INTRODUCTION OF ORDINANCE NO. 2023-1107
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has a project and requests services from a vendor on the on-call list, a task order is executed since there is already a contract in place.
6. There is a typographical correction in 3.04.150 to replace “agency” with the intended word “agent”.
Changes to City Council Policy F-1
The following is a summary of the changes to the Council policy:
1. Clarifying language and title change to make clear the reference to change orders and amendments separately and to distinguish between a Munis (the City’s finance system) change order and a contract change order.
2. Typographical correction to correctly title Section IV.
3. Reduction to the limits in the Public Project section to align with the City Council’s discussion and ultimate approval of a $125,000 City Council approval threshold for public projects in the ordinance back in 2017, when staff had originally requested a higher approval limit of $175,000. The Administrative Policy has included the $125,000 number since that time, but because this Council Policy was approved at the first meeting in 2017 while the Ordinance was brought back to the Council at a later meeting for continued discussion (of the $125,000 versus $175,000 issue), the Council Policy has never until now been adjusted to align with the limits ultimately placed in the Ordinance in 2017 for consistency.
FISCAL IMPACT
There are no direct fiscal impacts associated with this report.
ALTERNATIVES
The City Council could make modifications to staff’s recommended changes or direct staff to leave one or more current policies and/or procedures in place.
ATTACHMENTS
1. Ordinance 2023-1107 Revising Chapter 3.04 of the Municipal Code (Redline)
2. Revised City Council Policy F-1 (Redline)
Ordinance No. 2023-1107
ORDINANCE NO. 2023-1107
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF YORBA LINDA REPEALING AND RESTATING CHAPTER 3.04 OF THE YORBA LINDA MUNICIPAL CODE
RELATING TO PURCHASING
WHEREAS, Chapter 3.04 of the Yorba Linda Municipal Code governs the requirements and procedures for purchases made by the City of Yorba Linda; WHEREAS, the Yorba Linda City Council approved a comprehensive update to Chapter 3.04 of the Yorba Linda Municipal Code through the adoption of Ordinance No. 2019-1057; WHEREAS, the Yorba Linda City Council amended Chapter 3.04 of the Yorba Linda Municipal Code to incorporate enhanced language regarding conflicts of interest through the adoption of Ordinance No. 2020-1078; and
WHEREAS, various adjustments to Chapter 3.04 are desired to enhance the efficiency of the City's procurement practices and to clarify areas of uncertainty that have been identified in the existing language found in Chapter 3.04.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF YORBA LINDA DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Chapter 3.04 Purchasing is hereby repealed in its entirety and restated to read as follows:
CHAPTER 3.04 PURCHASING
3.04.010 Definitions.
Unless otherwise indicated, the following definitions shall apply to all provisions of this chapter:
A. "Act" means the California Uniform Public Construction Cost Accounting Act found at Public Contract Code Section 22000 et seq. as it currently exists or is subsequently amended or superseded.
B. "Alternative Purchasing Procedure" means purchasing supplies, vehicles, services, or equipment when any of the following situations exist: An emergency; no competitive market; competitive bidding already completed; state purchases; or no bids received.
C. "Authorized Contracting Party" means the City official or body provided with authority under this chapter to approve a contract or to make a purchase.
D. "City Manager" means the City Manager or person designated by the City Manager to perform all or some of the duties prescribed in this chapter.
E. "Commission" means the California Uniform Construction Cost Accounting Commission created by Division 2, Part 3, Chapter 2, Article 2 of the California Public
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Contracts Code (commencing at Section 22010).
F. "Direct Competitive Purchasing Procedure" means a procedure whereby quotes shall be obtained and a Pricing Quote Sheet completed. An agreement between the vendor and the City shall be completed when required.
G. "Emergency" for purposes of Public Projects shall have that meaning provided in Public Contract Code Sections 22035 and 22050. Emergency for all other purchasing purposes means a situation that makes competitive bidding, either formal or informal, impractical, or not in the best interests of the City.
H. "Formal Competitive Purchasing Procedure" means a procedure that meets the requirements of federal, state, and local law, including the Act, this chapter, and any policies and procedures approved by the City Council or City Manager consistent with this chapter. The City Council shall approve plans and specifications for purchases of more than two hundred thousand dollars ($200,000); the project shall be publicly noticed as required by law so all interested vendors may participate; bid packets may be prepared for purchase by vendors; and, the vendor shall be approved by the City Council based on established criteria.
I. "General Services" mean all services performed by persons not in a professional occupation, including, but not limited to, contract services for park, landscape, or road maintenance; electrical and computer repair; building, facility, and vehicle maintenance and repairs; recreation programs; and other similar services, which are not professional services.
J. "Informal Competitive Purchasing Procedure" means that at least three (3) bids or proposals shall be obtained from a Department-maintained vendor list.
K. "Maintenance Work" shall have that meaning provided in Section 22002(d) of the Act, as that Section may be amended from time to time. Maintenance work shall include, but is not limited to the following:
1. Routine, recurring, and usual maintenance work for the preservation or protection of any publicly owned or publicly operated facility. Facility maintenance includes, but is not limited to, roof repairs, heating and air conditioning repairs, plumbing repairs, electrical repairs, and minor repainting.
2. Street and highway maintenance, including utility patching, filling of cracks and potholes, slurry sealing, edge grading, street striping of existing streets, resurfacing of streets and highways at less than one-inch, sign replacement, sidewalk repair, curb and gutter repair, and streetlight and traffic signal repair.
Maintenance work shall not include new street or highway striping or the installation of new streetlights or traffic signals.
3. Storm drain-related maintenance.
4. Landscape maintenance, including mowing, watering, trimming, tree pruning, planting, tree and plant replacement, and irrigation and sprinkler system servicing, retrofit, and repair. Maintenance work shall not include the installation of new
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landscaping or irrigation and sprinkler system improvements.
5. Vehicle and equipment maintenance and repairs.
L. "Negotiated Contract" shall mean an agreement or written documentation that details terms and conditions of the purchase.
M. "Non-Public Project" shall mean expenditures, which include but are not limited to, those expenditures defined as general services, maintenance work, professional services, supplies, vehicles, and equipment.
N. "Over-The-Counter" shall mean the open market purchasing process that does not require comparative pricing, but rather prudent judgment when ordering goods and services.
0. "Professional Services" means all services performed by persons in a professional occupation, including, but not limited to, consulting and performance services for accounting, auditing, computer support, engineering, architectural, planning, financial, economic, legal, management, environmental, and other similar professional functions which may be necessary for the operation of the City.
P. "Public Project" shall have that meaning provided in Section 22002(c) of the Act, as that Section may be amended from time to time. Maintenance work is not considered a Public Project. A Public Project shall include, but is not limited to, the following:
1. Construction, reconstruction, erection, alteration, renovation, improvement, demolition, and repair work involving any publicly owned, leased, or operated street, highway, facility, real property, or other public work improvement.
2. Roof replacements for publicly owned,leased, or operated facilities.
3. Painting or repainting of any publicly owned, leased, or operated facilities.
Q. "Purchase Order" shall mean the document that is generated by the Purchasing Officer, mailed provided to the vendor named on the Purchase Order, and used to encumber the funds in the financial accounting system.
R. "Purchasing Officer" means the City Manager or his or her designee(s) as provided in Section 3.04.020. Pursuant to Section 3.04.020, the City Manager may change his or her designation at any time.
S. "Purchase Requisition" shall mean the document that is generated byelectronic process initiated by an authorized Department staff member requesting that the Purchasing Officer prepare issue a Purchase Order.
T. "Yorba Linda Vendor" shall mean a local business enterprise whose business address at the point of sale is located within the geographical boundaries of the City and who maintains a valid business license or permit to do business in the City.
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3.04.020 Purchasing Officer - Position created - Appointment.
There is established the role of a Purchasing Officer. The Purchasing Officer shall be the City Manager or his or her designee(s). If the City Manager designates one or more persons to act in this role, the Purchasing Officer(s) shall serve at the pleasure of the City Manager. The duties of the Purchasing Officer may be combined with those of any other officer(s) or position(s).
3.04.030 Purchasing Officer - Powers and duties.
The Purchasing Officer, in accordance with the policies set forth in this chapter and in any written procedures approved by the City Manager consistent with this chapter, shall have the power to:
A. Purchase or contract for supplies, vehicles, services, and equipment required by the City.
B. Negotiate and recommend to the City Council execution of contracts for the purchase of supplies, vehicles, services, and equipment.
C. Prepare and implement policies and procedures governing the bidding, contracting, purchasing, storing, and disposal of supplies, vehicles, services, and equipment for the City.
D. Prescribe and maintain such forms and electronic systems as may be reasonably necessary for the implementation of this chapter and any other policies and procedures approved by the City Manager consistent with this chapter.
E. Inspect or supervise the inspection of purchased supplies, vehicles, services, and equipment to ensure conformity with any specifications established or required by the City.
F. Transfer among departments any supplies, vehicles, services, and equipment not needed by one such department, but which are necessary for the operation of one or more other departments.
G. Sell any supplies, vehicles, and equipment not needed for public use or that may become unsuitable for their intended use.
H. Work with City Departments to ensure that they develop and maintain any lists of bidders, contractors, or vendors necessary for the operation of this chapter and any other policies and procedures approved by the City Council or the City Manager consistent with this chapter.
3.04.040 Purchasing policies and procedures.
A. The City shall secure supplies, vehicles, services, and equipment at the lowest total cost commensurate with the quality and scope needed, and subject to any limitations imposed by State Law. Notwithstanding the foregoing, the City shall secure professional services based upon demonstrated competence, professional qualifications, and experience. The City may consider cost of professional services
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if the authorized contracting party determines it to be a relevant factor.
In order to promote the economic health and development of the City, to recognize the amount of sales tax that is returned to the City as a result of the award of a purchase contract for supplies, vehicles, and equipment to a Yorba Linda vendor, to encourage local participation in the procurement process, and to exercise the prudent use of public funds, the City Council may, by minute action, award a bid for non-public projects to a Yorba Linda vendor provided the local bid does not exceed the lowest bid by more than two percent (2%) or five thousand dollars ($5,000), whichever is less. This exception shall not be utilized for any purchase made with federal funds.
B. The Purchasing Officer shall develop, for approval by the City Manager, such policies and procedures as are necessary to implement the provisions of this chapter. The policies and procedures shall be written and implemented in such a way to encourage open and competitive bidding, provide equal opportunity based on merit, make each selection process free of discrimination, provide for efficient and timely acquisition of needed supplies, vehicles, services, and equipment, and provide effective fiscal controls.
C. When purchasing supplies, vehicles, services and equipment, the City shall make use of competitive bidding, either direct, formal, or informal, whenever required by law, this chapter, or any policies and procedures approved by the City Council or the City Manager consistent with this chapter. All real property and equipment leases shall be approved by the City Council.
D. Direct, formal, or informal competitive bidding is not required when an "emergency" is declared pursuant to Sections 3.04.130(A) of this chapter. With respect to emergencies involving Public Projects of sixty thousand dollars ($60,000) or more, however, this waiver of competitive bidding shall last only so long as the emergency exists in the determination of the City Council.
E. Pursuant to Labor Code Section 1771, the City shall pay prevailing wages for certain public projects and maintenance projects of more than one thousand dollars ($1,000). Labor Code Sections 1720 through 1720.9 provides the definition of public projects for prevailing wage purposes. The City Attorney should be consulted when there is a question as to whether prevailing wages apply.
3.04.050 Purchase Requisition procedure.
When using the direct, formal, or informal competitive bidding process for goods and services, departments shall submit to theutilize the established electronic process prescribed by the Purchasing Officer the standard Purchase Requisition form or communicate by other means as may be established by the purchasing rules and regulations.
3.04.060 Purchase orders.
Purchase Orders shall be used as required by the purchasing rules and regulations.
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3.04.070 Encumbrance of funds.
Except in cases of emergency or in cases where specific authority has been first obtained from the City Manager, the Purchasing Officer shall not issue any Purchase Order unless there exists an unencumbered appropriation in the cost center or fund against which such purchase is to be charged.
3.04.080 Bidding, purchasing, and contracting.
A. $2,500 or less: Any purchase of two thousand five hundred dollars ($2,500) or less may be awarded by a designated mid-management employee responsible for the Public Project or Non-Public Project using the over-the-counter purchasing procedure set forth in Section 3.04.090.
B. $5,000 or less: Any purchase of five thousand dollars ($5,000) or less may be awarded by a designated mid-management employee responsible for the Public Project or Non- Public Project by any direct competitive purchasing procedure set forth in Section 3.04.100.
C. $25,000 or less: Any purchase of twenty-five thousand dollars ($25,000) or less may be awarded by the Director of the department responsible for the Public Project or Non- Public Project by any direct competitive purchasing procedure as set forth in Section 3.04.100.
D. $25,000.01 - $75,000- Non-Public Projects: Any purchase, other than those meeting the definition of Public Project, of more than twenty-five thousand dollars ($25,000), but less than or equal to seventy-five thousand dollars ($75,000) may, except as otherwise provided in this chapter or the Act, be awarded by the City Manager pursuant to the informal competitive purchasing procedure set forth in Section 3.04.110. If all bids received are over seventy-five thousand dollars ($75,000), the City Manager may award the contract in an amount not exceeding eighty thousand dollars ($80,000) to the lowest responsive and responsible bidder, so long as the City Manager also determines that the City's cost estimate for the project was reasonable.
E. $75,000.01 or more - Non-Public Project: Any purchase other than for Public Projects of more than seventy-five thousand dollars ($75,000) shall, except as otherwise provided in this chapter or the Act, be awarded by the City Council pursuant to the formal competitive purchasing procedure set forth in Section
3.04.120.
F. $60,000 or less - Public Project: Any purchase meeting the definition of Public Project of sixty thousand dollars ($60,000) or less may be awarded by the City Manager by any direct competitive purchasing procedure as set forth in Section
3.04.100.
G. $60,000.01 - $200,000 - Public Project: Any purchase meeting the definition of Public Project of more than sixty thousand dollars ($60,000), but less than or equal to two hundred thousand dollars ($200,000) may, except as otherwise provided in this chapter or the Act, be awarded pursuant to the informal competitive purchasing
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procedure set forth in Section 3.04.110. Purchases of more than sixty thousand dollars ($60,000), but less than or equal to one hundred twenty-five thousand dollars ($125,000) may be awarded by the City Manager. Purchases of more than one hundred twenty-five thousand dollars ($125,000), but less than or equal to two hundred thousand dollars ($200,000) shall be awarded by the City Council.
If all bids received are over two hundred thousand dollars ($200,000), the City Council may, by passage of a resolution by a four-fifths (4/5) vote, award the contract, for up to two hundred twelve thousand five hundred dollars ($212,500), to the lowest responsive and responsible bidder, so long as the City Council also determines that the City's cost estimate for the project was reasonable.
From time to time, the Uniform Public Construction Cost Accounting Act is updated to reflect higher purchasing limits. Increased informal competitive purchasing limits, when they occur, shall automatically be incorporated into this Section and Sections
3.04.080(F) and 3.04.080 (H). Such increases shall not automatically increase the threshold in place for City Council approval of public project bid awards, which is currently set at one hundred twenty-five thousand dollars ($125,000) and may only be increased by the City Council.
H. $200,000.01 or more - Public Project: Any purchase meeting the definition of a Public Project of more than two hundred thousand dollars ($200,000) shall, except as otherwise provided in this chapter or the Act, be awarded by the City Council pursuant to the formal competitive purchasing procedure set forth in Section 3.04.120.
I. Purchases Utilizing Federal Funding- Notwithstanding the foregoing, if a purchase utilizes any federal funding, then different dollar amount thresholds apply as follows:
1. For Public Projects, the $60,000 threshold is reduced to $10,000.
2. For Public Projects, the $200,000 threshold shall remain at $200,000, as the current Federal simplified acquisition threshold of $250,000 now exceeds the City's threshold of $200,000.
J. City Engineer Review: The City Engineer shall review the working details, drawings, plans, and specifications prepared for public projects and maintenance work where applicable in the areas of streets, sewers, storm drains, and traffic signals (but not necessarily for parks, buildings, and landscaping) that may affect the engineering design or operation of public improvements and that may bring into question the City's liability for dangerous conditions of public property.
K. City Council Approval: The City Council shall review and approve applicable working details, drawings, plans, and specifications prepared for Public Projects of more than one hundred seventy-fivetwo hundred thousand dollars ($200,000). In the case of a declared emergency pursuant to Section 3.04.130(A), this requirement shall not apply.
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L. Five-Year Term Limitation: In GeneralUnless otherwise approved by the City Council, no agreement or contract shall extend for a period of more than five (5) years, including any optional contract extensions included in the contract terms. At the City Council's discretion, contracts with a longer term may be approved at the time of contract award. This limitation does not apply to software or hardware maintenance or software renewal contracts that only facilitate the continued utilization of existing hardware or software.
The City Manager shall have the authority to sign all contract extensions previously approved by the City Council without the need for the extension to be separately approved by the City Council. However, should Tthe City Council may at its discretion require contract extensions to return for the City Council's approval at the time of contract award, then the City Council approval of the extensions will be required whenever they determine it to be appropriate. This limitation does not apply to software or hardware maintenance or software renewal contracts that only facilitate the continued utilization of existing hardware or software.
3.04.090 Yorba Linda over-the-counter purchasing procedure.
A. Uses of the Yorba Linda Over-the-Counter Purchasing Procedure: This direct purchasing procedure shall be used for purchases of less than $2,500. Comparative pricing is not required but shall be used when practical. Prudent judgment shall be used at all times.
3.04.100 Yorba Linda direct competitive purchasing procedure.
A. Uses of the Yorba Linda Direct Competitive Purchasing Procedure: This direct purchasing procedure shall be used for purchases between $2,500.01 and $25,000 for Non-Public Projects and between $2,500.01 and $60,000 for Public Projects.
B. Solicitation of Informal Quotes: At least three (3) vendors shall be contacted to provide informal quotesbids or proposals.
3.04.110 Yorba Linda informal competitive purchasing procedure.
A. Uses of the Yorba Linda Informal Competitive Purchasing Procedure: This informal purchasing procedure shall be used for purchases between $25,000.01 and $75,000 for non-Public Projects and for purchases between $60,000.01 and $200,000 for Public Projects.
B. Contractor I Vendor List: The using Department shall maintain a vendor/contractor list. For Public Projects only, the list of vendors shall be developed and maintained in accordance with the provisions of Section 22034 of the Act and the criteria promulgated from time to time by the Commission. In particular, during November of each year, City Departments shall submit a written notice to all construction trade journals designated for the City pursuant to Section 22036 of the Act inviting all licensed contractors to submit the name of their firm to the City for inclusion on the City's list of qualified bidders for the following calendar year. City Departments may create a new contractors list starting January 1 of each year and may include any contractor names on this list, but at a minimum all contractors who have properly
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provided the City with the information requested in the written notice. A contractor may have their firm added to the City's contactors list at any time by submitting a written request.
C. Distribution of Notice Inviting Informal Bids or Proposals: Notices inviting informal bids or proposals shall be mailed, emailed, or faxed to the list of qualified contractors and/or trade journals not less than ten (10) calendar days before bids are due. For Non-Public Projects only, a sufficient number of vendors shall be contacted so that at least three (3) vendors or contractors provide informal bids or proposals. If at least three (3) vendors or contractors do not submit informal bids or proposals, the using Department shall provide documentation to the Purchasing Officer as to why at least (3) vendors are not available. For Public Projects only, notices shall be mailed, emailed, or faxed to all contractors for the category of work to be bid, as shown on the list maintained by the using Department. If there is no list of registered contractors maintained by the using Department for the particular category of work to be performed, the notice inviting informal bids shall be sent only to the construction trade journals specified by the Commission pursuant to Section 22036 of the Act.
D. Proprietary Projects or Products: If the Director of the using Department certifies that, to the best of his or her knowledge, the product or service is proprietary in nature and can be obtained only from a limited number of contractors, and that no equivalent products or services are available, the notice inviting informal bids or proposals may be sent exclusively to such vendor(s) or contractor(s).
E. Bid, Proposal, and Contract Documents: The contents and form of the bid documents, request for proposals, and/or contract documents shall be approved by the Director of the using Department, and as needed the City Attorney.
F. Bid or Proposal Submittal: Contractors shall submit their bids or proposals on forms prescribed by the City.
G. No Bids or Proposals Received: If no bids or proposals are received, the authorized contracting party may award the contract by any alternative purchasing procedure.
3.04.120 Formal competitive purchasing procedure.
A. Uses of Formal Competitive Purchasing Procedure: This formal purchasing procedure shall be used for Non-Public Project purchases greater than $75,000, Public Project purchases greater than $200,000 or whenever formal competitive purchasing is otherwise required by this chapter.
B. Required Process: The formal competitive purchasing procedure shall comply with all aspects of federal, state, and local law governing formal competitive bidding, including, but not limited to, the Public Contract Code, Government Code, Labor Code, resolutions of the City Council as may be adopted from time to time, and policies and procedures as the City Council or City Manager may approve from time to time.
C. Distribution of Notice Inviting Formal Bids or Proposals: The notice inviting formal bids
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or proposals shall comply with Section 22037 of the Act, as such section may be amended from time to time. For Public Projects only, the bid process outlined in State law should be followed as it may be updated from time to time. In particular, there are specific notification and publication requirements that must be performed pursuant to the Public Contracts Code. For Non-Public Projects only, using the contractor list maintained in the Department, staff shall prepare and mail, email, or fax formal bid notices or requests for proposals describing the project in specific terms, how to obtain more detailed information and due date and requirements for submission of bids or proposals. Notice must be sent not less than 10 calendar days before bids or proposals are due. If at least three vendors or contractors do not submit bids or proposals, the department shall provide documentation to the Purchasing Officer as to why at least vendors are not available. If no bids or proposals are received, the contract may be awarded by any Alternative Purchasing Method.
D. Bid, Proposals, and Contract Documents: The contents and form of the bid documents, request for proposals, and/or contract documents shall be approved by the Director of the using Department, and as needed the City Attorney.
E. Bid or Proposal Submittal: Contractors shall submit their bids or proposals on forms prescribed by the City.
F. No Bids or Proposals Received: If no bids or proposals are received, the authorized contracting party may award the contract by any alternative purchasing procedure.
3.04.125 Prequalification of bidders.
A. Purpose. This section is enacted pursuant to Section 20101 of the California Public Contract Code, which authorizes the City to establish a system for prequalification of prospective bidders on public works construction projects.
B. Prequalification of Bidders.
1. The City hereby establishes a system for prequalifying prospective bidders for public works construction projects. The City may use the prequalification system identified in this section for any public works project.
2. The Public Works Director is authorized to adopt and apply a uniform system of rating bidders for each project based on: (i) the requirements of Section 20101 of the California Public Contract Code; and (ii) the model guidelines and standardized questionnaire created by the California Department of Industrial Relations, as modified at the Public Works Director's discretion, to address the needs of the particular project, or projects, to which they are to be applied.
3. The Public Works Director is authorized to determine whether or not the needs of any particular project warrant prequalification of prospective bidders.
4. If the Public Works Director determined that prequalification of prospective bidders is required for a particular project, the Public Works Director shall determine which bidders are qualified to bid that project based upon the
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uniform system of rating bidders. If the Public Works Director determines any bidder is not qualified to bid a project, the Public Works Director shall provide to the bidder written notice that includes the basis for the determination and an identification of any supporting evidence therefor, and an opportunity for the bidder to appeal the determination pursuant to subsection C of this section.
C. Appeals.
1. Any person aggrieved by a determination made by the Public Works Director pursuant to subsection (8)(4) of this section may appeal the determination only by complying with the requirements set forth in this subsection. Such an aggrieved person shall be referred to herein as "appellant." Without a timely appeal, the appellant waives any and all rights to challenge the decision of the Public Works Director, whether by administrative process, judicial process or any other legal process or proceeding.
2. The appellant shall submit a written notice of appeal to the City Clerk, along with a complete written description of all factual and legal bases for the appeal, no later than ten (10) calendar days after the City has mailed written notice of the determination made by the Public Works Director.
3. If the appellant gives the required notice of appeal and requests a hearing, the hearing shall be conducted so that it is concluded no later than five (5) business days prior to the last date for the receipt of bids on the project or twenty (20) calendar days following City's receipt of the notice of appeal, whichever is sooner.
4. The hearing shall be an informal process conducted by a hearing officer chosen at random from the following positions: (i) Community Development Director; (ii) Economic Development Manager; (iii) Assistant City Engineer; or (iv) Assistant City Manager. The assignment of one of these staff persons to a prequalification appeal hearing shall be made randomly and shall in no way be dependent or conditional upon the person's history as a hearing officer or the outcomes of prior hearings. Under no circumstances shall the prospects of future employment or the compensation of a hearing officer be based in any way upon the outcome of his or her hearing decision.
5. At the hearing, the appellant and the City shall each be provided an opportunity to be represented by legal counsel and to present or rebut any evidence bearing upon the issues presented in the appeal.
6. The hearing officer shall consider relevant evidence presented during the hearing and provide a written decision on the appeal to the City and the appellant within one business day after the close of the hearing. The time identified in this section for providing the hearing officer's decision may be extended only by consent of the City and the appellant and such an extension shall not affect or require a delay in a scheduled time for opening of bids for any public works project. Failure by the hearing officer to render a timely decision shall be deemed a denial of the appeal.
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7. The hearing officer's decision shall be final.
3.04.130 Alternative purchasing procedures.
For non-Public Projects and other situations provided in this section, an alternative purchasing procedure that results in a negotiated contract, force account, purchase order or any other procedure determined by the authorized contracting party to be in the best interests of the City and in compliance with the City's policies and procedures may be used. Alternative purchasing procedures for purchases utilizing any federal funding shall comply with any more stringent limitations imposed by federal law or regulations.
A. Emergencies: In situations determined by the City Manager to constitute an emergency the competitive bidding process may be waived. The City Council hereby delegates to the City Manager the power to declare a public emergency and take any directly related and immediate action required by the emergency, up to a total of two hundred thousand dollars ($200,000) for Public Projects, pursuant to Section 22035 of the Act and Public Contract Code Section 22050. Emergency expenditures of more than two hundred thousand dollars ($200,000) shall be approved by the City Council. For Non-Public Projects, the City Manager's authority is limited to seventy-five thousand dollars ($75,000) and emergency expenditures of more than this amount shall be approved by the City Council. In situations where the City Manager is temporarily unavailable and emergency work must proceed, the City Council hereby delegates this authority to Department Heads and Mid-Managers to act on behalf of the City Manager. Such delegated authority is limited to twenty-five thousand dollars ($25,000) for Department Heads and five thousand dollars ($5,000) for MidManagers. Work shall be performed without the benefit of competitive purchasing, either formal or informal, only so long as necessary under those sections.
For Public Projects of more than sixty thousand dollars ($60,000), a report on the emergency and work performed shall be provided at the next regular meeting of the City Council, and then at every meeting thereafter required by Section 22050. At such meetings, the City Council shall determine, by a four-fifths (4/5) vote, that there is a need to continue the action without the benefit of informal or formal competitive purchasing in accordance with Section 22035 of the Act and Public Contract Code Section 22050.
The City Council shall terminate the emergency action at the earliest possible date that conditions warrant, so that the remainder of the project or purchase may be completed pursuant to a competitive purchasing procedure.
For Public Projects of sixty thousand dollars ($60,000) or less and non-Public Projects, the City Manager shall determine, on his or her own as the action continues, whether there is a need to continue the action without the benefit of informal competitive purchasing. The City Manager shall terminate the emergency action at the earliest possible date that conditions warrant, so that the remainder of the emergency action may be completed pursuant to a competitive purchasing procedure.
B. Cooperative Purchases: When a recent competitive bid procedure or request for proposals process has been conducted by another public agency and the price to the City is equal to or better than the price to the other agency, the competitive bidding process may be waived.
C. State Purchase: When the purchase is made on behalf of the City by the State
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Department of General Services, the competitive bidding process may be waived.
D. No Bids Received: When no bids are received pursuant to the direct competitive purchasing procedure, the informal competitive purchasing procedure, or the formal competitive purchasing procedure, additional bids are not required.
E. Sole Source I Sole Brand Purchases: Commodities and services, which can be obtained from only one manufacturer or vendor, are exempt from competitive bidding. Sole source purchases include proprietary items sold directly from the manufacturer or items that have only one distributor authorized to sell in this area. Professional or general services vendors who possess specific expertise or past experience with City facilities, projects, or studies may also be determined to be an appropriate use of the Sole Source exception to competitive procurement. Products that have been proven to be the only acceptable or compatible products to be utilized with existing City systems (a City standard) but that are available on the open market from multiple sources are classified as sole brand purchases. Examples of sole brand procurements pursuant to a City standard include irrigation controllers, access control systems, or computer network infrastructure.
F. No Competitive Market: When it has been determined by the City Manager or Purchasing Officer that a competitive market does not exist, the competitive bidding process may be waived. Examples include purchases such as library books/media, memberships in professional organizations, meetings, conventions, travel, legal advertising, and utilities.
G. No Price Difference: When in the opinion of the Purchasing Officer, there is no material price difference between suppliers of goods, additional bids are not required.
H. Renovation and/or replacement of items currently under a maintenance contract:
When the City has entered into a maintenance contract with an outside vendor to perform routine maintenance services on existing buildings, equipment and/or landscaping, the renovation or replacement of parts and plantings determined by City staff to require replacement due to age, non-operable or hazardous condition or other circumstance, these expenditures shall be exempt from the direct competitive bid process only. If the expenditures exceed sixty thousand dollars ($60,000) for Public Projects or twenty-five thousand dollars ($25,000) for nonPublic Projects, then the work must be competitively bid. Department staff shall exercise good fiscal judgment when utilizing this purchasing exemption.
I. Planning Studies: Planning studies required as a condition of the development review process are not budgeted in advance. Although the City selects and contracts with the consultant, the cost is paid by the developer. Since the developer funds the study, planning consultant contracts up to $75,000 may be approved by the City Manager from a pre-approved vendor list when the developer has deposited money toward the cost of the study with the City. The pre-approved vendor list may also be used for contracts in excess of $75,000, however, a Request for Proposals shall first be circulated to a minimum of three vendors on the list and the City Council shall approve the contract.
Ordinance No. 2023-1107
J. Black Gold Golf Course Procurements: Implementation of procurement rules that differ from those outlined herein are permitted for any third-party operator hired to operate the Black Gold Golf Course. For Public Projects, the limitations and requirements imposed by State law relative to the bidding process and the payment of prevailing wages apply.
The City Manager is otherwise authorized to implement procurement rules for the thirdparty operator.
K. City Council-Approved On-Call Panels for Professional and General Services: A Department may maintain a City Council-approved on-call panel of pre-approved firms qualified to perform the type of professional or general services required. When such an on-call panel is maintained, the competitive selection procedures are waived. Award of contracts tasks under on-call contracts shall be rotated among the pre-approved firms with no single firm receiving a substantial majority of similar work during the fiscal year. Recognizing that certain firms on an on-call panel may have particular expertise for certain types of projects, the rotation of firms may be limited in these cases based on the professional judgment of City staff. Each on-call firm, unless further limited at the time of contract award by the City Council, shall be eligible to receive work in an amount up to $75,000 per fiscal year without the need for additional City Council approval.
Whenever the work awarded to a single on-call panel firm exceeds $75,000 in a fiscal year, City Council approval of the additional work is required.
L. City Council-Approved Panels for the Building Division: Recognizing that workload demands in the Building Division periodically exceed the available time of City staff to perform plan checks and building inspections, the City Council has authorized the utilization of a panel of professional services firms on an as-needed basis to augment City staffing. Because the nature of the work is unknown at the start of the contracts and each firm may or may not have staff available at a particular time to assist the City, it is not practical to assign a dollar limit to each of these contracts on an annual basis as is the case with other on-call panels. Rather, each firm on the Building Division panel, unless further limited at the time of contract award by the City Council, shall be eligible to receive work in an amount up to the total originally adopted budget for the Building Division Construction Inspection and Plan Check Service contractual services accounts. Any additional payments to the panel firms that exceed the originally adopted budget for these accounts shall require the approval of the City Council, regardless of whether additional funds have been transferred into these accounts pursuant to the City Council- approved budget transfers policy (City Council Policy A-15).
M. Temporary Extension of Professional or General Services Contracts to Facilitate a New Request for Proposals or Bid Process: In the event that a contract expires prior to the completion of the selection process for a successor contract, the City Manager may extend the expiring contract on a month-to-month basis until such time as the selection process is completed. In the event that the cumulative month-to-month payments will exceed $75,000, City Council approval is required.
N. Best Interests of the City: When the City Manager determines that an alternative procedure will be in the best interest of the City and the policies set forth in this chapter, the competitive bidding process may be waived. Competitive bidding may not be waived
Ordinance No. 2023-1107
for Public Projects unless an Emergency has been declared. For Non-Public Projects exceeding $75,000, City Council approval is still required and the City Council must be advised that the competitive bidding process was waived and of the reasons for the waiver.
0. Community Development Block Grant (CDBG) Procurements: Implementation of procurement rules that differ from those outlined herein are permitted for contractors hired by third parties but paid by the City pursuant to CDBG grant-related agreements.
For Public Projects, the limitations and requirements imposed by State law relative to the bidding process apply. The City Manager is authorized to implement procurement rules for all other types of procurements undertaken pursuant to CDBG grant-related agreements.
3.04.140 Disposal of City Property.
The disposal or sale of all real estate must be approved by the City Council. The disposal of all other assets, that include but are not limited to furniture, fixtures, machinery, equipment, books, and vehicles may be disposed of using the best method available but governed by either a City Council or Administrative Policy.
3.04.150 Conflicts of Interest.
No employee, officer, Councilmember, or agent of the City may participate in the selection, award, or administration of a contract pursuant to this Chapter if he or she has a real or apparent conflict of interest. A conflict of interest would arise when the City employee, officer, Councilmember, or agency agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of the parties indicated herein, has a financial or other interest in or a material benefit from a vendor considered for a contract.
An employee, officer, Councilmember, or agent of the City shall not solicit or accept gratuities, favors, or anything of monetary value from contractors or parties to subcontracts. Violations of this section by employees, officers, Councilmembers, or agents or the City shall be deemed unlawful and subject to the penalties in Yorba Linda Municipal Code section 1.12.010(A).
Alleged violations of this section shall be reported and investigated pursuant to the procedures in Yorba Linda Municipal Code section 2.44.110.
Section 2. Severability. If any section, subsection, sentence, clause, phase, or portion of this Ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions might subsequently be declared invalid or unconstitutional.
Section 3. Effective Date. This Ordinance shall take effect thirty days (30) after its adoption in accordance with the provisions of California law. The City Clerk shall certify the adoption of this Ordinance and shall cause the Ordinance or a summary thereof to be published in the manner required by law.
Ordinance No. 2023-1107
PASSED, APPROVED AND ADOPTED by the City Council of the City of Yorba Linda at a regular meeting held on the 19
th day of September, 2023.
______________________________
GENE HERNANDEZ, MAYOR
CITY OF YORBA LINDA
ATTEST:
_______________________________
MARCIA BROWN, CITY CLERK
CITY OF YORBA LINDA
APPROVED AS TO FORM:
_______________________________
TODD LITFIN, CITY ATTORNEY
RUTAN & TUCKER, LLP
Ordinance No. 2023-1107
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
I, MARCIA BROWN, City Clerk of the City of Yorba Linda, California, DO HEREBY CERTIFY that the foregoing Ordinance was adopted at a regular meeting of the City Council of the City of Yorba Linda held on the 19
th day of September, 2023, and was
carried by the following roll call vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
______________________________
MARCIA BROWN, CITY CLERK
CITY OF YORBA LINDA
POLICY: CONTRACT CHANGES ORDERS AND AMENDMENTS TO AGREEMENTS Number: F-1 Issue Number: 3
Page: 1 Date Adopted: September 19, 2023
Replaces: March 7, 2017
C I T Y C O U N C I L P O L I C I E S
I. PURPOSE
To establish procedures for the approval of contract changes, including change orders incurred during the completion of construction contracts and necessary amendments to agreements for professional or general services.
II. BACKGROUND
On September 17, 1991, the City Council instituted a $25,000 change order limit. On February 18, 1992, the City Council approved the original version of this Policy to further refine the limitations imposed on the issuance of change orders. On March 7, 2017, the City Council revised this Policy to clarify that it applies to both construction and nonconstruction procurements, to provide for varied change order and amendment limits based on the dollar value of the procurement, and to clarify and expand the allowable exceptions to the Policy.
III. POLICY
Appropriate approval of contract changeschange orders and amendments is required prior to City staff granting authorization to a contractor or consultant to commence additional work. Throughout the remainder of this Policy, the term “contract” shall be understood to include both construction contracts and agreements for professional and general services, and the term “change order” shall be understood to include both change orders to construction contracts and amendments to agreements. The term “public project” is defined in Section 22002(c) of the California Uniform Construction Cost Accounting Act, as that Section may be amended from time to time, as construction, reconstruction, erection, alteration, renovation, improvement, demolition, painting, repainting, or other repair work. The term “non-public project” shall mean all other types of procurement, which include but are not limited to, professional and general services, maintenance work, and the purchase of supplies, vehicles, & equipment.
IV. PROGRAMMING CATEGORIES PROCEDURES
The following procedures shall be observed:
POLICY: CONTRACT CHANGES ORDERS AND AMENDMENTS TO AGREEMENTS Number: F-1 Issue Number: 3
Page: 2 Date Adopted: September 19, 2023
Replaces: March 7, 2017
C I T Y C O U N C I L P O L I C I E S
1. Public Project
A. Contracts greater than $2,000,000 – Change order authority on a project-specific basis must be specifically delegated by the City Council at the time that the contract is awarded.
B. Contracts greater than $175,000$125,000 but less than or equal to $2,000,000 – When approval of a change order will result in the total of all change orders exceeding 15 percent of the original contract amount, City Council approval is required.
C. Contracts of $175,000$125,000 or less – When approval of a change order will result in the total contract amount exceeding $175,000$125,000, City Council approval is required.
2. Non-Public Projects
A. Contracts greater than $75,000 – When approval of an change orderamendment will result in the total of all change ordersamendments exceeding 15 percent of the original contract amount, City Council approval is required.
B. Contracts of $75,000 or less – When approval of an change orderamendment will result in the total contract amount exceeding $75,000, City Council approval is required.
3. Exceptions – The following exceptions apply to this policy:
A. In the case of 1) an emergency change order that affects the safety of others or 2) any change order that would, by any process or procedure above, prolong a project and cause undue hardship in the form of increased cost of materials or equipment standby time, the City Manager may approve the change order in lieu of the City Council. A staff report shall be placed on the City Council agenda at the earliest possible date following approval of the change order that seeks retroactive approval for the change order and documents the reasons for the approval by the City Manager in lieu of the City Council. This exception applies to change orders to public projects only.
POLICY: CONTRACT CHANGES ORDERS AND AMENDMENTS TO AGREEMENTS Number: F-1 Issue Number: 3
Page: 3 Date Adopted: September 19, 2023
Replaces: March 7, 2017
C I T Y C O U N C I L P O L I C I E S
B. The City Manager may approve a single change ordercontract change of $5,000 or less at the conclusion of a project that would otherwise need to be approved by the City Council under the terms of this Policy.
ADMINISTRATION DEPARTMENT
DATE: AUGUST 15, 2023
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: TODD LITFIN, CITY ATTORNEY
SUBJECT: TENTH AMENDMENT TO CITY MANAGER EMPLOYMENT AGREEMENT
RECOMMENDATION
It is recommended that the City Council review and approve the “Tenth Amendment Employment Agreement” (“Tenth Amendment”) that amends the City Manager’s employment agreement with the City and appropriate the necessary amounts in the FY 23- 24 budget.
BACKGROUND
On July 2, 2013 the City of Yorba Linda and City Manager Pulone entered into an Employment Agreement (“Original Agreement”) whereby Mr. Pulone was employed as City Manager for the City pursuant to the terms and conditions set forth in the Original Agreement. The Original Agreement has since been amended nine times – on October 7, 2014 (First Amendment), on October 6, 2015 (Second Amendment), on November 15, 2016 (Third Amendment), on September 19, 2017 (Fourth Amendment), on October 2, 2018 (Fifth Amendment), on August 6, 2019 (Sixth Amendment), on September 15, 2020 (Seventh Amendment), on December 7, 2021 (Eighth Amendment) and on October 4, 2022 (Ninth Amendment).
DISCUSSION
The Tenth Amendment updates the following matters pertaining to the terms of employment for the City Manager:
• The standard cost of living (COLA) increase of 2.0% as received by all City employees, plus an additional salary increase of 5.0% based on exceptional merit and performance effective as of July 1, 2023.
• Term of contract will be extended for one additional year through September 30, 2026.
All other terms of the contract will remain unchanged.
TENTH AMENDMENT TO CITY MANAGER EMPLOYMENT AGREEMENT
P a g e | 2
FISCAL IMPACT
The salary increase equates to $19,172.85 per year bringing the total annual salary to $289,213.17. An appropriation will be made to the current year’s budget as necessary.
ALTERNATIVES
Do not approve the Tenth Amendment to the City Manager Employment Agreement.
ATTACHMENTS
1. Original Employment Agreement
2. First Amendment Employment Agreement
3. Second Amendment Employment Agreement
4. Third Amendment Employment Agreement
5. Fourth Amendment Employment Agreement
6. Fifth Amendment Employment Agreement
7. Sixth Amendment Employment Agreement
8. Seventh Amendment Employment Agreement
9. Eighth Amendment Employment Agreement
10. Ninth Amendment Employment Agreement
11. Proposed Tenth Amendment Employment Agreement
FIFTH AMENDMENT
EMPLOYMENT AGREEMENT
This Fifth Amendment Employment Agreement between the City of Yorba Linda(" City") and Mark Pulone(" Pulone" or" Manager")(" Fifth Amendment Employment Agreement") is made this 2nd day of October, 2018.
RECITALS
A. City and Manager entered into an Employment Agreement dated July 2, 2013 Original Agreement"), a First Amendment Employment Agreement dated October 7, 2014, a Second Amendment Employment Agreement dated October 6, 2015, a Third Amendment Employment Agreement dated November 15, 2016, and a Fourth Amendment Employment Agreement dated September 19, 2017, whereby Pulone was employed as City Manager for the City of Yorba Linda pursuant to the terms and conditions set forth in Original Agreement as subsequently amended.
B. Manager desires to continue serving as City Manager of the City of Yorba Linda, and the City desires to continue Pulone as City Manager of the City of Yorba Linda on the terms and conditions set forth in the Original Agreement, subject to the amendments and modifications hereinafter stated.
C. The City desires to enter into a five ( 5) year contract with Pulone as City Manager of the City of Yorba Linda with a period October 2, 2018, through and including October 1, 2023.
AGREEMENT
NOW, THEREFORE, the parties agree to the following amendment to the terms and conditions of Manager' s employment:
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1. Section 4( a) Salary is amended to state:
Effective October 1, 2018, City Council grants Manager an increase in his current base salary of $241, 022. 00 based on merit and performance in accordance with the provisions of Section 4( a) of Original Agreement. The merit and performance increase is
2. 5%. Therefore, effective October 1, 2018, City agrees to pay Manager an annual base salary, exclusive of benefits, in the sum of 247, 047. 55, payable in installments at the same time and by the same methods as other City employees are regularly paid. In addition thereto, at least thirty ( 30) days prior to Manager' s Anniversary Date ( August 5th), the Council shall conduct a performance evaluation of Manager, and if a majority ofthe Council deems Manager to have successfully performed up to the
Anniversary Date may, in their sole discretion, grant Manager an increase in base salary based on merit and performance consistent with the City' s compensation policy in effect at the time of said increase. City and Manager agree to review Manager' s salary and benefits at the time of Manager' s performance evaluation in 2019 and subsequent years thereafter.
Council may, in its discretion, reduce the salary of Manager due to budgetary constraints, on condition that any such reduction shall not exceed the average reduction applicable to all management employees ofthe City at the time ofreduction and Manager' s salary. 539/ 009410- 1001
12880165. 1 a09/ 24/ 18 2-
Furthermore, Manager, in his sole discretion may elect not to receive any salary increase that may be granted hereunder; provided, however, if Manager elects not to receive a salary increase provided hereunder, said salary increase shall be subsequently implemented, on a prospective basis only, upon written request of Manager."
2. Section 11 ENTIRE AGREEMENT is amended to state:
Except as herein stated, all other terms and conditions of the Original Employment Agreement dated July 2, 2013, as amended in the First Amendment Employment Agreement dated October 7, 2014, as amended in the Second Amendment Employment
Agreement dated October 6, 2015, as amended in the Third Amendment Employment Agreement dated November 15, 2016, and as amended in the Fourth Amendment Employment Agreement dated September 19, 2017, shall remain in full force and effect until changed or terminated pursuant to the provisions of Section 3 of Original Employment Agreement.
This First, Second, Third, Fourth and Fifth Amendment
Employment Agreement and Original Employment Agreement
contain the Entire Agreement between the parties concerning the subject matters set forth therein, and no promise, representation, warranty or covenant not included in this Fifth Amendment Employment Agreement, Fourth Amendment Employment
Agreement, Third Amendment Employment Agreement, Second 539/ 009410- 1001
12880165. 1 a09/ 24/ 18 3-
Amendment Employment Agreement, First Amended Employment Agreement or Original Employment Agreement have been or is relied upon by any party hereto concerning the offer and acceptance of employment described therein."
3. Section 13 EFFECTIVE DATE AND TERM is amended to state:
The Effective Date of this Fifth Amendment Employment
Agreement is October 2, 2018, and the term is for five( 5) years until October 1, 2023.
IN WITNESS WHEREOF, the parties hereto have executed this Fifth Amendment Employment Agreement as of the date first set forth hereinabove.
Date: October 2, 2018
Fifth Amendment Employment Agreement approved by City Council in open session at a regular City Council meeting and reflected in the minutes pursuant to Government Code sections 53262 and 54956( b).
C iY 1 MANAGER:
1 Gene Hernandez, Mayor Mark Pulone
ATTEST:
1Y)(- 1. L/ 1.t__- t a ' v ' a L
City Clerk
APPROVED AS TO FORM:
ad/
Todd Lit in, City Attorney
539/ 009410- 1001
12880165. 1 a09/ 24/ 18 4-
SIXTH AMENDMENT
EMPLOYMENT AGREEMENT
This Sixth Amendment Employment Agreement between the City of Yorba Linda(" City") and Mark Pulone (" Pulone" or " Manager") (" Sixth Amendment Employment Agreement") is made this 6th day ofAugust, 2019.
RECITALS
A. City and Manager entered into an Employment Agreement dated July 2, 2013 Original Agreement"), a First Amendment Employment Agreement dated October 7, 2014, a Second Amendment Employment Agreement dated October 6, 2015, a Third Amendment Employment Agreement dated November 15, 2016, a Fourth Amendment Employment Agreement dated September 19, 2017, and a Fifth Amendment Employment Agreement dated October 2, 2018, whereby Pulone was employed as City Manager for the City of Yorba Linda pursuant to the terms and conditions set forth in Original Agreement as subsequently amended.
B. Manager desires to continue serving as City Manager of the City of Yorba Linda, and the City desires to continue Pulone as City Manager of the City of Yorba Linda on the terms and conditions set forth in the Original Agreement, subject to the amendments and modifications hereinafter stated.
AGREEMENT
NOW, THEREFORE, the parties agree to the following amendment to the terms and conditions of Manager' s employment:
1. Section 4( a) Salary is amended to state:
539/ 009410- 1001
13983150. 1 a07/ 25/ 19
Effective October 1, 2019, City Council grants Manager an increase in his current base salary of$ 247, 047. 55 based on merit and performance in accordance with the provisions of Section 4( a) of Original Agreement. The merit and performance increase is
2. 5%. Therefore, effective October 1, 2019, City agrees to pay Manager an annual base salary, exclusive of benefits, in the sum of 253, 223. 74, payable in installments at the same time and by the same methods as other City employees are regularly paid. In addition thereto, at least thirty ( 30) days prior to Manager' s Anniversary Date ( August 5th), the Council shall conduct a performance evaluation of Manager, and if a majority of the Council deems Manager to have successfully performed up to the
Anniversary Date may, in their sole discretion, grant Manager an increase in base salary based on merit and performance consistent with the City' s compensation policy in effect at the time of said increase. City and Manager agree to review Manager' s salary and benefits at the time of Manager' s performance evaluation in 2019 and subsequent years thereafter.
Council may, in its discretion, reduce the salary of Manager due to budgetary constraints, on condition that any such reduction shall not exceed the average reduction applicable to all management employees of the City at the time of reduction and Manager' s salary.
Furthermore, Manager, in his sole discretion may elect not to receive 539/ 009410- 1001
13983150. 1 a07/ 25/ 19 2-
any salary increase that may be granted hereunder; provided, however, if Manager elects not to receive a salary increase provided hereunder, said salary increase shall be subsequently implemented, on a prospective basis only, upon written request of Manager."
2. Section 11 ENTIRE AGREEMENT is amended to state:
Except as herein stated, all other terms and conditions of the Original Employment Agreement dated July 2, 2013, as amended in the First Amendment Employment Agreement dated October 7, 2014, as amended in the Second Amendment Employment
Agreement dated October 6, 2015, as amended in the Third Amendment Employment Agreement dated November 15, 2016, as amended in the Fourth Amendment Employment Agreement dated September 19, 2017, and as amended in the Fifth Amendment Employment Agreement dated October 2, 2018, shall remain in full force and effect until changed or terminated pursuant to the provisions of Section 3 of Original Employment Agreement.
This First, Second, Third, Fourth, Fifth and Sixth
Amendment Employment Agreement and Original Employment
Agreement contain the Entire Agreement between the parties concerning the subject matters set forth therein, and no promise, representation, warranty or covenant not included in this Sixth Amendment Employment Agreement, Fifth Amendment
Employment Agreement, Fourth Amendment Employment
539/ 009410- 1001
13983150. 1 a07/ 25/ 19 3-
Agreement, Third Amendment Employment Agreement, Second Amendment Employment Agreement, First Amended Employment Agreement or Original Employment Agreement have been or is relied upon by any party hereto concerning the offer and acceptance of employment described therein."
IN WITNESS WHEREOF, the parties hereto have executed this Sixth Amendment Employment Agreement as of the date first set forth hereinabove.
Date: August 6, 2019
Sixth Amendment Employment Agreement approved by City Council in open session at a regular City Council meeting and reflected in the minutes pursuant to Government Code sections 53262 and 54956( b).
CITY: MANAGER:
fa Camp. ell,/ ayor Mark Pulone
ATTEST:
2 ,
AAS__(Ci" L tip
City Clerk
APPROVED AS TO FORM:
Todd Litfi , City Attorney
539/ 009410- 1001
13983150. 1 a07/ 25/ 19 4-
SEVENTH AMENDMENT
EMPLOYMENT AGREEMENT
This Seventh Amendment Employment Agreement between the City of Yorba Linda City") and Mark Pulone (" Pulone" or " Manager") (" Seventh Amendment Employment Agreement") is made this 15th day of September, 2020.
RECITALS
A. City and Manager entered into an Employment Agreement dated July 2, 2013 Original Agreement"), a First Amendment Employment Agreement dated October 7, 2014, a Second Amendment Employment Agreement dated October 6, 2015, a Third Amendment Employment Agreement dated November 15, 2016, a Fourth Amendment Employment Agreement dated September 19, 2017, a Fifth Amendment Employment Agreement dated October 2, 2018, and a Sixth Amendment Employment Agreement dated August 6, 2019, whereby Pulone was employed as City Manager for the City of Yorba Linda pursuant to the terms and conditions set forth in Original Agreement as subsequently amended.
B. Manager desires to continue serving as City Manager of the City of Yorba Linda, and the City desires to continue Pulone as City Manager of the City of Yorba Linda on the terms and conditions set forth in the Original Agreement, subject to the amendments and modifications hereinafter stated.
AGREEMENT
NOW, THEREFORE, the parties agree to the following amendment to the terms and conditions ofManager' s employment:
1. Section 4( a) Salary is amended to state:
539/ 009410- 1001
15497817. 1 a09/ 10/ 20
Effective October 1, 2020, City Council grants Manager an increase in his current base salary of$253,223. 74 based on merit and performance in accordance with the provisions of Section 4( a) of Original Agreement. The merit and performance increase is
2. 5%. Therefore, effective October 1, 2020, City agrees to pay Manager an annual base salary, exclusive of benefits, in the sum of 259, 554. 33, payable in installments at the same time and by the same methods as other City employees are regularly paid. In addition thereto, at least thirty ( 30) days prior to Manager' s Anniversary Date ( August 5th), the Council shall conduct a performance evaluation ofManager, and ifa majority ofthe Council deems Manager to have successfully performed up to the
Anniversary Date may, in their sole discretion, grant Manager an increase in base salary based on merit and performance consistent with the City' s compensation policy in effect at the time of said increase. City and Manager agree to review Manager' s salary and benefits at the time of Manager' s performance evaluation in 2020 and subsequent years thereafter.
Council may, in its discretion, reduce the salary of Manager due to budgetary constraints, on condition that any such reduction shall not exceed the average reduction applicable to all management employees ofthe City at the time ofreduction and Manager' s salary.
Furthermore, Manager, in his sole discretion may elect not to receive 539/ 009410- 1001
15497817. 1 a09/ 10/ 20 2-
any salary increase that may be granted hereunder; provided, however, if Manager elects not to receive a salary increase provided hereunder, said salary increase shall be subsequently implemented, on a prospective basis only, upon written request of Manager."
2. Section 11 ENTIRE AGREEMENT is amended to state:
Except as herein stated, all other terms and conditions of the Original Employment Agreement dated July 2, 2013, as amended in the First Amendment Employment Agreement dated October 7, 2014, as amended in the Second Amendment Employment
Agreement dated October 6, 2015, as amended in the Third Amendment Employment Agreement dated November 15, 2016, as amended in the Fourth Amendment Employment Agreement dated September 19, 2017, as amended in the Fifth Amendment
Employment Agreement dated October 2, 2018, and as amended in the Sixth Amendment Employment Agreement dated August 6, 2019, shall remain in full force and effect until changed or terminated pursuant to the provisions of Section 3 of Original Employment Agreement.
This First, Second, Third, Fourth, Fifth, Sixth, and Seventh Amendment Employment Agreement and Original Employment
Agreement contain the Entire Agreement between the parties concerning the subject matters set forth therein, and no promise, representation, warranty or covenant not included in this Seventh 539/ 009410- 1001
15497817. 1 a09/ 10/ 20 3-
Amendment Employment Agreement, Sixth Amendment
Employment Agreement, Fifth Amendment Employment
Agreement, Fourth Amendment Employment Agreement, Third Amendment Employment Agreement, Second Amendment
Employment Agreement, First Amended Employment Agreement or Original Employment Agreement have been or is relied upon by any party hereto concerning the offer and acceptance ofemployment described therein."
IN WITNESS WHEREOF, the parties hereto have executed this Seventh Amendment Employment Agreement as of the date first set forth hereinabove.
Date: September 15, 2020
Seventh Amendment Employment Agreement approved by City Council in open session at a regular City Council meeting and reflected in the minutes pursuant to Government Code sections 53262 and 54956( b).
CITY: MANAGER:
Beth Haney, Mayor Mark Pulone
ATTEST:
C0' City Clerk
APPROVED AS TO FORM:
rcOd
Todd Litfi , City Attorney
539/ 009410- 1001
15497817. 1 a09/ 10/ 20 4-
EIGHTH AMENDMENT
EMPLOYMENT AGREEMENT
This Eighth Amendment Employment Agreement between the City of Yorba Linda City") and Mark Pulone (" Pulone" or " Manager") (" Eighth Amendment Employment Agreement") is made this 7th day of December, 2021.
RECITALS
A. City and Manager entered into an Employment Agreement dated July 2, 2013 Original Agreement"), a First Amendment Employment Agreement dated October 7, 2014, a Second Amendment Employment Agreement dated October 6, 2015, a Third Amendment Employment Agreement dated November 15, 2016, a Fourth Amendment Employment Agreement dated September 19, 2017, a Fifth Amendment Employment Agreement dated October 2, 2018, a Sixth Amendment Employment Agreement dated August 6, 2019, and a Seventh Amendment Employment Agreement dated September 15, 2020, whereby Pulone was employed as City Manager for the City of Yorba Linda pursuant to the terms and conditions set forth in Original Agreement as subsequently amended.
B. Manager desires to continue serving as City Manager of the City of Yorba Linda, and the City desires to continue Pulone as City Manager of the City of Yorba Linda on the terms and conditions set forth in the Original Agreement, subject to the amendments and modifications hereinafter stated.
AGREEMENT
NOW, THEREFORE, the parties agree to the following amendment to the terms and conditions of Manager' s employment:
539/009410- 1019
17225908. 1 a] 2/ 07/ 21
1. Section 4( a) Salary is amended to state:
Effective October 1, 2021, City Council grants Manager an increase in his current base salary of $259, 554. 33 based on merit and performance in accordance with the provisions of Section 4( a) of Original Agreement. The merit and performance increase is
2. 0%. Therefore, effective October 1, 2021, City agrees to pay Manager an annual base salary, exclusive of benefits, in the sum of 264, 745. 42, payable in installments at the same time and by the same methods as other City employees are regularly paid. In addition thereto, at least thirty( 30) days prior to Manager' s Anniversary Date ( August 5th), the Council shall conduct a performance evaluation ofManager, and ifa majority ofthe Council deems Manager to have successfully performed up to the
Anniversary Date may, in their sole discretion, grant Manager an increase in base salary based on merit and performance consistent with the City' s compensation policy in effect at the time of said increase. City and Manager agree to review Manager' s salary and benefits at the time of Manager' s performance evaluation in 2022 and subsequent years thereafter.
Council may, in its discretion, reduce the salary of Manager due to budgetary constraints, on condition that any such reduction shall not exceed the average reduction applicable to all management employees ofthe City at the time of reduction and Manager' s salary. 539/ 009410- 1019
17225908. 1 a12/ 07/ 21 - 2-
Furthermore, Manager, in his sole discretion may elect not to receive any salary increase that may be granted hereunder; provided, however, if Manager elects not to receive a salary increase provided hereunder, said salary increase shall be subsequently implemented, on a prospective basis only, upon written request of Manager." One -Time Off -Salary Schedule Non-PERSable Bonus of 4%:
City shall also pay Manager a one- time off -salary schedule bonus of 4% calculated on Manager' s salary in the amount of $10, 589. 81.
Payment shall be made on the next regular payment date for all employees ofthe City following City Council approval ofthe Eighth Amendment Employment Agreement at a regular City Council meeting. It is the specific intent ofthe parties that this one-time off - salary schedule payment shall not be characterized as and shall not be reportable to Ca1PERS as compensation or compensation earnable within the definitions of Government Code §§ 20630, 20636, and 20636. 1.
2. Section 11 ENTIRE AGREEMENT is amended to state:
Except as herein stated, all other terms and conditions of the Original Employment Agreement dated July 2, 2013, as amended in the First Amendment Employment Agreement dated October 7, 2014, as amended in the Second Amendment Employment
Agreement dated October 6, 2015, as amended in the Third Amendment Employment Agreement dated November 15, 2016, as 539/ 009410- 1019
17225908. 1 a12/ 07/ 21 - 3-
amended in the Fourth Amendment Employment Agreement dated September 19, 2017, as amended in the Fifth Amendment
Employment Agreement dated October 2, 2018, as amended in the Sixth Amendment Employment Agreement dated August 6, 2019, and as amended in the Seventh Amendment Employment
Agreement dated September 15, 2020, shall remain in full force and effect until changed or terminated pursuant to the provisions of Section 3 of Original Employment Agreement.
This First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Amendment Employment Agreement and Original
Employment Agreement contain the Entire Agreement between the parties concerning the subject matters set forth therein, and no promise, representation, warranty or covenant not included in this Eighth Amendment Employment Agreement, Seventh Amendment Employment Agreement, Sixth Amendment Employment
Agreement, Fifth Amendment Employment Agreement, Fourth Amendment Employment Agreement, Third Amendment
Employment Agreement, Second Amendment Employment
Agreement, First Amended Employment Agreement or Original Employment Agreement have been or is relied upon by any parry hereto concerning the offer and acceptance of employment described therein."
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3. Section 13 EFFECTIVE DATE AND TERM is amended to state:
The Effective Date of this Eighth Amendment Employment
Agreement is October 1, 2021, and the term is for three ( 3) years until September 30, 2024.
IN WITNESS WHEREOF, the parties hereto have executed this Eighth Amendment Employment Agreement as of the date first set forth hereinabove.
Date: December 7th 2021
Eighth Amendment Employment Agreement approved by City Council in open session at a regular City Council meeting and reflected in the minutes pursuant to Government Code sections 53262 and 54956( b).
CITY:
f
Mayor
ATTEST:
QA a--
City Clerk
APPROVED AS TO FORM:
l
Todd Litfin, City Attorney
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MANAGER:
Mark Pulone
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NINTH AMENDMENT
EMPLOYMENT AGREEMENT
This Ninth Amendment Employment Agreement between the City of Yorba Linda (“City”) and Mark Pulone (“Pulone” or “Manager”) (“Ninth Amendment Employment Agreement”) is made this 4th day of October, 2022.
RECITALS
A. City and Manager entered into an Employment Agreement dated July 2, 2013 (“Original Agreement”), a First Amendment Employment Agreement dated October 7, 2014, a Second Amendment Employment Agreement dated October 6, 2015, a Third Amendment Employment Agreement dated November 15, 2016, a Fourth Amendment Employment Agreement dated September 19, 2017, a Fifth Amendment Employment Agreement dated October 2, 2018, a Sixth Amendment Employment Agreement dated August 6, 2019, a Seventh Amendment Employment Agreement dated September 15, 2020, and an Eighth Amendment Employment Agreement dated December 7, 2021, whereby Pulone was employed as City Manager for the City of Yorba Linda pursuant to the terms and conditions set forth in Original Agreement as subsequently amended.
B. Manager desires to continue serving as City Manager of the City of Yorba Linda, and the City desires to continue Pulone as City Manager of the City of Yorba Linda on the terms and conditions set forth in the Original Agreement, subject to the amendments and modifications hereinafter stated.
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AGREEMENT
NOW, THEREFORE, the parties agree to the following amendment to the terms and conditions of Manager’s employment:
1. Section 4(a) Salary is amended to state:
“Effective July 1, 2022, City Council grants Manager an increase in his current base salary of $264,745.42 based on merit and performance in accordance with the provisions of Section 4(a) of Original Agreement. The merit and performance increase is 2.0%.
Therefore, effective July 1, 2022, City agrees to pay Manager an annual base salary, exclusive of benefits, in the sum of $270,040.32, payable in installments at the same time and by the same methods as other City employees are regularly paid. In addition thereto, at least thirty (30) days prior to Manager’s Anniversary Date (August 5th), the Council shall conduct a performance evaluation of Manager, and if a majority of the Council deems Manager to have successfully performed up to the Anniversary Date may, in their sole discretion, grant Manager an increase in base salary based on merit and performance consistent with the City’s compensation policy in effect at the time of said increase. City and Manager agree to review Manager’s salary and benefits at the time of Manager’s performance evaluation in 2023 and subsequent years thereafter.
Council may, in its discretion, reduce the salary of Manager due to budgetary constraints, on condition that any such reduction shall not exceed the average reduction applicable to all management
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employees of the City at the time of reduction and Manager’s salary.
Furthermore, Manager, in his sole discretion may elect not to receive any salary increase that may be granted hereunder; provided, however, if Manager elects not to receive a salary increase provided hereunder, said salary increase shall be subsequently implemented, on a prospective basis only, upon written request of Manager.”
2. Section 11 ENTIRE AGREEMENT is amended to state:
“Except as herein stated, all other terms and conditions of the Original Employment Agreement dated July 2, 2013, as amended in the First Amendment Employment Agreement dated October 7, 2014, as amended in the Second Amendment Employment
Agreement dated October 6, 2015, as amended in the Third Amendment Employment Agreement dated November 15, 2016, as amended in the Fourth Amendment Employment Agreement dated September 19, 2017, as amended in the Fifth Amendment
Employment Agreement dated October 2, 2018, as amended in the Sixth Amendment Employment Agreement dated August 6, 2019, as amended in the Seventh Amendment Employment Agreement dated September 15, 2020, and as amended in the Eighth
Amendment Employment Agreement dated December 7, 2021,
shall remain in full force and effect until changed or terminated pursuant to the provisions of Section 3 of Original Employment Agreement.
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This First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth Amendment Employment Agreement and
Original Employment Agreement contain the Entire Agreement between the parties concerning the subject matters set forth therein, and no promise, representation, warranty or covenant not included in this Ninth Amendment Employment Agreement, Eighth
Amendment Employment Agreement, Seventh Amendment
Employment Agreement, Sixth Amendment Employment
Agreement, Fifth Amendment Employment Agreement, Fourth Amendment Employment Agreement, Third Amendment
Employment Agreement, Second Amendment Employment
Agreement, First Amended Employment Agreement or Original Employment Agreement have been or is relied upon by any party hereto concerning the offer and acceptance of employment described therein.”
3. Section 13 EFFECTIVE DATE AND TERM is amended to state:
The Effective Date of this Eighth Amendment Employment
Agreement is July 1, 2022, and the term is for three (3) years until September 30, 2025.
IN WITNESS WHEREOF, the parties hereto have executed this Ninth Amendment Employment Agreement as of the date first set forth hereinabove.
Date: October 4, 2022
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Ninth Amendment Employment Agreement approved by City Council in open session at a regular City Council meeting and reflected in the minutes pursuant to Government Code sections 53262 and 54956(b).
CITY:
Carlos Rodriguez, Mayor
MANAGER:
Mark Pulone
ATTEST:
Marcia Brown, City Clerk
APPROVED AS TO FORM:
Todd Litfin, City Attorney
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19504971.1 a08/10/23
TENTH AMENDMENT
EMPLOYMENT AGREEMENT
This Tenth Amendment Employment Agreement between the City of Yorba Linda (“City”) and Mark Pulone (“Pulone” or “Manager”) (“Tenth Amendment Employment Agreement”) is made this 15th day of August, 2023.
RECITALS
A. City and Manager entered into an Employment Agreement dated July 2, 2013 (“Original Agreement”), a First Amendment Employment Agreement dated October 7, 2014, a Second Amendment Employment Agreement dated October 6, 2015, a Third Amendment Employment Agreement dated November 15, 2016, a Fourth Amendment Employment Agreement dated September 19, 2017, a Fifth Amendment Employment Agreement dated October 2, 2018, a Sixth Amendment Employment Agreement dated August 6, 2019, a Seventh Amendment Employment Agreement dated September 15, 2020, an Eighth Amendment Employment Agreement dated December 7, 2021, and a Ninth Amendment Employment Agreement dated October 4, 2022, whereby Pulone was employed as City Manager for the City of Yorba Linda pursuant to the terms and conditions set forth in Original Agreement as subsequently amended.
B. Manager desires to continue serving as City Manager of the City of Yorba Linda, and the City desires to continue Pulone as City Manager of the City of Yorba Linda on the terms and conditions set forth in the Original Agreement, subject to the amendments and modifications hereinafter stated.
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AGREEMENT
NOW, THEREFORE, the parties agree to the following amendment to the terms and conditions of Manager’s employment:
1. Section 4(a) Salary is amended to state:
“Effective July 1, 2023, City Council grants Manager an increase in his current base salary of $270,040.32 based on merit and performance in accordance with the provisions of Section 4(a) of Original Agreement. The City Council grants Manager the standard merit and performance increase of 2.0%. Furthermore, the City Council grants Manager an additional 5.0% increase for exceptional merit and performance. Therefore, effective July 1, 2023, City agrees to pay Manager an annual base salary, exclusive of benefits, in the sum of $289,213.17, payable in installments at the same time and by the same methods as other City employees are regularly paid.
In addition thereto, the Council shall conduct a performance evaluation of Manager in or near August of 2024, and if a majority of the Council deems Manager to have successfully performed up to the Anniversary Date the City Council may, in its sole discretion, grant Manager an increase in base salary based on merit and performance consistent with the City’s compensation policy in effect at the time of said increase. City and Manager agree to review Manager’s salary and benefits at the time of Manager’s performance evaluation in 2024 and subsequent years thereafter.
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Council may, in its discretion, reduce the salary of Manager due to budgetary constraints, on condition that any such reduction shall not exceed the average reduction applicable to all management employees of the City at the time of reduction and Manager’s salary.
Furthermore, Manager, in his sole discretion may elect not to receive any salary increase that may be granted hereunder; provided, however, if Manager elects not to receive a salary increase provided hereunder, said salary increase shall be subsequently implemented, on a prospective basis only, upon written request of Manager.”
2. Section 11 ENTIRE AGREEMENT is amended to state:
“Except as herein stated, all other terms and conditions of the Original Employment Agreement dated July 2, 2013, as amended in the First Amendment Employment Agreement dated October 7, 2014, as amended in the Second Amendment Employment
Agreement dated October 6, 2015, as amended in the Third Amendment Employment Agreement dated November 15, 2016, as amended in the Fourth Amendment Employment Agreement dated September 19, 2017, as amended in the Fifth Amendment
Employment Agreement dated October 2, 2018, as amended in the Sixth Amendment Employment Agreement dated August 6, 2019, as amended in the Seventh Amendment Employment Agreement dated September 15, 2020, and as amended in the Eighth
Amendment Employment Agreement dated December 7, 2021, and
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as amended in the Ninth Amendment Employment Agreement dated October 4, 2022, shall remain in full force and effect until changed or terminated pursuant to the provisions of Section 3 of Original Employment Agreement.
This First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Amendment Employment Agreement and Original Employment Agreement contain the Entire Agreement between the parties concerning the subject matters set forth therein, and no promise, representation, warranty or covenant not included in this Tenth Amendment Employment Agreement, Ninth
Amendment Employment Agreement, Eighth Amendment
Employment Agreement, Seventh Amendment Employment
Agreement, Sixth Amendment Employment Agreement, Fifth
Amendment Employment Agreement, Fourth Amendment
Employment Agreement, Third Amendment Employment
Agreement, Second Amendment Employment Agreement, First Amended Employment Agreement or Original Employment
Agreement have been or is relied upon by any party hereto concerning the offer and acceptance of employment described therein.”
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3. Section 13 EFFECTIVE DATE AND TERM is amended to state:
The Effective Date of this Tenth Amendment Employment
Agreement is July 1, 2023, and the term is for three (3) years until September 30, 2026.
IN WITNESS WHEREOF, the parties hereto have executed this Tenth Amendment Employment Agreement as of the date first set forth hereinabove.
Date: August 15, 2023
Tenth Amendment Employment Agreement approved by City Council in open session at a regular City Council meeting and reflected in the minutes pursuant to Government Code sections 53262 and 54956(b).
CITY:
Gene Hernandez, Mayor
MANAGER:
Mark Pulone
ATTEST:
Marcia Brown, City Clerk
APPROVED AS TO FORM:
Todd Litfin, City Attorney