Credit.” or “The Applicant has provided CDFW with an equivalent security approved by CDFW to replace the Credit.”]
2. CDFW therefore requests the cancellation of the Credit.
Therefore, CDFW has executed and delivered this Certificate for Cancellation as of this ____ day of [month], [year].
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
___________________________________________
[Insert one of the following: “Director” or “General Counsel” or “Regional Manager, [Name of Regional Office]” or “Chief, Habitat Conservation Planning Branch”]
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Attachment A
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
MITIGATION MONITORING AND REPORTING PLAN (MMRP)
LAKE OR STREAMBED ALTERATION AGREEMENT
LAKE OR STREAMBED ALTERATION AGREEMENT NO. EPIMS-RIV-29893-R6 PERMITTEE: City of Wildomar
PROJECT: Bundy Canyon Road/Scott Road Improvement Project
PURPOSE OF THE MMRP
The purpose of the MMRP is to ensure that the impact mitigation measures required by the Department of Fish and Wildlife (CDFW) for the above-referenced Lake or Streambed Alteration Agreement EPIMS No. RIV-39893-R6 (Agreement) are properly implemented, and thereby to ensure compliance with, section 15097 of the California Code of Regulations and section 21081.6 of the Public Resources Code. A table summarizing the mitigation measures required by Fish and Game Code 1600 et seq. is attached. This table is a tool for use in monitoring and reporting on implementation of mitigation measures, but the descriptions in the table do not supersede the mitigation measures set forth in the Agreement, and the omission of a permit requirement from the attached table does not relieve the Permittee of the obligation to ensure the requirement is performed.
OBLIGATIONS OF PERMITTEE
Permittee has the primary responsibility for monitoring compliance with all mitigation measures and for reporting to CDFW on the progress in implementing those measures. These monitoring and reporting requirements are set forth in the Agreement itself and are summarized at the front of the attached table. 383
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VERIFICATION OF COMPLIANCE, EFFECTIVENESS
CDFW may, at its sole discretion, verify compliance with any mitigation measure or independently assess the effectiveness of any mitigation measure.
TABLE OF MITIGATION MEASURES
Table 1. The following items are identified for each Mitigation Measure: Mitigation Measure number (#), Mitigation Measures, Implementation Schedule, Responsible Party, and Status/Date/Initials. The # column indicates the mitigation measure number in the Agreement. The Mitigation Measure column summarizes the mitigation, monitoring, and reporting requirements contained in the Agreement. The Implementation Schedule column shows the date or phase when each mitigation measure will be implemented. The Responsible Party column identifies the entity that is primarily responsible for implementing the mitigation measure. The Status/Date/Initials column shall be completed by the Permittee during preparation of each Status Report and the Final Mitigation Report. The Permittee must identify the implementation status of each mitigation measure, the date that status was determined, and the initials of the person determining that status.
384
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Reporting Table
Project Start Date: Project End Date:______________ Measure
#
Mitigation Measure Timeline
Date
Submitted to
CDFW
Date Reviewed
or Approved by
CDFW
Notes
Pre-Project Activities
1.8 Notify CDFW Prior to Work.
Minimum of 5 days before
commencing ground- or
vegetation-disturbing
activities.
2.1 Designated Biologist(s) and
Biological Monitor(s).
Minimum of 45 days before
commencing ground- or
vegetation-disturbing
activities.
2.5 Delineate Work Area
Boundary.
Before commencing ground-
or vegetation-disturbing
activities.
2.12 Educational Program.
Before commencing ground-
or vegetation-disturbing
activities.
2.13.2 Pre-construction Surveys.
Three days before
commencing ground- or
vegetation-disturbing
activities.
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2.13.6 Nesting Bird Reporting Submitted to CDFW no less than once weekly regarding
the nesting species identified
onsite, discovery of any of
new nests, the
status/outcome of any
previously identified nest,
buffer distances established
for each nest, and any
adjustments made to
established buffers
2.16.1 Burrowing Owl Habitat
Assessment.
Before commencing ground-
or vegetation-disturbing
activities.
2.16.2 Focused Survey for
Burrowing Owls.
30-60 days before
commencing ground- or
vegetation-disturbing
activities.
2.16.3 Burrowing Owl Pre-
Construction Inspection.
Within 3 days before
commencing ground- or
vegetation-disturbing
activities.
2.16.4 Burrowing Owl Survey
Results.
Within 10 days of survey
completion and minimum of
21 days before commencing
ground- or vegetation-
disturbing activities
2.16.6 Burrowing Owl Plan.
At least 30 days before
commencing ground- or
vegetation-disturbing
activities.
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2.17 Crotch bumble bee – Habitat
Mapping
Before commencing ground-
or vegetation-disturbing
activities.
2.18.2 Crotch bumble bee – Survey.
Before commencing ground-
or vegetation-disturbing
activities.
2.18.3 Crotch bumble bee –
Surveys.
Before commencing ground-
or vegetation-disturbing
activities.
2.40 Work According to Plans.
At least 30 days before
commencing ground- or
vegetation-disturbing
activities.
3.2 Habitat Re-
establishment/Rehabilitation–
Offsite (Mitigation Bank).
Prior to purchase of credits.
Mitigation credits shall be
purchased, and receipt
provided to CDFW, at least
30 days prior to the initiation
of Project activities, which
includes staging and site
preparation, unless security
is provided
3.3.1 Mitigation Site Approval Minimum of five months prior to the start of Project
Activities OR four months
following the start of Project
Activities if Security is
provided.
3.3.1 Habitat Management Land
Acquisition Package
No later than five months
prior to the start of Project
Activities OR four months
following start of Project
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Activities if Security is
provided
3.3.2 Mitigation Site Conservation
Easement
After CDFW approval of the
Mitigation Site and no later
than four months prior to the
start of Project Activities OR
six months following the start
of Project Activities if Security
is provided
3.3.3 Mitigation Site Land Manager After CDFW approval of the Mitigation Site and no later
than four months prior to the
start of Project Activities OR
six months following start of
Project Activities if Security is
provided
3.3.5 Habitat Mitigation and
Monitoring Plan (HMMP)
After CDFW approval of the
Mitigation Site and no later
than four months prior to the
start of Project Activities OR
six months following start of
Project Covered Activities if
Security is provided
3.3.6 Long Term Management Plan After CDFW approval of the mitigation Site and no later
than three months prior to the
start of Project Activities OR
six months following start of
Project Activities if Security
is provided.
3.3.9 Property Analysis Record for
Mitigation Site HMMP and
No later than two months
prior to the start of Project
Activities OR three months
following start of Project
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Long-Term Management
Fund
Activities if Security is
provided.
3.3.12 Transfer Long-term
Endowment Funds
Prior to the start of Project
Activities OR within 18
months following start of
Project Activities if Security is
provided
4.1 Construction Notification
(start)
At least 5 days prior to
initiation of Project activities
4.1 Construction Notification
(end)
Within 5 days after
completion of Project
activities
4.3 Nesting Bird and Burrowing
Owl, Survey Report
Prior to initiation of Project
activities
4.13 List of Designated
Biologist(s)
At least 45 days prior to
initiation of Project-related
activities
During Project Operations
1.9 Reporting Violations Within 48 hours of the
violation occurring
2.8 Check for Wildlife in
Pipes/Construction Materials At the end of each workday.
2.9 Excavated Areas. At the end of each workday.
2.13.6 Reporting. No less than once weekly.
2.16.5 Burrowing Owls Observed
During Construction.
During project
implementation and
construction.
Post-project Activities
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4.9 Project Completion Report No later than one month after the Project is fully completed
4.10 CNDDB Reporting Within 30 days of sightings
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391
CITY OF WILDOMAR
CC - REGULAR MEETING
CONSENT CALENDAR
Agenda Staff Report # 1.11
Meeting Date: March 13, 2024
SUBJECT:
Agreement for Services between the City of Wildomar,
California, and Gods Fan Club ( Dba Project T.O.U.C.H.) SUBMITTED BY:
Raul Berroteran
PREPARED BY:
Raul Berroteran
ACTION:
1. Authorize the City Manager to execute a Professional Services Agreement between the City of Wildomar and God’s Fan Club Dba Project T.O.U.C.H.
2. Approve a supplemental appropriation of $41,940.00 for Fiscal Year 2024 in the Measure AA Fund 120-410-4610-52115
BACKGROUND:
On behalf of the city, the service provider will provide emergency shelter services to address and reduce the homeless population within the City of Wildomar effectively. The Service Provider will coordinate efforts with the City of Wildomar and The Riverside County Sheriff’s Department, the City’s contracted street outreach Provider, and another stakeholder. The prime goal is to continue to provide emergency sheltering services in the City of Wildomar to engage with persons experiencing unsheltered homelessness with the ultimate goal of moving individuals and families into housing sustainability.
On February 14th the City Council approved an MOU with the City of Murrieta to coordinate the following services on behalf of the City of Wildomar: street outreach and case management services, emergency sheltering services, encampment clean-up services, diversion services, and other services with the goal of functional zero homelessness between the two cities. Functional zero homelessness is defined as all services leading to a bed available for any individual desiring to reach housing sustainability. Execution of an Agreement with Project Touch is a provision of the MOU. 392
DISCUSSION:
The proposed agreement outlines key areas of cooperation between the City of Wildomar and God’s Fan Club dba Project T.O.U.C.H. to assist with providing shelter to the homeless.
Addressing homelessness includes the establishment of joint outreach teams, information- sharing mechanisms, and a unified approach to delivering shelter and services to individuals experiencing homelessness. The collaborative efforts outlined in the MOU are intended to maximize the impact of Homeless Outreach Services and promote a unified front against homelessness in our communities.
FISCAL IMPACT:
Services are provided as needed with a monthly maximum of $10,485.00. The total fiscal impact for this contract will be $62,910.00, with an additional $10,485.00 per month If the contract continues.
For the fiscal year 2024, the impact will be $41,940.00 and staff are recommending a supplemental appropriation of this amount to cover the expenditures.
ACCOUNT CODE:
120-410-4610-52115 Contractual Services
ATTACHMENTS:
Attach A - Project Touch-Wildomar PSA-Final 3-14-24..pdf 393
ATTACHMENT
Exhibit A
394
AGREEMENT FOR SERVICES
By and Between
THE CITY OF WILDOMAR,
a municipal corporation
and
GOD’S FAN CLUB (Dba PROJECT T.O.U.C.H.)
a California non-profit organization
395
AGREEMENT FOR SERVICES
BETWEEN
THE CITY OF WILDOMAR, CALIFORNIA
AND
GOD’S FAN CLUB (Dba PROJECT T.O.U.C.H.)
This Agreement for Services (“Agreement”) is entered into as of this 13th day of March, 2024 by and between the City of Wildomar, a municipal corporation (“City”) and God’s Fan Club, dba Project T.O.U.C.H., a California non- profit organization (“Service Provider”). City and Service Provider are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City has sought, by direct request and is in need of services to assist with providing shelter to the homeless; the performance of services which are defined and described particularly in Section 2 of this Agreement.
B. Service Provider, following submission of a proposal for the performance of the services defined and described particularly in Section 2 of this Agreement, was selected by the City to perform those services.
C. Service Provider has special knowledge, experience, and facilities for accomplishing the services described particularly in Section 2 of this Agreement.
D. Pursuant to the City of Wildomar’s Municipal Code, the City has the authority to enter into this Services Agreement, and the City Manager has the authority to execute this Agreement.
E. City now desires to retain the Service Provider to accomplish the services described particularly in Section 2 of this Agreement, and the Service Provider is willing to be so retained pursuant to the terms and conditions of this Agreement.
F. The Parties desire to formalize the selection of Service Provider for the performance of those services defined and described particularly in Section 2 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT.
Subject to the provisions of Section 20 , "Termination of Agreement" of this Agreement, the Term of this Agreement shall be for six (6) months, ending on September 396
13, 2024. After the six-month timeframe is reached, the parties may agree to extend the contract with City Council approval with the option for a month-to-month agreement term.
SECTION 2. SCOPE OF SERVICES & SCHEDULE OF PERFORMANCE. (a) Scope of Services . Service Provider agrees to perform the services set forth in Exhibit “A” “Scope of Services” (hereinafter, the “Services”) and made a part of this Agreement by this reference.
(b) S chedule of Performance. The Services shall be completed pursuant to the schedule specified in Exhibit “A.” Should the Services not be completed pursuant to that schedule, the Service Provider shall be deemed to be in Default of this Agreement. The City, in its sole discretion, may choose not to enforce the Default provisions of this Agreement and may instead allow Service Provider to continue performing the Services.
SECTION 3. ADDITIONAL SERVICES.
Service Provider shall not be compensated for any work rendered in connection with its performance of this Agreement that are in addition to or outside of the Services unless such additional services are authorized in advance and in writing in accordance with Section 26 “Administration and Implementation” or Section 28 “Amendment” of this Agreement. If and when such additional work is authorized, such additional work shall be deemed to be part of the Services.
SECTION 4. COMPENSATION AND METHOD OF PAYMENT.
(a) Subject to any limitations set forth in this Agreement, the city agrees to pay the Service Provider the amounts specified in Exhibit “B” “Compensation” and made a part of this Agreement by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed Ten Thousand F our hundred Eighty-Five ($10,485.00) per month. U nless additional compensation is approved in writing in accordance with Section 26, “Administration and Implementation,” or Section 28, “Amendment” of this Agreement. In accordance with California Government Code Section 8546.7, if the Not to Exceed Amount exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement and the Service Provider's books and records related to this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement.
(b) Each month, the Service Provider shall furnish to the City an original invoice for all work performed and expenses incurred during the preceding month. The invoice shall detail charges in the following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub-Service Provider contracts. Sub-Service Provider charges shall be detailed by the following categories: labor, travel, materials, equipment , and supplies. If the compensation set forth in subsection (a) and Exhibit “B” includes payment of labor on an hourly basis (as opposed to labor and materials being paid as a lump sum), the labor category in each invoice shall include detailed descriptions of task performed and the amount of time incurred for or allocated to that task. The city shall independently review each invoice submitted by the Service Provider to determine whether the work 397
performed and expenses incurred are in compliance with the provisions of this Agreement. In the event that no charges or expenses are disputed, the invoice shall be approved and paid according to the terms set forth in subsection (c). In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Service Provider for correction and resubmission.
(c) Except as to any charges for work performed or expenses incurred by Service Provider which are disputed by City, City will use its best efforts to cause Service Provider to be paid within forty-five (45) days of receipt of Service Provider’s correct and undisputed invoice.
(d) Payment to Service Provider for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Service Provider.
SECTION 5. INSPECTION AND FINAL ACCEPTANCE.
City may inspect and accept or reject any of Service Provider ’s work under this Agreement, either during performance or when completed. City shall reject or finally accept Service Provider’s work within sixty (60) days after submitted to City. City shall reject work by a timely written explanation, otherwise Service Provider ’s work shall be deemed to have been accepted. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as amount to fraud.
Acceptance of any of Service Provider’s work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 16 “Indemnification” and Section 17 “Insurance.”
SECTION 6. OWNERSHIP OF DOCUMENTS; EXCEPTIONS; WARRANTY Except as otherwise provided below, all documents, data, studies, drawings, maps, models, photographs and reports prepared by Service Provider (collectively, “Documents”) under this Agreement are City’s property. Service Provider may retain copies of such Documents as desired but will deliver all original materials to City upon City’s written notice. City agrees that use of Service Provider ’s completed work product, for purposes other than identified in this Agreement, or use of incomplete work product, is at City’s own risk. Service Provider warrants that all Documents it drafts and completes pursuant to this Agreement constitutes original work. Specifically, Service Provider understands and agrees that use of artificial intelligence (AI) tools including, without limitation, ChatGPT, Microsoft’s Bing Chat, Google’s Bard, and Meta’s LLM MA (Large Language Model Meta AI), in the performance of this Agreement does not constitute an original work, i.e., submitting Documents generated by such AI tools to City and representing it as Service Provider’s original work constitutes a material breach of this Agreement, constitutes a false claim, and may also violate applicable intellectual property right laws including, without limitation, United States Copyright Law. Accordingly, and notwithstanding any other provision of this Agreement as to ownership, City specifically rejects ownership of such Documents. Service Provider is required to indemnify and defend City to the fullest extent allowed by applicable law should it violate this Section. 398
All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents prepared, developed or discovered by Service Provider in the course of providing the Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Service Provider. Upon completion, expiration or termination of this Agreement, Service Provider shall turn over to City al l such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents.
If and to the extent that City utilizes for any purpose not related to this Agreement any maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents prepared, developed or discovered by Service Provider in the course of providing the Services pursuant to this Agreement, Service Provider’s guarantees and warranties in Section 9 “Standard of Performance” of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents.
All Final Work Product developed by Service Provider in the course of providing the Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Service Provider. Upon completion, expiration or termination of this Agreement, Service Provider shall turn over to City all such Final Work Product if paid for by the City. This provision specifically excludes Service Provider s’ work notes and drafts, which are owned by Service Provider, not City.
SECTION 7. SERVICE PROVIDER'S BOOKS AND RECORDS.
(a) Service Provider shall maintain any and all documents and records demonstrating or relating to Service Provider ’s performance of the Services. Service Provider shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements charged to City pursuant to this Agreement. Any and all such documents or records shall be maintained in accordance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by Service Provider pursuant to this Agreement. Any and all such documents or records shall be maintained for three (3) years from the date of execution of this Agreement and to the extent required by laws relating to audits of public agencies and their expenditures. (b) Any and all records or documents required to be maintained pursuant to this section shall be made available for inspection, audit and copying, at any time during regular business hours, upon request by City or its designated representative. Copies of such documents or records shall be provided directly to the City for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records shall be made available at Service Provider’s address indicated for receipt of notices in this Agreement.
399
(c) Where City has reason to believe that any of the documents or records required to be maintained pursuant to this section may be lost or discarded due to dissolution or termination of Service Provider ’s business, City may, by written request, require that custody of such documents or records be given to the city. Access to such documents and records shall be granted to the City, as well as to its successors-in-interest and authorized representatives.
SECTION 8. INDEPENDENT CONTRACTOR.
(a) Service Provider is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of City. Nothing in this Agreement may be construed to be inconsistent with this relationship or status. The Service Provider shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of the City. Service Provider shall have no authority to bind City in any manner, nor to incur any obligation, debt, or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. (b) The Service Provider shall perform all Services as an independent contractor of the City and shall remain at all times as to the City a wholly independent contractor with only such obligations as are consistent with that role. Service Provider shall be solely responsible for the means, methods, techniques, sequences, and procedures in performance of Services. The personnel performing the Services under this Agreement on behalf of Service Provider shall at all times be under Service Provider’s exclusive direction and control. Any terms within this Agreement regarding City directives apply to a concern the result of Service Provider’s provision of service and not the means, methods, or scheduling of the Service Provider ’s work. Neither City, nor any elected or appointed boards, officers, officials, employees, or agents of City, shall have control over the conduct of Service Provider or any of Service Provider ’s officers, employees, or agents except as set forth in this Agreement. The Service Provider shall not at any time or in any manner represent that Service Provider or any of Service Provider’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. (c) Neither the Service Provider , nor any of Service Provider ’s officers, employees or agents, shall obtain any privileges or rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Service Provider expressly waives any claim Service Provider may have to any such benefits, privileges or rights.
SECTION 9. STANDARD OF PERFORMANCE.
Service Provider represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent, and professional manner. The Service Provider shall at all times faithfully, competently and to the best of its ability, experience, and talent, perform all Services. In meeting its obligations under this Agreement, the Service Provider shall employ, at a minimum, generally accepted standards and practices uti lized by persons engaged in providing services similar to the Services required of the Service Provider 400
under this Agreement. In addition to the general standards of performance set forth in this section, additional specific standards of performance and performance criteria may be set forth in Exhibit “A” “Scope of Work” that shall also be applicable to the Service Provider’s work under this Agreement. Where there is a conflict between a general and a specific standard of performance or performance criteria, the specific standard or criteria shall prevail over the general.
SECTION 10. COMPLIANCE WITH APPLICABLE LAWS , PERMITS, AND LICENSES.
Service Provider shall keep itself informed of and comply with all applicable federal, state, and local laws, statutes, codes, ordinances, regulations, and rules in effect during the term of this Agreement. Service Provider shall obtain any and all licenses, permits, and authorizations necessary to perform the Services set forth in this Agreement.
Neither the City nor any elected or appointed boards, officers, officials, employees, or agents of the City shall be liable, at law or in equity, as a result of any failure of the Service Provider to comply with this section.
SECTION 11. PREVAILING WAGE LAWS
It is the understanding of City and Service Provider that California prevailing wage laws do not apply to this Agreement because the Agreement does not involve any of the following services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated thereunder: Construction, alteration, demolition, installation, or repair work performed on public buildings, facilities, streets or sewers done under contract and paid for in whole or in part out of public funds. In this context, “construction" includes work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work.
SECTION 12. NONDISCRIMINATION.
Service Provider shall not discriminate, in any way, against any person based on race, color, religious creed, national origin, ancestry, sex, age, physical handicap, medical condition or marital status in connection with or related to the performance of this Agreement.
SECTION 13. UNAUTHORIZED ALIENS.
Service Provider hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein.
Should Service Provider so employ such unauthorized aliens for the performance of the Services and should the any liability or sanctions be imposed against City for such use of unauthorized aliens, Service Provider hereby agrees to and shall reimburse Cit y for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by City.
SECTION 14. CONFLICTS OF INTEREST.
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(a) Service Provider covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City, or which would in any way hinder Service Provider ’s performance of the Services. Service Provider further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Service Provider agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
(b) City understands and acknowledges that Service Provider is, as of the date of execution of this Agreement, independently involved in the performance of non-related services for other governmental agencies and private parties. Service Provider is unaware of any stated position of City relative to such projects. Any future position of the City on such projects shall not be considered a conflict of interest for the purposes of this section.
(c) City understands and acknowledges that the Service Provider will perform non-related services for other governmental agencies and private Parties following the completion of the Services under this Agreement. Any such future service shall not be considered a conflict of interest for the purposes of this section.
SECTION 15. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) All information gained or work product produced by Service Provider in performance of this Agreement shall be considered confidential unless such information is in the public domain or already known to Service Provider . Service Provider shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law.
(b) Service Provider, its officers, employees, agents, or subcontractors, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided the Service Provider gives City notice of such court order or subpoena.
(c) If Service Provider , or any officer, employee, agent, or subcontractor of Service Provider, provides any information or work product in violation of this Agreement, then City shall have the right to reim bursement and indemnity from Service Provider for any damages, costs and fees, including attorney's fees, caused by or incurred as a result of Service Provider’s conduct.
Service Provider shall promptly notify City should Service Provider , its officers, employees, agents, or subcontractors, be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for 402
admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. The city retains the right, but has no obligation, to represent the Service Provider or be present at any deposition, hearing, or similar proceeding. Service Provider agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Service Provider. However, this right to review any such response does not imply or mean the right of the City to control, direct, or rewrite said response. Service Provider shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law or for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding if such filing is made under seal.
SECTION 16. INDEMNIFICATION.
(a) Indemnification for Professional Liability. Where the law establishes a professional standard of care for Service Provider ’s services, to the fullest extent permitted by law, Service Provider shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees and agents (“Indemnified Parties”) from and against any and all liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorney’s fees and costs, court costs, interest, defense costs, and expert witness fees) arise out of, are a consequence of, or are in any way attributable to, in whole or in part, any negligent or wrongful act, error or omission of Service Provider, or by any individual or entity for which Service Provider is legally liable, including but not limited to officers, agents, employees or sub-contractors of Service Provider, in the performance of professional services under this Agreement.
(b) I
ndemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Service Provider shall indemnify, protect, defend , and hold harmless City and any and all of its employees, officials, and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorney’s fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Service Provider, or by any individual or entity for which Service Provider is legally liable, including but not limited to officers, agents, employees or sub-contractors of Service Provider. (c) I
ndemnification from Sub- Service Providers. The Service Provider agrees to obtain executed indemnity agreements with provisions identical to those set forth in this section from each and every sub- Service Provider or any other person or entity involved by, for, with, or on behalf of the Service Provider in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event the Service Provider fails to obtain such indemnity obligations from others as required herein, the Service Provider agrees to be fully responsible according to the terms of this section. 403
Failure of the City to monitor compliance with these requirements imposes no additional obligations on the City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns or heirs of Service Provider and shall survive the termination of this Agreement or this section.
(d) City’s Negligence . The provisions of this section do not apply to claims occurring as a result of the City’s sole negligence. The provisions of this section shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officials, employees and agents.
SECTION 17. INSURANCE.
Service Provider agrees to obtain and maintain in full force and effect during the term of this Agreement the insurance policies set forth in Exhibit “C” “Insurance” and made a part of this Agreement. All insurance policies shall be subject to approval by City as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Service Provider agrees to provide City with copies of required policies upon request.
SECTION 18. ASSIGNMENT.
The expertise and experience of the Service Provider are material considerations for this Agreement. City has an interest in the qualifications and capability of the persons and entities who will fulfill the duties and obligations imposed upon Service Provider under this Agreement. In recognition of that interest, Service Provider shall not assign or transfer this Agreement or any portion of this Agreement or the performance of any of Service Provider’s duties or obligations under this Agreement without t he prior written consent of the City. Any attempted assignment shall be ineffective, null and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreemen t pursuant to Section 20 “Termination of Agreement.” City acknowledges, however, that Service Provider , in the performance of its duties pursuant to this Agreement, may utilize sub-contractors.
SECTION 19. CONTINUITY OF PERSONNEL.
The Service Provider shall make every reasonable effort to maintain the stability and continuity of the Service Provider ’s staff and sub -contractors, if any, assigned to perform the Services. The Service Provider shall notify City of any changes in the Service Provider’s staff and sub-contractors, if any, assigned to perform the Services prior to and during any such performance.
SECTION 20. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreement, with or without cause, at any time by giving thirty (30) days written notice of termination to Service Provider. In the event such notice is given, the Service Provider shall cease immediately all work in progress. 404
(b) Service Provider may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City. (c) If either Service Provider or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Service Provider , or City may terminate this Agreement immediately upon written notice. (d) Upon termination of this Agreement by either Service Provider or City, all property belonging exclusively to City which is in Service Provider ’s possession shall be returned to City. Service Provider shall furnish to City a final invoice for work performed and expenses incurred by Service Provider , prepared as set forth in Section 4 “Compensation and Method of Payment” of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 4 “Compensation and Method of Payment” of this Agreement.
SECTION 21. DEFAULT.
In the event that the Service Provider is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Service Provider for any work performed after the date of default. Instead, the City may give notice to the Service Provider of the default and the reasons for the default. The notice shall include the timeframe in which the Service Provider may cure the default.
This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period that the Service Provider is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Service Provider does not cure the default, the city may take necessary steps to terminate this Agreement under Section 20 “Termination of Agreement.” Any failure on the part of the City to give notice of the Service Provider’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
SECTION 22. EXCUSABLE DELAYS.
Service Provider shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of Service Provider. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state, or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes.
SECTION 23. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished to Service Provider in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement. 405
SECTION 24. NOTICES.
All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows:
To City: City of Wildomar
Attn: City Manager
23873 Clinton Keith Rd., Suite 201
Wildomar, CA 92595
To Service Provider: God’s Fan Club, dba Project T.O.U.C.H.
Attn: Anne Unmacht, President/CEO
30141 Antelope Rd D-103
Menifee, CA 92584
Phone: (951) 677-9661
Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.
SECTION 25. AUTHORITY TO EXECUTE.
Each of the signatories hereto represents and warrants that he or she is competent and authorized to enter into this Agreement on behalf of the Party for whom he or she purports to sign. Each Party hereto agrees to defend, indemnify, and hold harmless the other Parties hereto against all claims, suits, actions, and demands, including necessary expenses of investigation and reasonable attorneys' fees and costs, arising out of claims that its signatory was not competent or so authorized to execute this Agreement.
SECTION 26. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 28 “Amendment” and the City Manager’s contracting authority under the Wildomar Municipal Code.
SECTION 27. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
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SECTION 28. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Service Provider and by the City. The City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agreement, as amended, would not exceed the City Manager’s contracting authority under the Wildomar Municipal Code. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void. The City’s City Manager may, but is not required to, make minor amendments not affecting substantive terms without further authorization from the City Council. The City Council hereby authorizes the City Manager to execute any such amendments as required by this Agreement or that do not otherwise reduce the City’s rights under this Agreement. The City Council shall approve all other amendments.
SECTION 29. WAIVER.
The waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant.
The waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by the City of any work or services by the Service Provider shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 30. LAW TO GOVERN, VENUE.
This Agreement shall be interpreted, construed, and governed according to the laws of the State of California. In the event of litigation between the Parties, the venue in state trial courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, the venue shall lie exclusively in the Central District of California, in Riverside.
SECTION 31. ATTORNEY’S FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs, and expenses, in addition to any other relief to which it may be entitled.
SECTION 32. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits "A" through "C", is the entire, complete, final, and exclusive expression of the Parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between Service Provider and City prior to the execution of this Agreement. No statements, representations, or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding. 407
SECTION 33. SEVERABILITY.
If any term, condition, or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby, and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).
SECTION 34. CONFLICTING TERMS.
Except as otherwise stated herein, if the terms of this Agreement conflict with the terms of any Exhibit hereto, or with the terms of any document incorporated by reference into this Agreement, the terms of this Agreement shall control.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
CITY OF WILDOMAR
___________________________
Daniel A. York
City Manager
ATTEST:
___________________________
Janet Morales, CMC
City Clerk
APPROVED AS TO FORM
_______________________________
Thomas D. Jex
City Attorney 408
“Service Provider”:
GOD’S FAN CLUB dba PROJECT T.O.U.C.H
____________________________
Ann Unmacht, President/CEO
NOTE: SERVICE PROVIDER’S SIGNATURES SHALL BE DULY NOTARIZED,
AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY
BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION,
OR OTHER RULES OR REGULATIONS APPLICABLE TO SERVICE
PROVIDER’S BUSINESS ENTITY.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ________________
On ______________, before me, ________________, personally appeared ________________, proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
Signature of Notary Public Place Notary Seal Above
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER____________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_________________________________________
_________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
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EXHIBIT "A"
SCOPE OF SERVICES
Purpose
On behalf of the city, the Service Provider will provide emergency sheltering services to effectively address and reduce the homeless population within the City of Wildomar.
Service Provider will coordinate efforts with the city , the Riverside County Sheriff’s Department, the City’s contracted street outreach provider, and other stakeholders. The primary goal is to continue providing emergency sheltering services in the city to engage with persons experiencing unsheltered homelessness, with the ultimate goal of moving individuals and families into housing sustainability.
Key Activities
• Emergency Sheltering
Service Provider will commit to providing a facility under the administration and control of Service Provider for the purposes of emergency sheltering of homeless individuals and families. Funding will be provided on a per client basis for sheltering and meals, plus a cost sharing formula for the payment of utilities, as described in the budget.
• Case Management and Wrap-Around Services
The Service Provider will assist in the coordination of case management services for individual and family services in partnership with the city and the City’s contracted provider for case management services. This work may include completion of an intake assessment that addresses the individual’s issues, behaviors, and barriers to housing. Depending on an individual’s or family’s need, additional services will include verification of homeless status, verification the individuals have been homeless in Wildomar , procurement of identification, assistance with applying for and receiving benefits, and completion of a housing sustainability plan.
• The City’s contracted service provider for case management services (at this time City Net) will be primarily responsible for providing case management services at the emergency shelter through a separate agreement with the city.
Measurable Outcomes
Service Provider’s responsibilities:
• Service Provider shall provide facility(s) currently under the administration and control of Service Provider to be used as emergency shelter. Service Provider, in consultation with the City and the City’s contracted provider for case management services, has the ability to utilize the facility in the best manner 411
to maximize occupancy up to a maximum of sixteen (16) clients per facility.
Exceptions to maximum occupancy may be provided when families with children need shelter, upon the approval of the City.
• Service Provider shall be responsible for maintaining livable shelter for clients. All units will be in safe and working order as defined below under “Minimum Habitability Standards.”
• Service Provider shall procure all services related to the maintenance and repairs of the facility.
• There is no expectation that clients utilizing homeless services at this facility have a right to such units for long-term use. Service Provider, in consultation with the City and the City’s contracted case management provider, shall determine an individual’s needs and next steps for housing sustainability.
• Service Provider , in consultation of the city and the City’s contracted case management provider, may transfer clients to different units, different bedrooms, or different living arrangements for maximum usage.
• Service Provider in consultation with the city and the City’s contracted case management provider, is responsible for administration of the Emergency shelter. Such responsibilities may include determining rules, monitoring services, and ensuring individuals are complying with stated rules and regulations.
• Service Provider shall receive reimbursement for meals provided to clients at a rate of $20.00 per day. Food may or may not be prepared and may include groceries.
Capped at a maximum of four (4) clients per night.
•
Service Provider shall receive reimbursement for Sheltering of client(s) at a rate of $65.00 per night per client. A bed per client*; restroom and bathing facilities.
Capped at (4) clients per night.
• Service Provider shall receive a monthly portion for utilities ( electricity, gas, and water) of $285.00 per month.
Reporting:
• Service Provider shall provide monthly reports in a mutually agreeable format to the City that includes daily bed utilization.
• Service Provider shall provide monthly billing/invoices for services rendered according to the ESG-CV2 grant.
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City responsibilities:
• The City shall regularly provide direction to the Service Provider regarding the priority of clients.
• The City is responsible for communicating goals, objectives, and priorities to the Service Provider.
• When necessary for safety or overall support, the Riverside County Sheriff’s Department may provide assistance for situations affecting the safety of clients of the emergency shelter.
Minimum Habitability Standards
Project Touch shall abide by the Minimum Habitability Standards for Shelter and Permanent Housing under the previously agreed Emergency Solutions Grant Program interim rule 24 CFR §576.403. In addition, Project Touch shall provide housing or services that comply with all applicable State and local housing codes, licensing requirement, and any other requirements in the project’s jurisdiction. Such items include:
1. Sanitary facilities.
2. Access to restrooms and bathing facilities
3. Food preparation and refuse disposal.
4. Space and security.
5. Thermal environment.
6. Illumination and electricity.
7. Safe structure and materials.
8. Interior air quality.
9. Water supply.
10. Lead-based paint.
11. Site and neighborhood.
12. Smoke detectors.
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Budget
ITEM DESCRIPTION FORMULA MONTHLY COST
Sheltering A bed per client*; restroom
and bathing facilities. Capped
at 4 clients per night.
During times of high
utilization, occasionally
alternative methods may be
used (e.g., young children
can share a bed, or an adult
may be placed on a couch),
upon approval of the City.
$65.00 per night per
client
$7,800.00
Meals Food provided for clients
Capped at 4 clients per diem.
* Does not have to be
prepared items
$ 20.00 per diem per
client
$2,400.00
Utilities Gas, water, and Electricity $285.00 $285.00
TOTAL MONTHLY
NOT-TO-EXCEED
AMOUNT:
$10,485.00
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EXHIBIT "B"
COMPENSATION
Service Provider shall use the following rates of pay in the performance of the Services:
Consideration. In consideration of the services to be performed by Service Provider for the C ity as set forth in Section 1, the C ity agrees to pay Service Provider a sum not to exceed Ten Thousand F our Hundred Eighty-Five ($10,485.00) per month, based on the number of clients and utilities as stipulated in Exhibit A.
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Exhibit C
Insurance Requirements
Service Provider shall procure and maintain, for the duration of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Service Provider , its agents, representatives, or employees.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury, and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Service Provider has no owned autos, Code 8 (hired) and 9 (non-owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. (Not required if Service Provider provides written verification, it has no employees)
If the Service Provider maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Service Provider. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Service Provider including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Service Provider ’s insurance (at least as 416
broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this Agreement, the Service Provider’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self -insurance maintained by the City, its officers, officials, employees, or volunteers shall be in excess of the Service Provider’s insurance and shall not contribute with it.
Notice of Cancellation
Service Provider shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required policies are reduced; (3) or the deductible or self -insured retention is increased. In the event of any cancellation or reduction in coverage or limits of any insurance, the Service Provider shall forthwith obtain and submit proof of substitute insurance.
Waiver of Subrogation
Service Provider hereby grants to City a waiver of any right to subrogation which any insurer of said Service Provider may acquire against the City by virtue of the payment of any loss under such insurance. Service Provider agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. However, the Workers’ Compens ation policy shall be endorsed wi th a waiver of subrogation in favor of the City for all work performed by the Service Provider, its employees, agents, and subcontractors.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the city. The city may require the Service Provider to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or City.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
417
Service Provider shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Service Provider ’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Subcontractors
Service Provider shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Service Provider shall ensure that City is an additional insured on insurance required from subcontractors.
Special Risks or Circumstances
The city reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
418
CITY OF WILDOMAR
CC - REGULAR MEETING
PUBLIC HEARING
Agenda Staff Report # 2.1
Meeting Date: March 13, 2024
SUBJECT:
Public Hearing for Annexation No. 8 (Tres Lagos Apartments, Phase 2) - Consideration of Territory to be Annexed to
Community Facilities District No. 2022-1 (Services), Calling an Election, Ordering the Levy and Collection of Special Taxes, and Declaring the Election Results for CFD 2022-1 (Services), Annexation No. 8
SUBMITTED BY:
Ninette Eva
PREPARED BY:
Matt Kramer
ACTION:
1. Open the public hearing;
2. Take testimony;
3. Close the public hearing;
4. Adopt a Resolution entitled:
RESOLUTION NO. 2024 - _____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WILDOMAR, CALIFORNIA,
CALLING AN ELECTION TO SUBMIT TO THE QUALIFIED ELECTORS THE QUESTION OF
LEVYING A SPECIAL TAX WITHIN THE AREA PROPOSED TO BE ANNEXED TO COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES) (ANNEXATION NO. 8)
5. Hold the election;
6. Canvass the election; and
7. Adopt a Resolution entitled:
RESOLUTION NO. 2024 - _____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WILDOMAR, CALIFORNIA, DECLARING ELECTION RESULTS FOR COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES) (ANNEXATION NO. 8)
SUMMARY:
419
Hold a Public Hearing to consider annexing Phase 2 of the Tres Lagos Apartment Project into CFD 2022-1 for Maintenance Services,
hold a special election, and declare the election
results
.
BACKGROUND:
On
January 17, 2024
, the City Council adopted
Resolution
No
.
2024-
01 ,
d
eclaring
its
intention
to annex territory to Community Facilities District No. 20 22 -1 (Services)
(the “CFD No. 20
22 -1”
or “CFD”
)
and
commence
the annexation proceedings for the territory to be annexed , also
known as
Annexation No
.
8 (Tres Lagos Apartments, Phase 2)
.
A public hearing
has been
set
for
March 13,
2024
to conduct an election for the landowners and to declare the results of that election
.
DISCUSSION:
As required by the Resolution of Intention, an annexation map was recorded on January 19, 2024, at 12:46 p.m. in Book 92, Page 63, Document No. 2024-0018108 of Maps of Assessment and Community Facilities Districts with the Riverside County Recorder.
The Resolution of Intention was adopted by the City Council in response to a petition filed by the property owners, Palm Communities, of Phase 2 of 3 for LLA 2022-004 (Tres Lagos Apartments) containing 3.34 gross acres within the City and has requested that the City assist them in annexing territory into CFD No. 2022-1 (Services) to cover the costs associated with the maintenance of public improvements. The improvements proposed to be maintained include items such as lighting, street maintenance, parks, and graffiti abatement.
In addition to maintaining public improvements, the CFD No. 2022-1 will include a special tax to provide for financing of certain public services to meet increased demands of police and fire protection services as a result of the new developments that annex into the CFD.
The area proposed within Annexation No. 8 will encompass 3.34 acres to include 88 apartment units, with a FY 2023-24 maximum annual tax of $473.25 per unit, per year. The property proposed to be annexed into CFD No. 2022-1 will be included in Tax Zone 8. This tax rate includes a Maximum Special Tax A of $153 per unit per year for maintenance services of public facilities, and Maximum Special Tax B of $320.25 per unit per year for safety. Maximum Special Tax A will increase by the greater of Consumer Price Index (CPI) or 2% and Special Tax B will increase by the greater of CPI or 5%, both not to exceed 6%. Palm Communities 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 420
the shortening of election time requirements, waiving analysis and arguments, and waiving all notice requirements relating to conduct the election.
FISCAL IMPACT:
The projected levy for
Phase
2 of Tax Zone
8 in
FY 2023-24 is $
13,464
for the first year of
Special Tax A maintenance services. Special Tax B will generate $ 28,182
once all
8 8
units
are developed. These levies are intended to offset the City's future costs to maintain the new public improvements. Costs associated with the processing of this annexation are covered by developer fees and deposits. There is no impact to the General Fund.
ATTACHMENTS:
1 - Project Map Annexation No. 8
2 - Resolution Calling an Election
2A - Resolution Exhibits
3 - Resolution Declaring Election Results
3A - Resolution Exhibit A, Certificate of Election Results 421
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LA ESTRELLA ST
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§¨¦15
CFD NO. 2022-1 (SERVICES)
ANNEXATION NO. 8
PROJECT MAP
422
RESOLUTION NO. 2024-_________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF WILDOMAR, CALIFORNIA, CALLING AN ELECTION
TO SUBMIT TO THE QUALIFIED ELECTORS THE
QUESTION OF LEVYING A SPECIAL TAX WITHIN THE
AREA PROPOSED TO BE ANNEXED TO COMMUNITY
FACILITIES DISTRICT NO. 2022-1 (SERVICES)
(ANNEXATION NO. 8)
WHEREAS, on April 13, 2022, the City Council (the “City Council”) of the City of Wildomar (the “City”) approved Resolution No. 2022-11 declaring the City’s intention to establish Community Facilities District No. 2022-1 (Services) of the City of Wildomar, County of Riverside, State of California (the "CFD No. 2022-1") 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 as a result of the development of said real property; and WHEREAS, the City Council set a public hearing for June 8, 2022, after which the Council adopted Resolution No. 2022-30 forming the CFD No. 2022-1 and calling a special election at which the questions of levying a special tax and establishing an appropriations limit with respect to the CFD No. 2022-1 were submitted to the qualified electors within the CFD No. 2022-1; and
WHEREAS, on June 8, 2022, the City Council adopted Resolution No. 2022-31 declaring the results of the special election and finding that more than two-thirds (2/3) of all votes cast at the special election were cast in favor of the proposition presented, and such proposition passed; and
WHEREAS, the City Council is authorized by Article 3.5 (commencing with Section 53339) of Chapter 2.5 of Part 1 of Division 2 of Title 5 of the Government Code as amended (the "Act"), to annex territory into an existing community facilities district by complying with the procedures set forth in said Article 3.5; and WHEREAS, the City Council on January 17, 2024, duly adopted Resolution No. 2024- 01 (the “Resolution of Intention”) declaring its intention to annex certain territory to CFD No. 2022-1 (Services) and to levy a special tax within that territory to pay for certain services and setting a time and place for the public hearing on the proposed annexation for March 13, 2024; and
WHEREAS, the territory proposed to be annexed is identified in the map entitled "Annexation Map No. 8 Community Facilities District No. 2022-1 (Services)" a copy of which was recorded, on January 19, 2024, in Book 92 of Maps of Assessment and Community Facilities Districts at Page 63, in the office of the Riverside County Recorder; and
WHEREAS, pursuant to the Act and the Resolution of Intention, a notice of public hearing was convened by the City Council on March 13, 2024, not earlier than the hour 423
of 6:00 p.m. at the City Hall located at 23873 Clinton Keith Road, Wildomar, California 92595, relative to the proposed annexation of said territory to CFD No. 2022-1; and WHEREAS, written protests have not been filed by fifty percent (50%) or more of the registered voters residing within the CFD No 2022-1, or by fifty percent (50%) or more of the registered voters residing within the territory to be annexed, or by the owners of one-half (1/2) or more of the area within the CFD No. 2022-1, or by the owners of one- half (1/2) or more of the territory to be annexed; and
WHEREAS, the City Council has determined that there are fewer than twelve registered voters residing in the territory proposed to be annexed to the CFD No. 2022-1 and that the qualified electors in such territory are the landowners; and WHEREAS, on the basis of all of the foregoing, the City Council has determined at this time to call an election to authorize the annexation of territory to the CFD No. 2022-1 and the levying of a special tax as described in Exhibit A hereto; and WHEREAS, the City Council has received a written instrument from each landowner in the territory proposed to be annexed to the CFD No. 2022-1 consenting to the shortening of election time requirements, waiving analysis and arguments, waiving all notice requirements, and waiving word limit requirements for the ballot relating to the conduct of the election; and
WHEREAS, the City Clerk has concurred in the election date set forth herein.
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 2022-1 (SERVICES) OF THE CITY OF WILDOMAR, DETERMINE AND ORDER AS FOLLOWS:
Section 1 Recitals. The foregoing recitals are true and correct.
Section 2. Conformation of Finding in Resolution of Intention. The City Council reconfirms all of its findings and determinations as set forth in the Resolution of Intention.
Section 3. Findings Regarding Protests. The City Council finds and determines that written protests to the proposed annexation of territory to the CFD No. 2022-1 and the levy of the special tax within such territory are insufficient in number and in amount under the Act, and the City Council hereby further orders and determines that all such protests are hereby overruled.
Section 4. Findings Regarding Prior Proceedings. The City Council finds and determines that all prior proceedings had and taken by the City Council with respect to the annexation of territory to CFD No. 2022-1 are valid and in conformity with the requirements of the Act.
424
Section 5. Levy of Special Tax. As stated in the Resolution of Intention, except where funds are otherwise available, subject to the approval of the qualified electors of territory proposed to be annexed to CFD No. 2022-1, a special tax sufficient to pay the costs of the Services (including incidental expenses as described in the Resolution of Intention), secured by recordation of a continuing lien against all nonexempt real property in CFD No. 2022-1, will be levied annually in CFD No. 2022-1. The rate and method of apportionment, and manner of collection of the special tax are specified in Exhibit A hereto.
Section 6. Apportionment of Tax. The special tax as apportioned to each parcel is based on the cost of making the Services available to each parcel, or other reasonable basis, and is not based on or upon the ownership of real property.
Section 7. Tax Roll Preparation. The office of the Public Works Director, 23873 Clinton Keith Road., City of Wildomar, is hereby designated as the office that will be responsible for annually preparing a current roll of special tax levy obligations by assessor’s parcel number and that will be responsible for estimating future special tax levies pursuant to Government Code section 53340.2. The Public Works Director may cause these functions to be performed by his or her deputies, assistants, or other designated agents.
Section 8. Accountability Measures. Pursuant to Section 50075.1 of the California Government Code, the City shall create a separate account into which tax proceeds will be deposited; and the Public Works Director annually shall file a report with the City Council that will state (a) the amount of funds collected and expended and (b) the status of the Services financed in CFD No. 2022-1.
Section 9. Special Election; Voting Procedures. The City Council hereby submits the questions of levying the special tax within the territory proposed to be annexed to the qualified electors, in accordance with and subject to the Act. The special election shall be held on March 13, 2024, and shall be conducted as follows:
(a) Qualified Electors. The City Council hereby determines that the Services are necessary to meet increased demands placed upon the City as a result of development occurring within the boundaries of CFD No. 2022-1. Because fewer than twelve registered voters resided within the territory proposed to be annexed to CFD No. 2022-1 on January 4, 2024 (a date within the 90 days preceding the close of the public hearing on the territory proposed to be annexed to CFD No. 2022-1), the qualified electors shall be the landowners within territory proposed to be annexed, and each landowner who was the owner of record at the close of the hearing shall have one vote for each acre or portion of an acre of land that such landowner owns within the territory proposed to be annexed to CFD No. 2022-1.
(b) Consolidation of Elections; Combination of Propositions on Ballot. The election on the question of levying the special tax and establishing an appropriations limit for CFD No. 2022-1 shall be consolidated, and the two proportions shall be combined into a single ballot proposition for submission to the voters, as authorized by Government Code Section 53353.5.
425
(c) Mail Ballot Election. Pursuant to Government Code section 53327.5, the election shall be conducted as a mail ballot election. The City Council hereby ratifies the City Clerk’s delivery of a ballot to each landowner within the territory proposed to be annexed to CFD No. 2022-1. The City Council hereby ratifies the form of the ballot, which is attached hereto as Exhibit B. The full text of the ballot for said elections shall be as set forth in Exhibit C and shall be included in the ballot pamphlet mailed to each qualified elector.
(d) Return of Ballots. The City Clerk shall accept the ballots of the landowners up to 6:00 p.m. on March 13, 2024. The City Clerk shall have available ballots that may be marked at the City Clerk’s office on the election day by voters.
Once all qualified electors have voted, the City Clerk may close the election. (e) Canvass of Election. The City Clerk shall commence the canvass of the returns of the special election as soon as the election is closed (on March 13, 2024, or when all qualified electors have voted) at the City Clerk’s office. At the conclusion of the canvass, the City Clerk shall declare the results of the election. (f) Declaration of Results. The City Council shall declare the results of the special election following the completion of the canvass of the returns and shall cause to be inserted into its minutes a statement of the results of the special election as ascertained by the canvass of the returns.
Section 10. Filing of Resolution and Map with City Clerk. The City Council hereby directs the City Clerk to file a copy of this resolution and the annexation map of the boundaries of CFD No. 2022-1 in his/her office.
PASSED, APPROVED AND ADOPTED this 13th day of March 2024:
Bridgette Moore
Mayor
APPROVED AS TO FORM: ATTEST:
Thomas D. Jex Janet Morales
City Attorney City Clerk
426
EXHIBIT A
RATE AND METHOD OF APPORTIONMENT
427
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 property 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 428
City of Wildomar 2
Community Facilities District No. 2022‐1 (Services)
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 issuance 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 construction 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 1 st 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.
429
City of Wildomar 3
Community Facilities District No. 2022‐1 (Services)
“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. 430
City of Wildomar 4
Community Facilities District No. 2022‐1 (Services)
"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 required in any Fiscal Year, if the POA 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 431
City of Wildomar 5
Community Facilities District No. 2022‐1 (Services)
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:
432
City of Wildomar 6
Community Facilities District No. 2022‐1 (Services)
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 allocated 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:
433
City of Wildomar 7
Community Facilities District No. 2022‐1 (Services)
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
434
City of Wildomar 8
Community Facilities District No. 2022‐1 (Services)
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:
435
City of Wildomar 9
Community Facilities District No. 2022‐1 (Services)
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 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 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:
436
City of Wildomar 10
Community Facilities District No. 2022‐1 (Services)
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 437
City of Wildomar 11
Community Facilities District No. 2022‐1 (Services)
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 aggregate 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 Special Tax C (Contingent) shall be levied Proportionately 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 been 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.
438
City of Wildomar 12
Community Facilities District No. 2022‐1 (Services)
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 public 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.
439
City of Wildomar 13
Community Facilities District No. 2022‐1 (Services)
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 8 – SPECIAL TAX A
LLA 2022‐004
Item Description Estimated Cost
1 Lighting $386
2 Streets $2,318
3 Parks $8,041
4 Graffiti $195
5 Reserves $733
6 Admin $1,791
Total $13,464
Special Tax B Services – It is estimated that the cost of providing Police and Fire Protection services being funded by Special Tax B for the Community Facilities District No. 2022‐1 (Services) as outlined in Exhibit “B” hereto, will be as follows for the first year:
TAX ZONE 8 – SPECIAL TAX B
LLA 2022‐004
Land Use Category Unit Maximum Special Tax B
Multi‐Family Residential Property RU $320.25
Special Tax C (Contingent) Services – There are no maintenance services proposed to be funded by the levy of Special Tax C (Contingent) for Community Facilities District No. 2017‐1 Tax Zone 8.
440
City of Wildomar 14
Community Facilities District No. 2022‐1 (Services)
TAX ZONE 8
LLA 2022‐004
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 Multi‐Family Residential RU $153 $320.25 $0 Approved Property Multi‐Family Residential RU $153 N/A $0 Undeveloped Property N/A Acre $4,031 N/A $0
441
City of Wildomar 15
Community Facilities District No. 2022‐1 (Services)
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 2023‐24 TR
36781/36782 191 SFR RU $267 $451.50 $46 CPR/CWR Westpark Project, LLC
8 2023‐24 LLA 2022‐004 88 MFR RU $153 $320.25 $0 Palm Communities 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.
442
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 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.
443
City of Wildomar 17
Community Facilities District No. 2022‐1 (Services)
EXHIBIT C
CITY OF WILDOMAR
COMMUNITY FACILITIES DISTRICT NO. 2022‐1 (SERVICES)
PROPOSED BOUNDARIES
444
CATT
RD
LEXI
LN
AVRY WAY
BANYAN RIM DR
FOX RIDGE LN380-100-022
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 8
\_
§¨¦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.
02 5 0 5 0 0125 Feet
-
PROPOSED ANNEXATION MAP NO. 8
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
8 TAX ZONE
8 445
EXHIBIT B
BALLOT
446
SPECIAL TAX ELECTION
CITY OF WILDOMAR
ANNEXATION OF TERRITORY TO
COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES)
ANNEXATION NO. 8
(March 13, 2024)
This ballot is for the use of the authorized representative of the following owner of land within Annexation No. 8 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
Palm Communities 3.34 4
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 February 28, 2024 , 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 March 13, 2024, 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 March 13, 2024.
Very truly yours,
Janet Morales
City Clerk
City of Wildomar
447
T
O CAST THIS BALLOT, PLEASE RETURN THIS ENTIRE PAGE.
OFFICIAL SPECIAL TAX BALLOT
Name & Address of Property Owner: Assessor’s Parcel Number(s):
Palm Communities
Attn: Danavon L. Horn
100 Pacifica, Suite 203
Irvine, CA 92618
380-100-022
A
NNEXATION OF TERRITORY TO
COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES)
ANNEXATION NO. 8
MARK AN “X” OR OTHER MARK WILL CAST ALL VOTES ASSIGNED TO THIS BALLOT S
PECIAL 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 set forth in the following table:
Land Use
Category
Taxable
Unit
Maximum
Special Tax A
Maximum
Special Tax B
Multi-Family Residential RU $153 $320.25
plus an annual increase on each July 1, commencing July 1, 2024 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, and 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, to finance certain services including lighting, streets, parks, and graffiti abatement for Special Tax A, and police and fire protection for Special Tax B as provided in the Rate and Method of Apportionment which is attached as Exhibit C to Resolution No. 2024-0 1 adopted by the City Council of the City of Wildomar on January 17, 2024 (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
C
ertification 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___________.
P
alm Communities
Danavon L. Horn
President
Signature
Print Name
Title
448
EXHIBIT C
FULL TEXT OF PROPOSITION
449
FULL TEXT OF PROPOSITION
SPECIAL ELECTION TO SUBMIT TO THE QUALIFIED ELECTORS THE QUESTION OF LEVYING A
SPECIAL TAX WITHIN THE AREA PROPOSED TO BE ANNEXED TO COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES) (ANNEXATION NO. 8)
March 13, 2024
SPECIAL TAX BALLOT MEASURE: Shall t he City Council of t he City of Wildomar be authorize d to levy a special tax on an annual basis at the rates set forth in the following table:
Land Use
Category
Taxable
Unit
Maximum
Special Tax A
Maximum
Special Tax B
Multi-Family Residential RU $153 $320.25
plus an annual increase on each July 1, commencing July 1, 2024 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, and 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 s
ince the beginning of the preceding Fiscal Year, not to exceed 6%, or ii) by five percent (5.0%), whichever is greater, to finance certain services including lighting, streets, parks, and graffiti abatement for Special Tax A, and police and fire protection for Special Tax B as provided in the Rate and Method of Apportionment which is attached as Exhibit C to Resolution No. 2024-0 1 adopted by the City Council of the City of Wildomar on January 17, 2024 (inc luding incidental expenses), and shall an appropriation limit be established for the Community Facilities District No. 2022-1 (Services) in the amount of special taxes collected?
450
RESOLUTION NO. 2024-_________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF WILDOMAR, CALIFORNIA, DECLARING ELECTION
RESULTS FOR COMMUNITY FACILITIES DISTRICT NO.
2022-1 (SERVICES) ANNEXATION NO. 8
WHEREAS, the City Council (the "City Council") of the City of Wildomar (the "City") has heretofore conducted proceedings for the area proposed to be annexed to Community Facilities District No. 2022-1 (Services) (the "CFD No. 2022-1") of the City of Wildomar, including conducting a public hearing pursuant to Section 53339.5 of the Government Code; and
WHEREAS, at the conclusion of said public hearing, the City Council adopted a resolution calling a special election for March 13, 2024, and submitting to the qualified electors of the territory to be annexed to the CFD No. 2022-1 the question 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 as a result of the development of said real property as provided in the form of special election ballot; and
WHEREAS, a Certificate of Election Results, attached thereto as Exhibit A, dated March 13, 2024, executed by the City Clerk (or, in the absence of the City Clerk, the Acting City Clerk – in either case, the “Clerk”), has been filed with this Council, certifying that a completed ballot has been returned to the Clerk for each landowner-voter(s) eligible to cast a ballot in said special election, with all votes cast as “Yes” votes in favor of the ballot measure, and further certifying on said basis that the special mailed-ballot election was closed; and
WHEREAS, this Council has received, reviewed and hereby accepts the Clerk’s Certificate of Election Results and wishes by this resolution to declare the results of the special mailed-ballot election;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WILDOMAR:
Section 1. Recitals. This Council finds and determines that the foregoing recitals are true and correct.
Section 2. Ballot Measure. This Council hereby finds, determines and declares that the ballot measure submitted to the qualified electors of the territory to be annexed to CFD No. 2022-1 has been passed and approved by those qualified electors in accordance with Sections 53328 and 53329 of the Government Code.
Section 3. Annexation. This Council hereby finds, determines and declares that pursuant to Section 53339.8 of the Government Code, the City Council is authorized to determine that the territory to be annexed has been added to and become a part of the CFD No. 2022-1 with full legal effect, and the City Council is also authorized, pursuant to said Section 53339.8, to annually levy special taxes within the territory to be annexed 451
to pay the costs of the services to be provided by the CFD No. 2022-1 as specified in Resolution No. 2024-01 adopted by the City Council on January 17, 2024. The boundaries of the territory annexed are shown on the map entitled, "Annexation Map No. 8 Community Facilities District No. 2022-1 (Services)" a copy of which was recorded, on January 19, 2024, in Book 92 of Maps of Assessment and Community Facilities Districts at Page 63, in the office of the Riverside County Recorder.
Section 4. Notice of Special Tax Lien. Pursuant to Section 53339.8 of the Government Code and Section 3117.5 of the Streets and Highways Code, the City Clerk shall cause to be filed with the County Recorder of the County of Riverside an amendment of the notice of special tax lien and a map of the amended boundaries of the CFD No. 2022-1 including the annexed territory.
Section 5. Effect. This resolution shall take effect from and after its adoption.
PASSED, APPROVED AND ADOPTED this 13th day of March 2024:
Bridgette Moore
Mayor
APPROVED AS TO FORM: ATTEST:
Thomas D. Jex Janet Morales
City Attorney City Clerk
452
EXHIBIT A
CITY OF WILDOMAR
COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES)
ANNEXATION NO. 8
CERTIFICATE OF ELECTION RESULTS
I, the undersigned, being the Deputy City Clerk or the City Clerk, as the case may be, hereby certify:
In connection with the special mailed-ballot election called by the City Council (the “City Council”) of the City of Wildomar (the “City”) on this same date in the proceedings of the City Council for the annexation of territory to the above-entitled community facilities district, I personally received (a) a signed and dated waiver and consent form and (b) a signed, dated and marked election ballot(s) on behalf of the owner(s) listed below, the entity named as the sole landowner of the land within the boundary of the above-entitled community facilities district in the Certificate Regarding Registered Voters and Landowners, dated January 4, 2024, and on file in the office of the City Clerk of the City in connection with the City Council actions on that date. Copies of the completed waiver and consent form and the completed ballot received by me and on file in my office are attached hereto.
Following such receipt, I have personally, and in the presence of all persons present, reviewed the ballot to confirm that it is properly marked and signed, and I hereby certify the result of that count to be that the ballot was cast in favor of the measure.
Based upon the foregoing, all votes that were cast having been cast “Yes”, in favor of the ballot measure, the measure has therefore passed.
Landowner
Qualified
Landowner Votes Votes Cast YES NO
Palm Communities 4 4
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 ____________, 2024.
Janet Morales
City Clerk
City of Wildomar
By:
(Attach completed copies of Waiver/Consent and Ballots) 453
CITY OF WILDOMAR
CC - REGULAR MEETING
GENERAL BUSINESS
Agenda Staff Report # 3.1
Meeting Date: March 13, 2024
SUBJECT:
AB 168 Cultural Resource Treatment and Disposition
Agreements between City of Wildomar and Pechanga and
Soboba Band of Luiseno Indians for the Project Touch
Transitional Housing Proposal; and a
Presentation by Project
Touch regarding their services.
SUBMITTED BY:
Matthew Bassi
PREPARED BY:
Matthew Bassi
ACTION:
1. Authorize the City Manager to execute the Cultural Resource Treatment and Disposition Agreements between City of Wildomar and Pechanga and Soboba Band of Luiseno Indians for the Project Touch Transitional Housing proposal; and
2. Receive a presentation by the Project Touch team regarding their services.
BACKGROUND:
This agenda item will serve as an opportunity for Council to approve the AB 168 Cultural Resource Treatment and Disposition Agreements, as well as, receive a presentation from the Project Touch team regarding their future 10-unit (85-bed) transitional housing proposal.
Government Code Section 65913.4(b) (known as AB 168) adopted by the State of California added a “government-to-government” tribal consultation process to the Senate Bill (SB) 35 special processing requirements for affordable and transitional housing projects. The approval of these Agreements will allow Project Touch to submit a formal SB 35 application.
The purpose and goal of AB 168 is to formalize procedures for the treatment and disposition of all Tribal Cultural Resources, ceremonial items, items of cultural patrimony, artifacts, and Native American human remains and associated grave goods, in the event that any are found in conjunction with development of an SB 35 affordable and transitional housing projects, including archaeological studies, excavation, geotechnical investigations, grading, trenching, and any ground disturbing activities.
454
The AB 168 tribal consultation process must be completed before a formal SB 35 application can be submitted by Project Touch. AB 168 requires the tribal consultation process to begin after a developer submits a SB 330 preliminary application for the proposed SB 35 affordable and transitional housing project. If one or more tribes request consultation with the agency and it is determined that there are potential tribal cultural resources that could be impacted by the project, the tribe(s) and agency must engage in “good faith” and “reasonable efforts” to enter into an agreement regarding the methods, measures, and conditions for tribal cultural resource treatment.
DISCUSSION:
On January 9, 2024, the Planning Department initiated the AB 168 consultation process with both the Pechanga and Soboba Band of Luiseno Indians. The consultation process began as a result of the submittal of Project Touch’s SB 330 Pre-Application (PAR) package for their future 10-unit (85-bed) transitional housing proposal. Between January 9th and this meeting, the city and tribes met to discuss the provisions of the Cultural Resource Treatment and Disposition Agreement.
It is important to note that Project Touch was not involved in these discussions as prescribed by state law. The consultation process with Pechanga and Soboba has now resulted in an official agreement between the City and Tribes (Attach A and B). These agreements are being presented to the City Council for approval. The primary provisions of the agreement, which are substantially the same for both Tribes, are summarized as follows:
Tribal Monitoring
- Project Touch is required to enter into a “Tribal Monitoring Agreement” with Pechanga and Soboba Band of Luiseño Indians (separate agreements). The City also agrees to require Project Touch to submit a copy of the signed agreements prior to approval of their SB 35 transitional housing project. Tribal monitor(s) shall be required on-site during all ground-disturbing activities, including archeological site surveys, grading, stockpiling of materials, engineered fill, rock crushing, utility installation, etc.
Cultural Resources/Tribal Cultural Resources Disposition - In the event that Native
American tribal cultural resources or cultural resources are discovered during the course of initial survey or grading (inadvertent discoveries) activities, procedures have been agreed to for final disposition of any cultural discoveries. Refer to agreements for more details.
Inadvertent Archeological Finds
- If during ground disturbance activities, cultural
resources are discovered that were not assessed prior to project approval, special procedures have been agreed to. Cultural resources are defined, as being multiple artifacts in close association with each other, but also include fewer artifacts if the area of the find is determined to be of significance due to its sacred or cultural importance as determined in consultation with the Tribe. Refer to agreements for more details.
Human Remains
- If human remains are encountered, State Health and Safety Code 455
Section 7050.5 states that no further ground disturbance shall occur until the Riverside County Coroner has made the necessary findings as to origin. Refer to agreements for more details.
Non-Disclosure of Reburial Locations
- It is understood by all parties that unless
otherwise required by law, the site of any reburial of Native American human remains or associated grave goods shall not be disclosed and shall not be governed by public disclosure requirements of the California Public Records Act. Refer to agreements for more details.
Successors and Assigns
- The Agreements shall be binding upon and inure to the benefit of the heirs, successors, representatives, executors, administrators, and assignees of the Parties, including subsequent landowners and developers of the Project area. Refer to agreements for more details.
The approval of these Agreements will complete the City’s obligation under AB 168 to engage in good faith and reasonable efforts to agree on methods, measures, and conditions to avoid or address impacts to tribal cultural resources that the Project Touch proposal may have. The terms of these Agreements are substantially the same as the City’s standard tribal cultural resource mitigation measures.
Conclusion:
The tribal agreements being presented to City Council are mandatory in accordance with the requirements of AB 168. The agreements have been thoroughly reviewed by both Wildomar’s City Attorney and Attorneys for Pechanga and Soboba Tribes to ensure compliance with AB 168 and preservation of any tribal cultural resources.
FISCAL IMPACT:
There is no fiscal impact to the City as all costs will be covered by the developer.
ATTACHMENTS:
Attach A - Pechanga Tribe CRA [3-14-24].pdf
Attach B - Soboba Tribe CRA [3-14-24].pdf
Attach C - AB 168-Staff PPT Presentation.pdf
Attach D - Applicant-Proj Touch ppt [3-13-24].pptx
456
1 PECHANGA BAND OF INDIANS
P.O. Box 2183, Temecula, CA 92593
CULTURAL RESOURCE TREATMENT
AND DISPOSITION AGREEMENT
This CULTURAL RESOURCE TREATMENT AND DISPOSITION AGREEMENT (“Agreement”) is made and entered into as of March 13, 2024 , b y and between PECHANGA BAND OF INDIANS, a federally recognized Indian tribe (“ Pechanga Band” or “Tribe”) and the City of Wildomar ( “City”). The Pechanga Band and City are sometimes referred to individually as a “Party,” and collectively as the “Parties”.
RECITALS
A. Subject Matter: This Agreement concerns a project located within the City of Wildomar proposed by the project applicant (Project Touch, Ann Unmacht ), commonly referred to as PA 22 -0076 Project Touch Transitional Housing Project (hereinafter referred to as the "P roject") and as more particularly described in Attachment 1 to this Agreement.
B. Purpose: The purpose of this Agreement is to formalize procedures for the treatment and disposition of all Tribal Cultural Resources, ceremonial items, items of cultural patrimony, artifacts and Native American human remains and associated grave goods, in the event that any are found in conjunction with development of the Project, including archaeological studies, excavation, geotechnical investigations, grading and any ground disturbing activities.
This Agreement is entered into after the completion of consultation under Government Code Section 65913.4(b), for the Project.
C. Cultural Affiliation: The P roject is located within the Payómkawichum (Luiseño) Traditional Use Area.
AGREEMENT
I. I ncorporation of Recitals . All of the foregoing Recitals are accurate and are incorporated in this Agreement by reference.
II. T ribal Monitoring. Prior to ministerial approval, and prior to the issuance of a grading permit, the City or Wildomar will require that the project applicant provide evidence that an agreement has been established with the Pechanga Band, to provide tribal monitoring for all Project -related ground disturbing activities. Such contract for monitoring shall incorporate by reference the entirety of the terms and conditions of this Agreement. The project applicant shall submit a copy of a signed 457
2 contract between the Pechanga Band and the project applicant for the monitoring of the P roject to the City Planning Department and to the City Engineering Department. The Tribal m onitor(s) shall have the authority to temporarily divert, redirect, or halt the ground disturbing activities to allow recovery of cultural resources. Tribal monitor(s) shall be required on-site during all ground disturbing activities, including archeological site surveys, grading, stockpiling of materials, engineered fill, rock crushing, etc.
III. Cultural Resources Disposition. In the event that Native American cultural resources are discovered during the course of initial survey or grading (inadvertent discoveries), the following procedures shall be carried out for final disposition of the discoveries:
One or more of the following treatments, in order of preference, shall be employed with the Tribe. Evidence of such shall be provided to the City Planning Department:
a. Preservation-In-Place of the cultural resources, if feasible. Preservation in place means avoiding the resources, leaving them in the place where they were found with no development affecting the integrity of the resources.
b. Reburial of the resources on the Project property. The measures for reburial shall include, at least, the following: Measures and provisions to protect the future reburial area from any future impacts in perpetuity. Reburial shall not occur until all legally required cataloging and basic recordation have been completed, with an exception that sacred items, burial goods and Native American human remains are excluded. Any reburial process shall be culturally appropriate. Listing of contents and location of the reburial shall be included in the confidential Phase IV report. The Phase IV Report shall be filed with the City under a confidential cover and not subject to Public Records Request.
If preservation in place or reburial is not feasible then the resources shall be curated in a culturally appropriate manner at a Riverside County curation facility that meets State Resources Department Office of Historic Preservation Guidelines for the Curation of Archaeological Resources ensuring access and use pursuant to the Guidelines. The collection and associated records shall be transferred, including title, and are to be accompanied by payment of the fees necessary for permanent curation. Evidence of curation in the form of a letter from the curation facility stating that subject archaeological materials have been received and that all fees have been paid, shall be provided by the landowner to the City. There shall be no destructive or invasive testing on sacred items, burial goods and Native American human remains. Results concerning finds of any inadvertent discoveries shall be included in the Phase IV monitoring report.
IV. I nadvertent Archeological Find. If during ground disturbing activities, cultural resources are discovered that were not assessed prior to Project approval, the following procedures shall be followed. Cultural resources are defined as being multiple artifacts in close association with each other, but also include fewer 458
3 artifacts if the area of the find is determined to be of significance due to its sacred or cultural importance as determined in consultation with the Tribe. a. All ground disturbing activities within 100 feet of the discovered cultural resources shall be halted until a meeting is convened between the developer, the archaeologist, the tribal representative(s) and the Planning Director to discuss the significance of the find.
b. At the meeting, the significance of the discoveries shall be discussed and after consultation with the tribal representative(s) and the archaeologist, a decision shall be made, with the concurrence of the Planning Director, as to the appropriate mitigation (documentation, recovery, avoidance, etc.) for the cultural resources.
c. Grading or further ground disturbing activities shall not resume within the area of the discovery until an agreement has been reached by all parties as to the appropriate mitigation. Work shall be allowed to continue outside of the buffer area and will be monitored by additional Tribal monitors if needed. d. Treatment and avoidance of the newly discovered resources shall be consistent with the Cultural Resources Management Plan and Monitoring Agreements entered into with the Tribe. This may include avoidance of the cultural resources through project design, in -place preservation of cultural resources located in native soils and/or re- burial on the Project property so they are not subject to further disturbance in perpetuity , and such location shall not be disclosed, as is identified in section VI of this Agreement, Non - Disclosure of Reburial Location.
e. If the find is determined to be significant and avoidance of the site has not been achieved, a Phase III data recovery plan shall be prepared by the project archeologist, in consultation with the Tribe, and shall be submitted to the City for their review and approval prior to implementation of the said plan. f. Pursuant to Calif. Pub. Res. Code § 21083.2(b) avoidance is the preferred method of preservation for archaeological resources and cultural resources.
If the landowner and the Tribe cannot agree on the significance or the mitigation for the archaeological or cultural resources, these issues will be presented to the Planning Director for decision. The City’s Planning Director shall make the determination, which shall be based on the provisions of the California Environmental Quality Act (“CEQA”) with respect to archaeological resources, as well as the recommendations of the project archeologist , and shall consider the cultural and religious principles and practices of the Tribe.
Notwithstanding any other rights available under the law, the decision of the City Planning Director shall be appealable to the City Planning Commission and/or City Council.”
459
4 V. Human Remains. If human remains are encountered, State Health and Safety Code Section 7050.5 states that no further disturbance shall occur until the Riverside County Coroner has made the necessary findings as to origin. Further, pursuant to State Public Resource Code Section 5097.98(b), remains shall be left in place and free from disturbance until a final decision as to the treatment and disposition has been made. If the Riverside County Coroner determines the remains to be Native American, the State Native American Heritage Commission shall be contacted within the period specified by law (24 hours). Subsequently, the Native American Heritage Commission shall identify the "most likely descendant." The most likely descendant shall then make recommendations and engage in consultation concerning the treatment of the remains as provided in Public Resources Code Section 5097.98.
VI. Non-Disclosure of Reburials Location. It is understood by all parties that unless otherwise required by law, the site of any reburial of Native American human remains or associated grave goods shall not be disclosed and shall not be governed by public disclosure requirements of the California Public Records Act. Pursuant to the specific exemption set forth in California Government Code Section 7927.000, the Coroner, P arties, and Lead Agencies, will be asked to withhold public disclosure information related to such reburial.
VII. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the heirs, successors, representatives, executors, administrators, and assignees of the Parties, including subsequent landowners, developers of the Project area, and any person or entity obligated to comply with the City’s conditions of approval/mitigation measures, of other environmental and cultural or archaeological resource protection laws applicable to the Project.
VIII. Environmental Compliance. Nothing in this Agreement shall excuse the Lead Agencies or the Developer of the Project from its obligation under any applicable state or federal environmental statute, including, but not limited to California Government Code § 65913.4; CEQA and applicable regulations of the CEQA Guidelines; California Public Resources Code § 5097.98, § 5097.99, and § 5097.991; California Health and Safety Code § 7050.5 (c); California Government Code § 6254. Nothing in this Agreement is intended to make any of the above- referenced laws applicable where such laws would otherwise be inapplicable.
IX. Indemnity. The Pechanga Band in no way indemnifies or guarantees the City in any of its legal obligations.
X. Severability. Should any court or agency of competent jurisdiction find any part of this Agreement to be to any extent invalid or unenforceable, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law and shall not be affected thereby.
460
5 XI. Controversies and Claims Subject to Mediation . Any controversy or claim or other matter in question arising out of or related to the Agreement, or the breach thereof, shall be resolved by mediation. Any demand for mediation shall be made within a reasonable time after the controversy or claim or other matter in question has arisen. In no event shall the demand for mediation be made after the date when institution of legal or equitable proceedings based upon such controversy or claim or other matter in question would be barred by the applicable statute of limitations. The Parties shall continue to perform under this Agreement pending the outcome of the mediation. Any controversy or claim or other matter in question not resolved by mediation shall be decided by litigation in a court of competent jurisdiction located in the first instance in the United States District Court for the Central District of California, and if and only if such federal court does not accept jurisdiction, then in any court of competent jurisdiction in the County of Riverside, State of California. Notwithstanding the foregoing, the Pechanga Band does not waive any defenses or rights by entering into this Agreement, including, but not limited to, the defense of sovereign immunity. In the event any mediation, litigation, or other dispute resolution mechanism is commenced by a Party to the Agreement, each Party shall bear its own costs, including attorneys' fees.
XII. Limitation on Scope. This Agreement is unique to the Project only and does not set a precedent for other projects.
XIII. Counterparts. This Agreement may be signed in two or more counterparts and shall be effective when all the Parties and signatories have affixed their signatures to two or more of the counterparts and the counterparts have been delivered to all Parties, at which time the counterparts together will be deemed one original document.
IN WITNESS WHEREOF this Agreement has been executed by the authorized representatives of the parties hereto.
Date: March 13, 2024
PECHANGA BAND OF INDIANS
By: Mark Macarro, Tribal Chairman
Pechanga Band of Indians
461
6 CITY:
CITY OF WILDOMAR
By:
Daniel A. York
City Manager
ATTEST:
By:
Janet Morales, CMC
City Clerk
APPROVED AS TO FORM:
By:
Thomas D. Jex
City Attorney
462
1 SOBOBA BAND OF LUISEÑO INDIANS
P.O. BOX 487, SAN JACINTO, CA 92581
CULTURAL RESOURCE TREATMENT
AND DISPOSITION AGREEMENT
This CULTURAL RESOURCE TREATMENT AND DISPOSITION AGREEMENT (“Agreement”) is made and entered into as of March 13, 2024 , by and between SOBOBA BAND OF LUISEÑO INDIANS, a federally recognized Indian tribe (“Soboba Band” or “Tribe”) and the City of Wildomar (”City”) (Soboba Band and Agency are sometimes referred to individually as a “Party,” and collectively as the “Parties”).
RECITALS
A. Subject Matter: This Agreement concerns a project located within the City of Wildomar proposed by the project applicant ( Project Touch, Ann Unmacht ), commonly referred to as PA 22 -0076 Project Touch Transitional Housing Project (hereinafter referred to as the "project") and as more particularly described in Attachment 1 to this Agreement.
B. Purpose: The purpose of this Agreement is to formalize procedures for the treatment and disposition of all Tribal Cultural Resources, ceremonial items, items of cultural patrimony, artifacts and Native American human remains and associated grave goods, in the event that any are found in conjunction with development of the PA 22- 0076 Project Touch Transitional Housing Project, including archaeological studies, excavation, geotechnical investigations, grading and any ground disturbing activities.
This Agreement is entered into after the completion of consultation under Government Code Section 65913.4(b), for PA 22-0076 Project Touch Transitional Housing Project.
C. Cultural Affiliation: As mentioned previously, this project is located within the Luiseño Traditional Use Area;
AGREEMENT
I. Incorporation of Recitals. All of the foregoing Recitals are accurate and are incorporated in this Agreement by reference.
II. Tribal Monitoring. Prior to ministerial approval, and prior to the issuance of a grading permit, the City or Wildomar will require that the project applicant provide 463
2 evidence that an agreement has been established with the Soboba Band of Luiseno Indians, to provide tribal monitoring for all Project related ground disturbing activities. Such contract for monitoring shall incorporate by reference the entirety of the terms and conditions of this Agreement. The project applicant shall submit a
copy of a signed contract between the Soboba Band and the project applicant for the monitoring of the project to the Planning Department and to the Engineering Department.
The Tribal Monitor(s) shall have the authority to temporarily divert, redirect, or halt the ground- disturbance activities to allow recovery of cultural resources. Tribal monitor(s) shall be required on-site during all ground- disturbing activities, including archeological site surveys, grading, stockpiling of materials, engineered fill, rock crushing, etc.
III. Cultural Resources Disposition. In the event that Native American cultural resources are discovered during the course of initial survey or grading (inadvertent discoveries), the following procedures shall be carried out for final disposition of the discoveries:
One or more of the following treatments, in order of preference, shall be employed with the Tribe. Evidence of such shall be provided to the City of Wildomar Planning Department:
a. Preservation-In-Place of the cultural resources, if feasible. Preservation in place means avoiding the resources, leaving them in the place where they were found with no development affecting the integrity of the resources.
b. Reburial of the resources on the Project property. The measures for reburial shall include, at least, the following: Measures and provisions to protect the future reburial area from any future impacts in perpetuity. Reburial shall not occur until all legally required cataloging and basic recordation have been completed, with an exception that sacred items, burial goods and Native American human remains are excluded. Any reburial process shall be culturally appropriate. Listing of contents and location of the reburial shall be included in the confidential Phase IV report. The Phase IV Report shall be filed with the City under a confidential cover and not subject to Public Records Request.
IV. If preservation in place or reburial is not feasible then the resources shall be curated in a culturally appropriate manner at a Riverside County curation facility that meets State Resources Department Office of Historic Preservation Guidelines for the Curation of Archaeological Resources ensuring access and use pursuant to the Guidelines. The collection and associated records shall be transferred, including title, and are to be accompanied by payment of the fees necessary for permanent curation. Evidence of curation in the form of a letter from the curation facility stating that subject archaeological materials have been received and that all fees have been paid, shall be provided by the landowner to the City. There shall be no destructive or invasive testing on sacred items, burial goods and Native American human remains. Results concerning finds of any inadvertent discoveries shall be included in the Phase IV monitoring report.
464
3 V. I nadvertent Archeological Find. If during ground disturbance activities, cultural resources are discovered that were not assessed prior to project approval, the following procedures shall be followed. Cultural resources are defined, as being multiple artifacts in close association with each other, but also include fewer artifacts if the area of the find is determined to be of significance due to its sacred or cultural importance as determined in consultation with the Tribe. a. All ground disturbance activities within 100 feet of the discovered cultural resources shall be halted until a meeting is convened between the developer, the archaeologist, the tribal representative(s) and the Planning Director to discuss the significance of the find.
b. At the meeting, the significance of the discoveries shall be discussed and after consultation with the tribal representative(s) and the archaeologist, a decision shall be made, with the concurrence of the Planning Director, as to the appropriate mitigation (documentation, recovery, avoidance, etc.) for the cultural resources.
c. Grading of further ground disturbance shall not resume within the area of the discovery until an agreement has been reached by all parties as to the appropriate mitigation. Work shall be allowed to continue outside of the buffer area and will be monitored by additional Tribal monitors if needed. d. Treatment and avoidance of the newly discovered resources shall be consistent with the Cultural Resources Management Plan and Monitoring Agreements entered into with the Tribe. This may include avoidance of the cultural resources through project design, in -place preservation of cultural resources located in native soils and/or re- burial on the Project property so they are not subject to further disturbance in perpetuity as identified in Non- Disclosure of Reburial Condition.
e. If the find is determined to be significant and avoidance of the site has not been achieved, a Phase III data recovery plan shall be prepared by the project archeologist, in consultation with the Tribe, and shall be submitted to the City for their review and approval prior to implementation of the said plan. f. Pursuant to Calif. Pub. Res. Code § 21083.2(b) avoidance is the preferred method of preservation for archaeological resources and cultural resources.
If the landowner and the Tribe cannot agree on the significance or the mitigation for the archaeological or cultural resources, these issues will be presented to the Planning Director for decision. The City’s Planning Director shall make the determination based on the provisions of the California Environmental Quality Act with respect to archaeological resourc es, recommendations of the project archeologist and shall consider the cultural and religious principles and practices of the Tribe. Notwithstanding any other rights available under the law, the decision of the City Planning Director shall be appealable to the City Planning Commission and/or City Council.”
465
4 VI. Human Remains. If human remains are encountered, State Health and Safety Code Section 7050.5 states that no further disturbance shall occur until the Riverside County Coroner has made the necessary findings as to origin. Further, pursuant to Public Resource Code Section 5097.98(b) remains shall be left in place and free from disturbance until a final decision as to the treatment and disposition has been made. If the Riverside County Coroner determines the remains to be Native American, the Native American Heritage Commission shall be contacted within the period specified by law (24 hours). Subsequently, the Native American Heritage Commission shall identify the "most likely descendant." The most likely descendant shall then make recommendations and engage in consultation concerning the treatment of the remains as provided in Public Resources Code Section 5097.98.
VII. Non-Disclosure of Reburials Location. It is understood by all parties that unless otherwise required by law, the site of any reburial of Native American human remains or associated grave goods shall not be disclosed and shall not be governed by public disclosure requirements of the California Public Records Act. The Coroner, pursuant to the specific exemption set forth in California Government Code 6254 (r)., parties, and Lead Agencies, will be asked to withhold public disclosure information related to such reburial, pursuant to the specific exemption set forth in California Government Code 6254 (r).
VIII. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the heirs, successors, representatives, executors, administrators, and assignees of the Parties, including subsequent landowners and developers of the Project area and any person or entity obligated to comply with the City’s conditions of approval/mitigation measures, of other environmental and cultural or archaeological resource protection laws applicable to the Project.
IX. Environmental Compliance . Nothing in this Agreement shall excuse the Lead Agencies or the Developer of the Project from its obligation under any applicable state or federal environmental statute, including, but not limited to California Government Code § 65913.4; CEQA and applicable regulations of the CEQA Guidelines; California Public Resources Code § 5097.98, § 5097.99, and § 5097.991; California Health and Safety Code § 7050.5 (c); California Government Code § 6254. Nothing in this Agreement is intended to make any of the above- referenced laws applicable where such laws would otherwise be inapplicable.
X. Indemnity. The Soboba Band in no way indemnifies or guarantees the City in any of its legal obligations.
XI. Severability. Should any court or agency of competent jurisdiction find any part of this Agreement to be to any extent invalid or unenforceable, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law and shall not be affected thereby.
466
5 XII. Controversies and Claims Subject to Mediation. Any controversy or claim or other matter in question arising out of or related to the Agreement, or the breach thereof, shall be resolved by mediation. Any demand for mediation shall be made within a reasonable time after the controversy or claim or other matter in question has arisen. In no event shall the demand for mediation be made after the date when institution of legal or equitable proceedings based upon such controversy or claim or other matter in question would be barred by the applicable statute of limitations. The Parties shall continue to perform under this Agreement pending the outcome of the mediation. Any controversy or claim or other matter in question not resolved by mediation shall be decided by litigation in a court of competent jurisdiction located in the first instance in the United States District Court for the Central District of California, and if and only if such federal court does not accept jurisdiction, then in any court of competent jurisdiction in the County of Riverside, State of California. Notwithstanding the foregoing, the Soboba Band does not waive any defenses or rights by entering into this Agreement, including, but not limited to, the defense of sovereign immunity. In the event any mediation, litigation, or other dispute resolution mechanism is commenced by a Party to the Agreement, each Party shall bear its own costs, including attorneys' fees.
XIII. Limitation on Scope. This Agreement is unique to the Project only and does not set a precedent for other projects.
XIV. Counterparts. This Agreement may be signed in two or more counterparts and shall be effective when all the Parties and signatories have affixed their signatures to two or more of the counterparts and the counterparts have been delivered to all Parties, at which time the counterparts together will be deemed one original document.
IN WITNESS WHEREOF this Agreement has been executed by the authorized representatives of the parties hereto.
Date: March 13, 2024
SOBOBA BAND OF LUISEÑO INDIANS
By: Isaiah Vivanco, Tribal Chairman
Soboba Band of Luiseño Indians
467
6 CITY:
CITY OF WILDOMAR
By:
Daniel A. York
City Manager
ATTEST:
By:
Janet Morales, CMC
City Clerk
APPROVED AS TO FORM:
By:
Thomas D. Jex
City Attorney
468
AB 168 TRIBAL AGREEMENT
FOR
PROJECT
TOUCH
(
PAR
22 -
0076
)
City Council Meeting
March
13 , 202
4 469
The Applicant submitted an SB 330 Pre-Application Review (PAR) to the City on December 18, 2023, for the Project Touch Transitional Housing proposal.
This submittal triggered the AB 168 “Government-to-Government” consultation process with our 2 local tribes (Pechanga and Soboba Band of Luiseno Indians).
The purpose of the AB 168 Tribal Consultation process is to formalize procedures for the treatment and disposition of Tribal Cultural Resources.
AB 168 only applies to residential projects that will be proposed as an affordable housing project under SB 35, which Project Touch intends to do soon.
AB 168 Background Information:
470
The Planning Department reached out to Pechanga and Soboba by sending a consultation request letter to each on January 9, 2024. Between January 9 and March 13, 2024, the City and Tribes met virtually to discuss procedures for the treatment and disposition of Tribal Cultural Resources as a result of the Project Touch proposal. The result of the consultation process was the preparation of a “Cultural Resource Treatment and Disposition Agreement” between the City and Tribes.
This agreement is virtually the same as the previous AB 168 agreements approved by the Council for the Tres Lagos and Wildomar Cottages affordable housing proposals.
AB 168 Background Information:
471
Some of the main elements of the agreement are summarized as follows:
Tribal Monitoring – Project Touch is required to enter into a separate “Tribal Monitoring Agreement” with Pechanga and Soboba. The City is not a party to this agreement but will require the signed copies before the submittal of their SB 35 application package.
Cultural Resources/Tribal Cultural Resources Disposition– Procedures have been established if Native American tribal cultural resources or cultural resources are discovered during the initial survey or grading activities (i.e., inadvertent discoveries). Inadvertent Archeological Finds – Special procedures have been established if during ground disturbance activities (i.e., grading) cultural resources are discovered. The agreements have been reviewed by both our City Attorney and the Tribes Attorney to ensure compliance with AB 168.
Staff is recommending Council authorize the City Manager to execute the Agreements. A copy of the preliminary site development plans has been provided in the CC agenda packet (Attachment C).
The Project Touch Team will be in attendance to make a presentation on their proposal.
Summary of Tribal Agreements:
472
P r o j e c t
Together
Our
Unity
Conquers
Homelessness
473
474
Project TOUCH
Project TOUCH is a DBA
Gods Fan Club, a Non-Profit 501(c)3
Founded 21 years ago by Anne Unmacht
• Since 2003, Project TOUCH has provided emergency and transitional housing for tens of thousands of people in crisis facing homelessness • Currently providing emergency and transitional housing for approx. 220- 250 people daily:
138 adults (varies)
122 children (varies)
• Housing and services currently provided for Riverside County and in the Cities of:
Wildomar Temecula (Grants)
Murrieta (Contracted) Menifee
Lake Elsinore
475
Demographic of clients served by Project TOUCH
• Single mothers with children
• Victims of domestic violence
• Seniors (fixed income)
• Single fathers with children
• People dealing with mental
health issues
• Single adult women
People of all faiths, ethnicities, beliefs and backgrounds • Victims of human trafficking
• Veterans
• Disabled
• Families
• Emancipated foster youth
• Grandparents with children
• Single adult men
Project TOUCH
476
Client Referrals into Project TOUCH
Clients referred into the program 24 hours/7 days a week by:
• Riverside County Sheriff
• City Police Departments
• Local Hospitals
• School Districts
• Concerned people wanting
to make a difference
• Local businesses
• Local Churches
• Public and Private agencies
• City Council members
• Social Service Agencies
• Department of Public Social
• Services (DPSS)
• Adult Protective Services
• Child Protective Services
• Reunification of children
with parents
Project TOUCH
477
Program Intake
• 21-28 days in emergency
housing
• Client assessment and
screening for program
admittance
• After 21-28 days, client
proceeds to transitional housing
• Transitional housing 1–2 years
(case by case)
• Dedicated case management
staff
Requirements of Clients within
the Program:
• Transitional housing fees (varies
upon placement location)
• Community service requirement:
• 4.5 – 9 hours a month of
community service
• Provides clients an opportunity to
give back
• Creates a sense of purpose
• Savings deposit program
• Assists clients in savings for
transition to permanent housing
Project TOUCH
478
Resources and Referral Services
Provided to Clients
Essential life supplies and needs
• Food
• Hygiene products
• Clothing
• Diapers and Formula
• Fully furnished living units
• Transportation assistance
• Prescription assistance
• Family reunification assistance
• Financial literacy classes
• Parenting classes
• Employment placement services
• Referrals for mental health services
• Referrals for Drug and Alcohol
rehabilitation services
• Domestic violence counselling
• Countywide resource book
for all available resources
• Individualized case management
Project TOUCH
479
Project TOUCH Model
21 years of proven success serving people
facing homelessness
Fiscally self sustaining model
• Transitional housing fees
• Procurement of Grant Funds
• Annual fundraising events
• Thrift Store revenue
• Financial donations
• Community volunteerism and support
• In kind donations
Project TOUCH
Reduction in operating costs through:
• Servient Leadership Structure
• Volunteer staff
• Intake/screening
• Case management
• Onsite supervision
• Day to day operations
• Property repairs
480
Project TOUCH
Good Neighbor Rules
• Strict program rules to ensure respectful, quiet,
peaceful, productive environment for neighbors
and clients
• Curfew
• Zero tolerance for drugs and alcohol
• No outside unauthorized guests
• Frequent property inspections by Project TOUCH
staff
• Collaboration and transparency with neighbors
• Open and proactive communication
with neighbors as needed
• Case managers assigned to every unit
481
Project TOUCH
2023 Murrieta Wildomar Chamber of Commerce “Non-Profit of the Year” Donors/Grantors to Project TOUCH
(partial list)
• US Bank
• Wells Fargo Bank
• Pacific Premier Bank
• Banner Bank
• Costco
• In-N-Out
• Chick Fil A
• Home Depot
• Lowes
• Sam’s Club
• Ranpac/Ranpac Self Storage
• Best buy
• Local Churches
• Cornerstone Church
• United Way
• The Weingart Foundation
• Make a Difference Foundation
• HomeAide Inland Empire
• Walmart
• FFF enterprises
• Milguard Windows
• Quiet Cool
• Albertson’s
• Stater Bros.
• Riverside County Sheriff Chad
Bianco
• Temecula Wineries
• Local Businesses
• City of Murrieta
• City of Temecula
• County or Riverside
• Rotary
• Pechanga
• Southwest Healthcare
• Make a Difference Foundation
• Local car dealerships (BMW,
Toyota, Chevrolet, Hyundai)
• Riverside Community
Foundation’
• Temecula Promenade Mall
• Local Restaurants
• Corman Leigh Communities
482
483
CITY OF WILDOMAR
CC - REGULAR MEETING
GENERAL BUSINESS
Agenda Staff Report # 3.2
Meeting Date: March 13, 2024
SUBJECT:
California Constitutional Initiative No. 21-0042A1, The Taxpayer Protection and Government Accountability Act
SUBMITTED BY:
Daniel A York
PREPARED BY:
Daniel A York
ACTION:
Discuss and provide direction to bring back a Resolution opposing the Taxpayer Protection and Government Accountability Act
SUMMARY:
The Taxpayer Protection and Government Accountability Act would revise the California Constitution with provisions that limit voters’ authority and input, adopt new and stricter rules for raising taxes and fees, and may make it more difficult to impose fines and penalties for violation of state and local laws.
The measure puts billions of local government tax and fee revenues at risk statewide with related core public service impacts.
The proposed constitutional initiative is sponsored by the California Business Roundtable.
BACKGROUND:
On Jan. 4, 2022, the California Business Roundtable filed the “Taxpayer Protection and Government Accountability Act” or AG# 21-0042A1.
On Feb. 1, 2023, the measure qualified for the November 2024 ballot.
The League of California Cities, along with a broad coalition of local governments, labor and public safety leaders, infrastructure advocates, and businesses, strongly opposes this initiative.
The League of California Cities has requested local agencies adopt a Resolution opposing the 484
Taxpayer Protection and Government Accountability Act.
DISCUSSION:
Local government revenue-raising authority is currently substantially restricted by state statute and constitutional provisions, including the voter approved provisions of Proposition 13 of 1978, Proposition 218 of 1996, and Proposition 26 of 2010. The Taxpayer Protection and Government Accountability Act adds and expands restrictions on voters and local government tax and fee authority.
Fees and Taxes
Local governments levy a variety of fees and other charges to provide core public services.
Major examples of affected fees and charges are:
• Nuisance abatement charges, such as for weed, rubbish, and general nuisance abatement to fund community safety, code enforcement, and neighborhood cleanup programs. • Commercial franchise fees.
• Emergency response fees, such as in connection with DUI. • Advanced Life Support (ALS) transport charges.
• Document processing and duplication fees.
• Transit fees, tolls, parking fees, and public airport and harbor use fees. • Facility use charges, fees for parks and recreation services, garbage disposal tipping fees.
Virtually every city, county, and special district must regularly (e.g., annually) adopt increases to fee rates and charges and revise rate schedules to accommodate new users and activities.
Most of these would be subject to new standards and limitations under threat of legal challenge. Based on the current volume of fees and charges imposed by local agencies, including council-adopted increases to simply accommodate inflation, Cal Cities estimates the amount of local government fee and charge revenue at risk is approximately $2 billion per year including those adopted since Jan. 1, 2022. Over ten years, $20 billion of local government fee and charge revenues will be at heightened legal peril.
Hundreds of local tax measures were approved in 2022 that likely do not comply with the provisions of the initiative. Nearly $2 billion of annual revenues from these voter-approved measures will cease a year after the effective date of the measure, reducing the local public services funded by these measures, unless the tax is re-submitted for voter approval.
Reductions on local government tax revenues have impacts on core services and infrastructure including fire and emergency response, law enforcement, streets and roads, drinking water, sewer sanitation, parks, libraries, affordable housing, homelessness prevention, and mental health services.
485
Fines and Penalties
Under existing law, cities are required to provide due process before imposing a penalty or fine for violation of its municipal code:
1. A local agency must adopt administrative procedures that govern imposing fines and penalties, including providing a reasonable period of time for a person responsible for a continuing violation to correct or remedy the violation [Gov't Code 53069.4].
2. Notice must be given to the violating party before imposing the penalty; and give the party an opportunity to be heard and present any facts or arguments [Merco Construction Engineers v. Los Angeles Unified School District (1969) 274 CA 2d 154, 166].
3. The fine may not be "excessive" [U.S. Constitution amendments VIII and XIV].
The initiative converts administratively-imposed fines and penalties into taxes unless a new, undefined, and ambiguous “adjudicatory due process” is followed. This provision may put at risk authority to impose fines and penalties for violations of state and local law.
FISCAL IMPACT:
There is no Fiscal Impact discussing the proposed initiative. The League of California Cities estimates that the Taxpayer Protection and Government Accountability Act will take billions of dollars away from local government services statewide.
ATTACHMENTS:
21-0042A1 (Taxes).pdf
486
BELL, McANDREWS & HILTACHK, LLP
Anabel Renteria
Initiative Coordinator
ATTORNEYS AND COUNSEL-ORS AT I.AW
455 C APIT O L MALL , S UITE 600
SACRAMENT O, CALIFOE=INIA 95014
(916) 44;a-7757
FA X [916) 44-;a-7 7 59
www.bmhlaw. com
January 4, 2022
2 1 - 0 0 4 2
RECEIVED
JAN O 4 2022
Office of the Attorney General
State of California
INITIATIVE COORDINATOR
ATTORNEY GENERAL'S OFFICE
PO Box 994255
Sacramento, CA 94244-25550
Re: Initiative 21-0042 - Amendment Number One
Dear Initiative Coordinator:
Pursuant to subdivision (b) of Section 9002 of the Elections Code, enclosed please find Amendment #1 to Initiative No. 21-0042 "The Taxpayer Protection and Government Accountability Act." The amendments are reasonably germane to the theme, purpose or subject of the initiative measure as originally proposed .
I am the proponent of the measure and request that the Attorney General prepare a circulating title and summary of the measure as provided by law, using the amended language.
Thank you for your time and attention processing my request.
Sincerely,
~~
Thomas W. Hiltachk
487
2 1 - 0 0 4 2 Arndt. # /
The Taxpayer Protection and Government Accountability Act [Deleted codified text is denoted in strikeout. Added codified text is denoted by italics and underline.] Section 1. Title
This Act shall be known, and may be cited as, the Taxpayer Protection and Government Accountability Act.
Section 2. Findings and Declarations
(a) Californians are overtaxed. We pay the nation's highest state income tax, sales tax, and gasoline tax. According to the U.S. Census Bureau, California's combined state and local tax burden is the highest in the nation. Despite this, and despite two consecutive years of obscene revenue surpluses, state politicians in 2021 alone introduced legislation to raise more than $234 billion in new and higher taxes and fees.
(b) Taxes are only part of the reason for California's rising cost-of-living crisis. Californians pay billions more in hidden "fees" passed through to consumers in the price they pay for products, services, food, fuel, utilities and housing. Since 2010, government revenue from state and local "fees" has more than doubled.
(c) California's high cost of living not only contributes to the state's skyrocketing rates of poverty and homelessness, they are the pushing working families and job-providing businesses out of the state. The most recent Census showed that California's population dropped for the first time in history, costing us a seat in Congress. In the past four years, nearly 300 major corporations relocated to other states, not counting thousands more small businesses that were forced to move, sell or close. (d) California voters have tried repeatedly, at great expense, to assert control over whether and how taxes and fees are raised. We have enacted a series of measures to make taxes more predictable, to limit what passes as a "fee," to require voter approval, and to guarantee transparency and accountability. These measures include Proposition 13 (1978), Proposition 62 (1986), Proposition 218 (1996), and Proposition 26 (2010).
(e) Contrary to the voters' intent, these measures that were designed to control taxes, spending and accountability , have been weakened and hamstrung by the Legislature, government lawyers, and the courts, making it necessary to pass yet another initiative to close loopholes and reverse hostile court decisions.
Section 3. Statement of Purpose
(a) In enacting this measure, the voters reassert their right to a voice and a vote on new and higher taxes by requiring any new or higher tax to be put before voters for approval. Voters also intend that all fees and other charges are passed or rejected by the voters themselves or a governing body elected by voters and not unelected and unaccountable bureaucrats.
(b) Furthermore, the purpose and intent of the voters in enacting this measure is to increase transparency and accountability over higher taxes and charges by requiring any tax measure placed on the ballot- 1 488
either at the state or local level-to clearly state the type and rate of any tax, how long it will be in effect , and the use of the revenue generated by the tax.
(c) Furthermore, the purpose and intent of the voters in enacting this measure is to clarify that any new or increased form of state government revenue, by any name or manner of extraction paid directly or indirectly by Californians, shall be authorized only by a vote of the Legislature and signature of the Governor to ensure that the purposes for such charges are broadly supported and transparently debated. (d) Furthermore, the purpose and intent of the voters in enacting this measure is also to ensure that taxpayers have the right and ability to effectively balance new or increased taxes and other charges with the rapidly increasing costs Californians are already paying for housing, food, childcare, gasoline, energy , healthcare, education, and other basic costs of living, and to further protect the existing constitutional limit on property taxes and ensure that the revenue from such taxes remains local, without changing or superseding existing constitutional provisions contained in Section 1{c) of Article XIII A. (e) In enacting this measure, the voters also additionally intend to reverse loopholes in the legislative two thirds vote and voter approval requirements for government revenue increases created by the courts includin g, but not limited to, Cannabis Coalition v. City of Upland, Chamber of Commerce v. Air Resources Board, Schmeer v. Los Angeles County, Johnson v. County of Mendocino, Citizens Assn. of Sunset Beach v.
Orange County Local Agency Formation Commission, and Wilde v. City of Dunsmuir.
Section 4. Section 3 of Article XIII A of the California Constitution is amended to read:
Sec. 3(a} Every levy, charge. or exaction of any kind imposed by state law is either a tax or an exempt charge.
illlJ1l ~ Any change in state statute Jaw which results in any taxpayer paying a new or higher tax must be imposed by an act passed by not less than two-thirds of all members elected to each of the two houses of the Legislature , and submitted to the electorate and approved by a maiority vote, except that no new ad valorem taxes on real property, or sales or transaction taxes on the sales of real property, may be imposed. Each Act shall include:
(A) A specific duration of time that the tax will be imposed and an estimate of the annual amount expected to be derived from the tax.
(BJ A specific and legally binding and enforceable limitation on how the revenue from the tax can be spent.
If the revenue from the tax can be spent for unrestricted general revenue purposes. then a statement that the tax revenue can be spent for "unrestricted general revenue purposes" shall be included in a separate, stand-alone section. Any proposed change to the use of the revenue from the tax shall be adopted by a separate act that is passed by not less than two-thirds of all members elected to each of the two houses of the Legislature and submitted to the electorate and approved by a maiority vote. (2) The title and summary and ballot label or question required for a measure pursuant to the Elections Code shall. for each measure providing for the imposition of a tax, including a measure proposed by an elector pursuant to Article II, include:
{A) The type and amount or rate of the tax;
(BJ The duration of the tax: and
2 489
(CJ The use of the revenue derived from the tax.
(c} Any change in state law which results in any taxpayer paying a new or higher exempt charge must be imposed by an act passed by each of the two houses of the Legislature. Each act shall specify the type of exempt charge as provided in subdivision (e ), and the amount or rate of the exempt charge to be imposed.
Ml._fbt As used in this section and in Section 9 of Article II, "tax" means every aA1f levy, charge, or exaction of any kind imposed by the State state law that is not an exempt charge. e1<eept the follo•Ning:
(e) As used in this section. "exempt charge" means only the following:
(1) a el:iarge imposes fer a s1=1eeifie eenefit eonferreEl or pri'+'ilege granteEl aireetly to tl:ie 13ayor tl:iat is not 1=1ro>viaeEl to tl:iose not et:iargeEI, anEI whiel:i aoes not e1<ceeEl tl:ie reasonal3Ie costs to tl:ie State of eonferring the benefit or granting the pri¥ilege to the 1=1a¥OF.
ill {-2+ A reasonable charge irnposeEl for a specific government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the rnasonable actual costs to the State of providing the service or product to the payor. f.11 ~ A charge in,poseEl for the reasonable regulatory costs to the State incident to issuing licenses and permits, performing investigations, inspections, and audits, enforcing agricultural marketing orders, and the administrative enforcement and adjudication thereof. (3) A levy, charge. or exaction collected from local units of government. health care providers or health care service plans that is primarily used by the State of California for the purposes of increasing reimbursement rates or payments under the Medi-Cal program, and the revenues of which are primarily used to finance the non-federal portion of Medi-Cal medical assistance expenditures. (4) A reasonable charge iR'l13oseEl for entrance to or use of state property, or the purchase. rental, or lease of state property, except charges governed by Section 15 of Article XI. (5} A fine, or penalty, or other monetary el:large including any applicable interest for nonpayment thereot imposed by the judicial branch of government or the State, as a result of a state administrative enforcement agency pursuant to adiudicatorv due process, to punish a violation of law. (6} A levy, charge, assessment, or exaction collected for the promotion of California tourism pursuant to Chapter 1 (commencing with Section 13995) of Part 4.7 of Division 3 of Title 2 of the Government Code. flL~Any tax or exempt charge adopted after January 1, 2022 ~, but prior to the effective date of this act, that was not adopted in compliance with the requirements of this section is void 12 months after the effective date of this act unless the tax or exempt charge is reenacted B'l the begislatuFe anel signea into law ey tl:ie <iio¥ernoF in compliance with the requirements of this section. [gl[.JlJG:} The State bears the burden of proving by a preponEleranee oftl:le clear and convincing evidence that a levy, charge, or other exaction is an exempt charge and not a tax. The State bears the burden of proving by clear and convincing evidence that the amount of the exempt charge is reasonable and that the amount charged does not exceed the actual cost of providing the service or product to the payor. ,tR-a-t tl:ie amouRt is RO n,ore tl:ian neeessary to cover the reasonable costs of the go•.•emn,ental actii,•i:t>,• ane 3 490
that the manner in •Nhiel.:i these cests are allecated ts a pa·1er bear a fair er reasenable relatienshi13 ts the 13a·1or's b1:1relens on, or benefits reeei11eel from, the go•.ieFRmental actit.iit'( (2) The retention ofrevenue by, or the payment to. a non-governmental entity ofa levv. charge, or exaction of any kind imposed by state law, shall not be a factor in determining whether the levy. charge, or exaction is a tax or exempt charge.
(3) The characterization of a levy, charge, or exaction of any kind as being voluntary, or paid in exchange for a benefit, privilege, allowance, authorization, or asset, shall not be a factor in determining whether the levy, charge, or exaction is a tax or an exempt charge. /4} The use of revenue derived from the levy, charge or exaction shall be a factor in determining whether the levy, charge, or exaction is a tax or exempt charge. (h) As used in this section:
(1) "Actual cost" of providing a service or product means: (i) the minimum amount necessary to reimburse the government for the cost of providing the service or product to the payor, and {ii) where the amount charged is not used by the government for any purpose other than reimbursing that cost. In computing "actual cost" the maximum amount that may be imposed is the actual cost less all other sources of revenue including, but not limited to taxes, other exempt charges, grants, and state or federal funds received to provide such service or product.
(2) "Extend" includes, but is not limited to, doing any of the following with respect to a tax or exempt charge: lengthening its duration. delaying or eliminating its expiration, expanding its application to a new territory or class ofpayor, or expanding the base to which its rate is applied. (3) "Impose" means adopt, enact, reenact, create, establish, collect, increase or extend. (4) "State law" includes, but is not limited to. any state statute, state regulation, state executive order. state resolution, state ruling, state opinion Jetter, or other legal authority or interpretation adopted, enacted. enforced, issued, or implemented by the legislative or executive branches of state government. "State law" does not include actions taken by the Regents of the University of California, Trustees of the California State University, or the Board of Governors of the California Community Colleges.
Section 5. Section 1 of Article XIII C of the California Constitution is amended, to read:
Sec. 1. Definitions. As used in this article:
{a) "Actual cost" of providing a service or product means: (i) the minimum amount necessary to reimburse the government for the cost of providing the service or product to the payor. and {ii) where the amount charged is not used by the government for any purpose other than reimbursing that cost. In computing "actual cost" the maximum amount that may be imposed is the actual cost less all other sources of revenue including, but not limited to taxes. other exempt charges, grants, and state or federal funds received to provide such service or product.
(b) "Extend" includes, but is not limited to. doing any of the following with respect to a tax. exempt charge, or Article XIII D assessment. fee, or charge: lengthening its duration, delaying or eliminating its expiration. expanding its application to a new territory or class of payor, or expanding the base to which its rate is applied.
4 491
.lfl..W
11 General tax" means any tax imposed for general governmental purposes. (d} "Impose" means adopt, enact, reenact, create, establish, collect, increase, or extend. {clJb} "Local government" means any county, city, city and county, including a charter city or county, any special district, or any other local or regional governmental entity, or an elector pursuant to Article fl or the initiative power provided by a charter or statute . (f) "Local law" includes. but is not limited to, any ordinance, resolution, regulation. ruling, opinion letter, or other legal authority or interpretation adopted, enacted, enforced, issued, or implemented by a local government.
{gl_{t} "Special district" means an agency of the State, formed pursuant to general law or a special act, for the local performance of governmental or proprietary functions with limited geographic boundaries including, but not limited to, school districts and redevelopment agencies. f11L{d} "Special tax" means any tax imposed for specific purposes, including a tax imposed for specific purposes, which is placed into a general fund.
111 i@} As used in this article, and in Section 9 of Article II, "tax" means every aRV-levy, charge, or exaction of any kind, imposed by a local go,;ernmeRt law that is not an exempt charge., exeept tl=le fellowiRg:
(i) As used in this section, "exempt charge" means only the following:
(1) A cl=large imposeel fer a speeifie beAefit eoAferreel or pri,;ilege graAteel eliFeetl')' to tl=le pa1,ior tl=lat is Rot pre1,•ieleel to these Rot ehargea, aA£l which £lees Rot exeeeel tl=le reaseAable costs to tl=le loeal gm,·ernFAeAt of conferriAg the beAefit or graAting tl:1e pri¥ilege.
ill R} A reasonable charge imposes for a specific local government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasoAable actual costs to the local government of providing the service or product. fl1 WA charge im13ose£l for the reasonable regulatory costs to a local government for issuing licenses and permits, performing investigations, inspections, and audits, enforcing agricultural marketing orders, and the administrative enforcement and adjudication thereof.
W {4t A reasonable charge imposeel for entrance to or use of local government property, or the purchase, rental, or lease of local government property.
Ml. fSt A fine, or penalty, or other FAOA@tar,· eharge including any applicable interest for nonpayment thereat imposed by the judicial branch of government or a local government administrative enforcement agency pursuant to adiudicatorv due process, as a res1,1lt of to punish a violation of law. ill -f6t A charge imposed as a condition of property development. No levv, charge, or exaction regulating or related to vehicle miles traveled may be imposed as a condition of property development or occupancy. f.i1 f7t An AssessFAeRts a Rel property relate el fees assessment. fee. or charge imJ;1oseel iA aeeoraanee witl=l the pro¥isio A5 of subject to Article XI 11 D, or an assessment imposed upon a business in a tourism marketing district, a parking and business improvement area, or a property and business improvement district. 5 492
(7) A charge imposed for a specific health care service provided directly to the payor and that is not provided to those not charged. and which does not exceed the reasonable costs to the local government of providing the health care service. As used in this paragraph, a "health care service" means a service licensed or exempt from licensure by the state pursuant to Chapters 1. 1.3, or 2 of Division 2 of the Health and Safety Code.
The local government bears the b1:1rden of proving by a preponderance of the e .. ·ielence that a lew, charge, or other exaction is not a ta1<, that the amo1:1nt is no more than necessaPJ' to cover the reasonable costs of the go•,ernfflental acti•.«ity anel that tJ:ie manner in which those costs are allocateel to a pa•ror bear a fair or reasonable relationship to the pa•ror's blslrdens on, or bene:fits receiveel from, the go1a1ernmental acfa•ity.
Section 6. Section 2 of Article XIII C of the California Constitution is amended to read :
Sec. 2. Local Government Tax Limitation. Notwithstanding any other provision of this Constitution:
(a) Every levy. charge. or exaction of any kind imposed by local law is either a tax or an exempt charge. All taxes imposed by any local government shall be deemed to be either general taxes or special taxes. Special purpose districts or agencies, including school districts, shall have no power to levy general taxes. (b) No local Jaw go,.·ernment whether proposed by the governing body or by an elector, may impose, extend, or increase any general tax unless and until that tax is submitted to the electorate and approved by a majority vote. A general tax shall not be deemed to have been increased if it is imposed at a rate not higher than the maximum rate so approved. The election required by this subdivision shall be consolidated with a regularly scheduled general election for members of the governing body of the local government, except in cases of emergency declared by a unanimous vote of the governing body. (c) An•r general tax imposed, el<tended, or increaseel, •.-.iitho1:1t •.·oter approval, lay any local go,.·ernment on or after Janlslary 1, 1995, ana prior ta the effecti,.·e date of this article, shall contin1:1e to be imposed only if appro,.·ea b1• a majority vote of the voters voting in an election OR the issye of the in:iposition, whicl::i election sl::iall be l::ield witl::iin t•Ne 1•ears ef the effectii.ie date of this article and in com13liance with slslbdi\·isien (b}. {El) No local law government. whether proposed by the governing body or by an elector. may impose, eMteRd, er increase any special tax unless and until that tax is submitted to the electorate and approved by a two-thirds vote. A special tax shall not be deemed to have been increased if it is imposed at a rate not higher than the maximum rate so approved. {d) The title and summary and ballot label or question required for a measure pursuant to the Elections Code shall. for each measure providing for the imposition of a tax, include:
(1) The type and amount or rate of the tax;
(2) the duration of the tax; and
(3) The use of the revenue derived from the tax. If the proposed tax is a general tax. the phrase "for general government use" shall be required, and no advisory measure may appear on the same ballot that would indicate that the revenue from the general tax will. could. or should be used for a specific purpose. (e) Only the governing body of a local government. other than an elector pursuant to Article II or the initiative power provided by a charter or statute. shall have the authority to impose any exempt charge.
The governing body shall impose an exempt charge by an ordinance specifying the type of exempt charge 6 493
as provided in Section l(i) and the amount or rate of the exempt charge to be imposed. and passed by the governing body. This subdivision shall not apply to charges specified in paragraph (7) of subdivision (i) of Section 1.
ff) No amendment to a Charter which provides for the imposition, extension, or increase of a tax or exempt charge shall be submitted to or approved by the electors. nor shall any such amendment to a Charter hereafter submitted to or approved by the electors become effective for any purpose. (q) Any tax or exempt charge adopted after January 1, 2022, but prior to the effective date of this act, that was not adopted in compliance with the requirements of this section is void 12 months after the effective date of this act unless the tax or exempt charge is reenacted in compliance with the requirements of this section.
{h)(1) The focal government bears the burden of proving by clear and convincing evidence that a levy, charge or exaction is an exempt charge and not a tax. The local government bears the burden of proving by clear and convincing evidence that the amount of the exempt charge is reasonable and that the amount charged does not exceed the actual cost of providing the service or product to the payor. (2} The retention of revenue by, or the payment to, a non-governmental entity of a levy. charge, or exaction of any kind imposed by a local law, shall not be a factor in determining whether the levy, charge, or exaction is a tax or exempt charge.
(3) The characterization of a levy. charge. or exaction of any kind imposed by a local law as being paid in exchange for a benefit. privilege, allowance, authorization, or asset, shall not be factors in determining whether the levy, charge, or exaction is a tax or an exempt charge. (4) The use of revenue derived from the levy, charge or exaction shall be a factor in determining whether the levy, charge, or exaction is a tax or exempt charge.
Section 7. Section 3 of Article XIII D of the California Constitution is amended, to read:
Sec. 3. Property Taxes, Assessments, Fees and Charges Limited (a) No tax, assessment, fee, 6f charge, or surcharge, including a surcharge based on the value ofpropertv, shall be assessed 13y a Ry ageRC'f upon any parcel of property or upon any person as an incident of property ownership except:
(1) The ad valorem property tax impeseEI p1::1rsYaRt te described in Section 1(a) of Article XIII and Section 1/a) of Article XIII A, and described and enacted pursuant to the voter approval requirement in Section 1/b) Q[Article XII I A.
(2) Any special non-ad valorem tax receiving a two-thirds vote of qualified electors pursuant to Section 4 of Article XIII A, or after receiving a two-thirds vote of those authorized to vote in a community facilities district by the Legislature pursuant to statute as it existed on December 31, 2021. (3) Assessments as provided by this article.
(4) Fees or charges for property related services as provided by this article. 7 494
(b) For purposes of this article, fees for the provision of electrical or gas service shall not be deemed charges or fees imposed as an incident of property ownership.
Section 8. Sections 1 and 14 of Article XIII are amended to read:
Sec. 1 Unless otherwise provided by this Constitution or the laws of the United States:
(a) All property is taxable and shall be assessed at the same percentage of fair market value. When a value standard other than fair market value is prescribed by this Constitution or by statute authorized by this Constitution, the same percentage shall be applied to determine the assessed value. The value to which the percentage is applied, whether it be the fair market value or not, shall be known for property tax purposes as the full value.
(b) All property so assessed shall be taxed in proportion to its full value. (c) All proceeds from the taxation of property shall be apportioned according to law to the districts within the counties.
Sec. 14. All property taxed by state or local government shall be assessed in the county, city, and district in which it is situated. Notwithstanding any other provision of/aw, such state or local property taxes shall be apportioned according to law to the districts within the counties.
Section 9. General Provisions
A. This Act shall be liberally construed in order to effectuate its purposes.
B. (1) In the event that this initiative measure and another initiative measure or measures relating to state or local requirements for the imposition, adoption, creation, or establishment of taxes, charges, and other revenue measures shall appear on the same statewide election ballot, the other initiative measure or measures shall be deemed to be in conflict with this measure. In the event that this initiative measure receives a greater number of affirmative votes, the provisions of this measure shall prevail in their entirety, and the provisions ofthe other initiative measure or measures shall be null and void. (2) In furtherance of this provision, the voters hereby declare that this measure conflicts with the provisions of the "Housing Affordabili ty and Tax Cut Act of 2022" and "The Tax Cut and Housing Affordability Act," both of which would impose a new state property tax (called a "surcharge") on certain real property, and where the revenue derived from the tax is provided to the State, rather than retained in the county in which the property is situated and for the use of the county and cities and districts within the county, in direct violation of the provisions of this initiative. (3) If this initiative measure is approved by the voters, but superseded in whole or in part by any other conflicting initiative measure approved by the voters at the same election, and such conflicting initiative is later held invalid, this measure shall be self-executing and given full force and effect.
C. The provisions of this Act are severable. If any portion, section, subdivision, paragraph, clause, sentence, phrase, word, or application of this Act is for any reason held to be invalid by a decision of any court of competent jurisdiction, that decision shall not affect the validity of the remaining portions of this Act. The People of the State of California hereby declare that they would have adopted this Act and each and every portion, section, subdivision, paragraph, clause, sentence, phrase, word, and application not 8 495
declared invalid or unconstitutional without regard to whether any portion of this Act or application thereof would be subsequently declared invalid.
D. If this Act is approved by the voters of the State of California and thereafter subjected to a legal challenge alleging a violation of state or federal law, and both the Governor and Attorney General refuse to defend this Act, then the following actions shall be taken:
(1) Notwithstanding anything to the contrary contained in Chapter 6 of Part 2 of Division 3 ofTitle 2 of the Government Code or any other law, the Attorney General shall appoint independent counsel to faithfully and vigorously defend this Act on behalf of the State of California. (2) Before appointing or thereafter substituting independent counsel, the Attorney General shall exercise due diligence in determining the qualifications of independent counsel and shall obtain written affirmation from independent counsel that independent counsel will faithfully and vigorously defend this Act. The written affirmation shall be made publicly available upon request. (3) A continuous appropriation is hereby made from the General Fund to the Controller, without regard to fiscal years, in an amount necessary to cover the costs of retaining independent counsel to faithfully and vigorously defend this Act on behalf of the State of California. (4) Nothing in this section shall prohibit the proponents of this Act, or a bona fide taxpayers association, from intervening to defend this Act.
9 496
CITY OF WILDOMAR
CC - REGULAR MEETING
FUTURE AGENDA ITEMS
Meeting Date: March 13, 2024
SUBJECT:
Future Agenda Items
SUBMITTED BY:
Janet Morales
ACTION:
Title- Councilmember-Anticipated Date
1. Catalytic Converter Ordinance - DePhillippo - TBD
497
CITY OF WILDOMAR
CC - REGULAR MEETING
CONSENT CALENDAR
Agenda Staff Report # 1.1
Meeting Date: March 13, 2024
SUBJECT:
December 13, 2023 - City Council/ Cemetery Regular Minutes SUBMITTED BY:
Janet Morales
ACTION:
Approve the minutes as presented.
ATTACHMENTS:
1. Minutes
498
MINUTES
CITY OF WILDOMAR
CITY COUNCIL/CEMETERY DISTRICT
WEDNESDAY, DECEMBER 13, 2023
COUNCIL CHAMBERS
23873 CLINTON KEITH ROAD SUITE 106
WILDOMAR, CA, 92595
Closed Session: 5:30 PM | Regular Session 6:00 PM
CALL TO ORDER – CLOSED SESSION - 5:30 P.M.
The Regular Closed Session was called to order by Mayor Morabito at 5:30 p.m.
ROLL CALL
Members in attendance: Joseph Morabito, Ashlee DePhillippo, Bridgette Moore, and Carlos Marquez
Members absent: Dustin Nigg
PUBLIC COMMENTS
There were no public comments.
CLOSED SESSION
The City Council will meet in closed session pursuant to the provisions of Government Code Section 54956.9 (d)(1) to confer with legal counsel with regard to the following matter of pending litigation:
Andrew Lee Haire et al v. Miguel Angel Barraza et al; Case Number: CVSW2308832
RECONVENE INTO OPEN SESSION
The City Council reconvened into open session at 6:00 p.m. with all members present except for Councilmember Nigg.
ANNOUNCEMENTS
City Attorney Jex stated that the City Council voted unanimously, 4-0, to defend the litigation matter that is listed on the agenda.
ADJOURN CLOSED SESSION
There being no further business, Mayor Morabito adjourned the Closed Session at 6:00 p.m
CALL TO ORDER – REGULAR SESSION - 6:00 P.M.
The Regular Meeting of the Wildomar City Council was called to order by Mayor Morabito at 6:02 p.m.
ROLL CALL
Members in attendance: Joseph Morabito, Ashlee DePhillippo, Bridgette Moore, and Carlos Marquez
Members absent: Dustin Nigg
499
Staff in attendance: City Manager York, City Attorney Jex, Deputy City Clerk Jemane, Community Development Director Bassi, Economic Development Director Davidson, Public Works Director Farag, Administrative Services Director Schrader, Community Services Director Torres, Finance Manager Jantz, Code Enforcement Supervisor Berroteran and Human Resources/Risk Manager Wolf
FLAG SALUTE
The flag salute was led by Jason Escalera.
PRESENTATIONS
1. Tri-City Gators Recognition, Junior Marines Recognition
2. Holiday Lights Contest Winners
3. City Hall Dedication Ribbon Cutting
DEPARTMENT REPORTS
General Plan Update Progress Report #18
Community Development Director Bassi presented the report.
PUBLIC COMMENTS
The following individuals provided public comment on items not on the agenda:
1. Andy Morris, Wildomar Rotary
2. Gayl Taylor, Resident
3. Rosalba Valdovinos, Resident
4. Sandy Renfrow, Resident
COUNCIL COMMUNICATIONS
The City Council members spoke regarding various committees, comm1ss1ons, and boards that they serve on locally and regionally and community events including:
1. Riverside Conservation Authority (RCA)
2. Riverside Transit Agency (RTA)
3. Riverside County Transportation Commission (RCTC)
4 League of California Cities
5. Southern California Association of Governments (SCAG)
6. Riverside County Habitat Conservation Agency (RCHCA)
7. Western Riverside Council of Governments (WRCOG)
8. Southwest Community Financing Authority (Animal Shelter)
9. Ad Hoc & Subcommittees
10. Community events
11 . Regional events
12. Chamber of Commerce
APPROVAL OF THE AGENDA AS PRESENTED
Moved by Bridgette Moore; seconded by Carlos Marquez to approve the agenda as presented.
Motion Approved: 4 - 0
Voting For: Joseph Morabito, Ashlee DePhillippo, Bridgette Moore, Carlos Marquez Voting Against: None
Abstain: None
Absent: Dustin Nigg
1) CONSENT CALENDAR
Moved by Bridgette Moore; seconded by Carlos Marquez to approve the Consent Calendar.
Motion Approved: 4 - 0
Voting For: Joseph Morabito, Ashlee DePhillippo, Bridgette Moore, Carlos Marquez Voting Against: None 500
Abstain: None
Absent: Dustin Nigg
1.1) Reading of Ordinances
Approved the reading by title only of all Ordinances on this agenda.
1.2) City Council/Cemetery District Minutes - August 9, 2023.
Approved the minutes as presented.
1.3) Warrant Register November 2023
Approved the following:
For Fiscal Year 2022/2023
Warrant Register dated 11-02-2023 in the amount of $3,675 Warrant Register dated 11-09-2023 in the amount of $569 Warrant Register dated 11-16-2023 in the amount of $6,555.75
For Fiscal Year 2023/2024
Warrant Register(s) dated 11-02-2023 in the amount of $412,058.42 Warrant Register dated 11-09-2023 in the amount of $740,986.55 Warrant Register dated 11-16-2023 in the amount of $187,708.81 Warrant Register dated 11-20-2023 in the amount of $126.00 Warrant Register(s) dated 11-22-2023 in the amount of $150,417.04 Warrant Register dated 11-30-2023 in the amount of $749,560.89 Wire Transfer Register dated 11-30-2023 in the amount of $509,654.73 Payroll Register dated 12-01-2023 in the amount of $236,230.87
1.4) October 2023 City Treasurers Report
Approved the Treasurer’s Report for October 2023
1.5) Tres Lagos Apartments, Phase 2 - Precise Grading Agreement, Stormwater Management/BMP Agreements, and Public Improvement Agreement Authorized the City Manager to execute the Precise Grading Agreement, Stormwater Management/BMP Agreements for privately maintained and CFD maintained facilities, and Public Improvement Agreement with Wildomar Tres Lagos Partners LP.
1.6) Adopt the City of Wildomars Local Hazard Mitigation Plan (LHMP) Annex Adopted a Resolution entitled:
RESOLUTION NO. 2023 - 74
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WILDOMAR, CALIFORNIA
APPROVING THE CITY OF WILDOMAR LOCAL HAZARD MITIGATION PLAN ANNEX
FROM THE RIVERSIDE COUNTY OPERATIONAL AREA MULTI-JURISDICTIONAL LOCAL
HAZARD MITIGATION PLAN AS REQUIRED BY THE FEDERAL DISASTER MITIGATION AND COST REDUCTION ACT OF 2000
1.7) Popeyes Restaurant - Parkway Maintenance Agreement with DMSD Cajun Properties, LLC
Authorized the City Manager to execute the Parkway Maintenance Agreement with DMSD Cajun Properties, LLC.
1.8) Resolution Designating the Time, Date and Location of Regular City Council Meetings.
Adopted a Resolution entitled:
RESOLUTION NO. 2023 - 75
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WILDOMAR, CALIFORNIA, REPEALING AND REPLACING RESOLUTION NO. 2021-38, DESIGNATING THE TIME,
DATE AND LOCATION OF CITY COUNCIL MEETINGS
2) PUBLIC HEARINGS 501
2.1) Public Hearing for Annexation No. 9 (Popeyes) - Consideration of Territory to be Annexed to Community Facilities District No. 2022-1 (Services), Calling an Election, Ordering the Levy and Collection of Special Taxes, and Declaring the Election Results for CFD 2022-1 (Services), Annexation No. 9 Public Works Director Farag presented the report.
There being no public comment, the Mayor closed the Public Hearing.
Moved by Bridgette Moore; seconded by Carlos Marquez to to Adopt a Resolution entitled:
RESOLUTION NO. 2023 - 76
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WILDOMAR, CALIFORNIA,
CALLING AN ELECTION TO SUBMIT TO THE QUALIFIED ELECTORS THE QUESTION OF
LEVYING A SPECIAL TAX WITHIN THE AREA PROPOSED TO BE ANNEXED TO COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES) (ANNEXATION NO. 9) Motion Approved: 4 - 0
Voting For: Joseph Morabito, Ashlee DePhillippo, Bridgette Moore, Carlos Marquez Voting Against: None
Abstain: None
Absent: Dustin Nigg
Moved by Bridgette Moore; seconded by Carlos Marquez to to Adopt a Resolution entitled:
RESOLUTION NO. 2023 - 77
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WILDOMAR, CALIFORNIA, DECLARING ELECTION RESULTS FOR COMMUNITY FACILITIES DISTRICT NO. 2022-1 (SERVICES) (ANNEXATION NO. 9)
Motion Approved: 4 - 0
Voting For: Joseph Morabito, Ashlee DePhillippo, Bridgette Moore, Carlos Marquez Voting Against: None
Abstain: None
Absent: Dustin Nigg
3) GENERAL BUSINESS
3.1) 20-Acre Park (CIP 099) Conceptual Plan, First Contract Amendment, and CEQA Agreement
Public Works Director Farag and a consultant from Architerra presented the staff report.
Anna Olexa, resident, presented public comment in opposition of the item.
Janice Hare, resident, provided public comment in favor of the item.
Andy Morris, EVMWD, provided public comment.
John Coffin, resident, provided public comment in opposition of the item.
Moved by Bridgette Moore; seconded by Carlos Marquez to
1. Approve a supplemental appropriation in the amount of $280,000, which includes $25,000 to prepare additional documents to meet federal requirements
2. Authorize the City Manager to execute the First Contract Amendment with Architerra Design Group for a cost not to exceed $107,925
3. Authorize the City Manager to execute a task order with Placeworks, Inc., for the preparation of CEQA Documents for a cost not to exceed $145,129, which includes $25,000 to prepare a Federal Environmental Document.
Motion Approved: 4 - 0
Voting For: Joseph Morabito, Ashlee DePhillippo, Bridgette Moore, Carlos Marquez Voting Against: None
Abstain: None
Absent: Dustin Nigg 502
3.2) City of Wildomar New Parks Improvement Options
Administrative Services Director Schrader presented the report.
Andy Morris, resident, provided public comment.
Jason Escalera, resident, provided public comment.
It was the consensus of the Council to direct staff to provide the Council with a detailed workshop on bond financing before making further decisions.
3.3) Abandoned Vehicle Abatement (AVA) and Parking Enforcement Program - General Presentation/Discussion
Code Enforcement Supervisor Parker presented the staff report.
Rosalba Valdovinos, resident, provided public comment in favor of the item.
It was the consensus of the City Council to proceed with an Abandoned Vehicle Abatement (AVA) and Parking Enforcement Program.
3.4) Appointment of Mayor and Mayor Pro Tempore for 2024 Moved by Joseph Morabito; seconded by Ashlee DePhillippo to Appoint Bridgette Moore as the Mayor for 2024.
Motion Approved: 4 - 0
Voting For: Joseph Morabito, Ashlee DePhillippo, Bridgette Moore, Carlos Marquez Voting Against: None
Abstain: None
Absent: Dustin Nigg
Moved by Bridgette Moore; seconded by Joseph Morabito to Appoint Ashlee DePhillippo as the Mayor Pro Tempore for 2024.
Motion Approved: 4 - 0
Voting For: Joseph Morabito, Ashlee DePhillippo, Bridgette Moore, Carlos Marquez Voting Against: None
Abstain: None
Absent: Dustin Nigg
3.5) Committees, Commissions, and Board Appointments for 2024 Moved by Bridgette Moore; seconded by Carlos Marquez to Removed Western Community Energy and make no other changes.
Motion Approved: 4 - 0
Voting For: Joseph Morabito, Ashlee DePhillippo, Bridgette Moore, Carlos Marquez Voting Against: None
Abstain: None
Absent: Dustin Nigg
CITY MANAGER REPORT
City Manager York presented the report.
FUTURE AGENDA ITEMS
There were no future agenda items added.
ADJOURN THE CITY COUNCIL MEETING
There being no further business, Mayor Morabito adjourned the City Council Meeting at 9:07 p.m.
CALL TO ORDER THE WILDOMAR CEMETERY DISTRICT
ROLL CALL 503
Members in attendance: Joseph Morabito, Ashlee DePhillippo, Bridgette Moore, and Carlos Marquez
Members absent: Dustin Nigg
PUBLIC COMMENTS
There were no public comments.
BOARD COMMUNICATIONS
There were no board communications.
APPROVAL OF THE AGENDA AS PRESENTED
Moved by Bridgette Moore; seconded by Carlos Marquez to approve the Agenda as presented.
Motion Approved: 4 - 0
Voting For: Joseph Morabito, Ashlee DePhillippo, Bridgette Moore, Carlos Marquez Voting Against: None
Abstain: None
Absent: Dustin Nigg
4) CEMETERY CONSENT CALENDAR
4.1) City Council/Cemetery District Minutes - August 9, 2023.
Approved the minutes as presented.
4.2) Warrant Register Cemetery November 2023
Approved the following:
For Fiscal Year 2023/2024
Warrant Register dated 11-09-2023 in the amount of $166.09 Warrant Register dated 11-16-2023 in the amount of $75.00 Warrant Register dated 10-22-2023 in the amount of $3,783.37
4.3) October 2023 Cemetery Treasurers Report
Approved the Treasurer’s Report for October 2023.
Moved by Bridgette Moore; seconded by Carlos Marquez to approve the Cemetery Consent Calendar
Motion Approved: 4 - 0
Voting For: Joseph Morabito, Ashlee DePhillippo, Bridgette Moore, Carlos Marquez Voting Against: None
Abstain: None
Absent: Dustin Nigg
5) CEMETERY PUBLIC HEARINGS
5.1) Conduct a Public Hearing and consider a Resolution ordering the dedication of Right of Way to the City of Wildomar for the Palomar Street Improvement Project Public Works Director Farag presented the staff report.
There being no public comments, Mayor closed the Public Hearing.
Moved by Bridgette Moore; seconded by Ashlee DePhillippo to Adopt the following Resolution:
RESOLUTION NO. WCD2023 -05
A RESOLUTION OF THE BOAD OF TRUSTEES OF THE WILDOMAR CEMETERY 504
DISTRICT ORDERING THE DEDICATION OF RIGHT OF WAY TO THE CITY OF
WILDOMAR FOR ROAD AND UTILITY PURPOSES
Motion Approved: 4 - 0
Voting For: Joseph Morabito, Ashlee DePhillippo, Bridgette Moore, Carlos Marquez Voting Against: None
Abstain: None
Absent: Dustin Nigg
6) CEMETERY GENERAL BUSINESS
None scheduled.
GENERAL MANAGER REPORT
There was no general manager report.
FUTURE AGENDA ITEMS
There were no future agenda items added.
ADJOURN THE WILDOMAR CEMETERY DISTRICT MEETING
There being no further business, Chair Morabito adjourned the Wildomar Cemetery District Meeting at 9:11 p.m.
Submitted by:
_____________________________
Janet Morales, CMC
City Clerk
505
CITY OF WILDOMAR
CC - REGULAR MEETING
CONSENT CALENDAR
Agenda Staff Report # 4.2
Meeting Date: March 13, 2024
SUBJECT:
February 2024 Cemetery Warrant Register
SUBMITTED BY:
Nicholas Neidiffer
PREPARED BY:
Nicholas Neidiffer
ACTION:
Approve the following:
For Fiscal Year 2023/2024
1. Warrant Register dated 02-01-2023 in the amount of $1,604.93.
2. Warrant Register dated 02-15-2023 in the amount of $1,669.70.
3. Warrant Register dated 02-29-2023 in the amount of $5,394.07.
DISCUSSION:
The Wildomar Cemetery District requires that the Trustees audit payments of demands and direct the General Manager to issue checks. The Warrant Registers are submitted for approval.
FISCAL IMPACT:
These Warrant Registers will have a budgetary impact in the amount and fiscal year noted in the recommendation section of this report. These costs are included in the Fiscal Year 2023/24 Budget.
ATTACHMENTS:
4.2 Warrant Reg CEM Feb 2024 Voucher Listings.pdf
506
02/01/2024
Voucher List
City of Wildomar
1 8:55:15AM
Page:
Bank code : wf
Voucher Date Vendor Invoice PO # Description/Account Amount 217784 2/1/2024 000367 CINTAS CORPORATION 4181116498 STAFF UNIFORM & TOWEL MAINTENANCE 139.74 Total : 139.74
217785 2/1/2024 000367 CINTAS CORPORATION 5192536264 SD EYEWASH SERVICE AGREEMENT 139.45 Total : 139.45
217786 2/1/2024 000186 RIGHTWAY 370548 (2) CEMETERY RESTROOM
MAINTENANCE/SERVIC
452.18
Total : 452.18
217787 2/1/2024 000790 SPARKLETTS 18075184-012724 CEMETERY DRINKING WATER THROUGH 01/27/24
57.95 Total : 57.95
217788 2/1/2024 000094 STAUFFERS LAWN EQUIPMENT 348875 CEMETERY EQUIPMENT 815.61 Total : 815.61
Bank total : 1,604.93 5 Vouchers for bank code : wf
1,604.93Total vouchers :Vouchers in this report 5
507
02/15/2024
Voucher List
City of Wildomar
1 4:15:38PM
Page:
Bank code : wf
Voucher Date Vendor Invoice PO # Description/Account Amount 217850 2/15/2024 000367 CINTAS CORPORATION 9258141224 SD EYEWASH SERVICE AGREEMENT 141.38 Total : 141.38
217851 2/15/2024 000367 CINTAS CORPORATION 4181759198 STAFF UNIFORM & TOWEL MAINTENANCE 139.74 Total : 139.74
217852 2/15/2024 000367 CINTAS CORPORATION 4182471742 STAFF UNIFORM & TOWEL MAINTENANCE 139.74 Total : 139.74
217853 2/15/2024 001338 DEANZA TERMITE & PEST CONTROL, INC642220B PEST CONTROL CEMETERY (02/09/24) 55.00 Total : 55.00
217854 2/15/2024 000012 ELSINORE VALLEY MUNICIPAL, WATER DISTRICT12788380 12/17/23-01/17/24 CEMETERY WATER
SERVICE
296.81
Total : 296.81
217855 2/15/2024 002082 MAIN SAIL PEST CONTROL 56663 PEST CONTROL SERVICES 75.00 Total : 75.00
217856 2/15/2024 000186 RIGHTWAY 372606 (1) SEPTIC 21400 PALOMAR STREET 310.00 Total : 310.00
217857 2/15/2024 001101 SIGNS BY TOMORROW 31920 CORRUGATED PLASTIC SIGNS 394.71 Total : 394.71
217858 2/15/2024 001720 STERICYCLE, INC 8006010803B CONTRACTUAL SHREDDING SVC 117.32 Total : 117.32
Bank total : 1,669.70 9 Vouchers for bank code : wf
1,669.70Total vouchers :Vouchers in this report 9
508
02/29/2024
Voucher List
City of Wildomar
1 9:33:54AM
Page:
Bank code : wf
Voucher Date Vendor Invoice PO # Description/Account Amount 217912 2/29/2024 001596 ASCO PACIFIC 72020 0000508 CEMETERY DEPT SUPPLIES 2,427.52 Total : 2,427.52
217913 2/29/2024 000367 CINTAS CORPORATION 4184010808 STAFF UNIFORM & TOWEL MAINTENANCE 141.74 Total : 141.74
217914 2/29/2024 000367 CINTAS CORPORATION 4183242621 STAFF UNIFORM & TOWEL MAINTENANCE 139.74 Total : 139.74
217915 2/29/2024 000342 FENCE MASTERS 4202611 REPAIR CHAIN LINK 490.00 Total : 490.00
217916 2/29/2024 000186 RIGHTWAY 373726 (2) CEMETERY RESTROOM
MAINTENANCE/SERVIC
452.18
Total : 452.18
217917 2/29/2024 000790 SPARKLETTS 18075184-022424 CEMETERY DRINKING WATER THROUGH 02/24/24
6.49 Total : 6.49
217918 2/29/2024 000094 STAUFFERS LAWN EQUIPMENT 351827 FACILITY MATERIAL 130.49 Total : 130.49
217919 2/29/2024 000103 ULINE 174644490 CEMETERY SUPPLIES 1,201.78 404.13CEMETERY SUPPLIES (FOLDING CHAIR
DOLLY)
22124
Total : 1,605.91
Bank total : 5,394.07 8 Vouchers for bank code : wf
5,394.07Total vouchers :Vouchers in this report 8
509
CITY OF WILDOMAR
CC - REGULAR MEETING
CONSENT CALENDAR
Agenda Staff Report # 4.3
Meeting Date: March 13, 2024
SUBJECT:
January 2024 Cemetery Treasurer's Report
SUBMITTED BY:
Adam Jantz
PREPARED BY:
Adam Jantz
ACTION:
Approve the Treasurer’s Report for January 2024
SUMMARY:
January 2024 Cemetery Treasurer's Report
DISCUSSION:
Attached is the Treasurer’s Report for Cash and Investments for the month of January 2024.
FISCAL IMPACT:
This is only a report of balances for the Cemetery, therefore it has no fiscal impact.
ACCOUNT CODE:
300-1011
301-1011
ATTACHMENTS:
January 2024 Cemetery Treasurer's Report
510
PERCENT
OF DAYS STATED
FUND BOOK VALUE FACE VALUE MARKET VALUE PORTFOLIO TO MAT. RATE 301 $ 416,421.27 $ 416,421.27 $ 416,421.27 28.61% 0 5.540% 300 $ 1,027,164.66 $ 1,027,164.66 $ 1,038,917.46 71.39% 826 4.770% $ 1,443,585.93 $ 1,443,585.93 $ 1,455,338.73 100.00%
+ + WITHDRAWALS/
BEGINNING DEPOSITS/ INTEREST SALES/ ENDING STATED
FUND BALANCE PURCHASES DEPOSITED MATURITIES BALANCE RATE 301 $ 414,478.15 $ - $ 1,943.12 $ - $ 416,421.27 5.540% 300 $ 1,023,805.18 $ - $ 3,359.48 $ - $ 1,027,164.66 4.770% $ 1,438,283.33 $ - $ 5,302.60 $ - $ 1,443,585.93TOTAL
WILDOMAR CEMETERY DISTRICT
TREASURER'S REPORT FOR
CASH AND INVESTMENT PORTFOLIO
January 2024
DISTRICT INVESTMENT
ISSUER
ISSUER
TOTAL
CAMP POOL
CAMP MANAGED ACCOUNT
CAMP POOL
CAMP MANAGED ACCOUNT
City Treasurer
In compliance with the California Code Section 53646, as City Treasurer for the Wildomar Cemetery District, I hereby certify that sufficient investment liquidity and anticipated revenues are available to meet the District's expenditure requirements for the next six months.
I also certify that this report reflects all Government Agency pooled investments and all of the District's Bank Balances.
Heidi Schrader 2/21/2024
Heidi Schrader Date
511