petition for writ of mandate - citizens for transparency in uptown
DESCRIPTION
Petition for Brown Act Violations by City of Whittier, Whittier Uptown Association, and Friends of UptownTRANSCRIPT
-2- VERIFIED PETITION FOR WRIT OF MANDATE
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CITIZENS FOR TRANSPARENCY IN UPTOWN and RICHARD A. ELIAS
(collectively “Petitioners”) seek a writ of mandate, injunctive, and declaratory relief
under California Code of Civil Procedure sections 1085 and 1060 and Government Code
sections 54960 and 54960.1. In this Verified Petition, Petitioners allege as follows:
THE PARTIES
1. Petitioner/Plaintiff CITIZENS FOR TRANSPARENCY IN UPTOWN
(“CTU”) is unincorporated association of citizens, businesses, and business owners who
are located within the City of Whittier’s Business Improvement Area, known as Uptown
(“Uptown BID”). As businesses operating within the Uptown BID, the members of
CTU liable for assessments levied by the City of Whittier. Additionally, many of the
members of CTU are also residents and taxpayers of the City of Whittier, County of Los
Angeles, State of California. The members of CTU have a common interest in ensuring
that the Respondents comply with the California’s transparency laws.
2. Petitioner/Plaintiff RICHARD A. ELIAS is a member of CTU, a business
owner in the Uptown BID, and an involuntary member of the Whittier Uptown
Association. As a businesses owner within the Uptown BID, Mr. Elias is liable for
assessments levied by the City of Whittier. Additionally, Mr. Elias is a resident and
taxpayer of the City of Whittier, County of Los Angeles, State of California.
3. Respondent/Defendant WHITTIER CITY COUNCIL (“City Council”) is
the elected, five-member governing body of the City of Whittier (“City”) located within
the County of Los Angeles, California. The City’s offices are located at 13230 Penn
Street, Whittier, California 90602. The City is defined as a “local agency” by
Government Code section 54951. The City Council is a “legislative body” pursuant to
section Government Code section 54952.
4. Whittier Uptown Association (“Association”) is a 501(c)(6) non-profit
corporation governed by Respondent/Defendant WHITTIER UPTOWN ASSOCIATION
-3- VERIFIED PETITION FOR WRIT OF MANDATE
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BOARD OF DIRECTORS (“Association Board”). The Association is supported by the
City’s assessments on businesses within the Uptown BID. The Association’s offices are
located 6717 Bright Avenue Whittier, California 90601. According to its Bylaws, the
Association exists to “promote the businesses located in the Uptown district through
marketing and production of quality events; to work with property owners and tenants
to enhance the Uptown area by creating and maintaining a safe and welcoming
environment; to communicate the collective interest of the Association and serve as a
liaison to local government.” A true and correct copy of the Association’s Bylaws are
attached hereto as Exhibit A.1
5. The Association Board is the advisory body created by the City Council
pursuant to the requirements of Streets and Highways Code section 36530. Therefore,
the Uptown Board is a “legislative body” pursuant to Government Code section
54952(b).
6. Respondent/Defendant FRIENDS OF UPTOWN, INC. is a 501(c)(3) non-
profit corporation, which was created by the Association Board. Therefore, the
governing body of the Friends of Uptown is deemed a “legislative body” pursuant to
Government Code section 54952(c)(1). Friends of Uptown’s offices are located at 6717
Bright Avenue, Whittier, California 90601.
7. The true names and capacities, whether individual, corporate, associate,
representative, or otherwise of respondents/defendants named herein as DOES 1
through 10 are unknown to Petitioners at this time, and are therefore sued by such
fictitious names. Petitioners will amend this complaint to allege the true names and
capacities of DOES 1 through 10 when they become known to them. Each of DOES 1
through 10 is in some manner legally responsible for the violations of law alleged
herein.
1 All Exhibits referenced herein are true and correct copies of the documents they purport to be, and are incorporated by reference as if set forth in full.
-4- VERIFIED PETITION FOR WRIT OF MANDATE
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JURISDICTION AND VENUE
8. Petitioners bring this suit pursuant to Code of Civil Procedure sections
1060 and 1085 and the Brown Act, Government Code sections 6258 and 6259.
9. Venue is proper in this Court as Respondents are located within the
County of Los Angeles and the acts and events giving rise to the claims occurred in the
County of Los Angeles.
CAUSE OF ACTION
FOR VIOLATIONS OF THE RALPH M. BROWN ACT
(RELIEF PURSUANT TO SECTION 54960, 54960.1; CCP SECTIONS 1060, 1085)
10. The Brown Act requires that “[a]ll meetings of the legislative body of a
local agency shall open and public, and all persons shall be permitted to attend any
meeting….” Government Code section 54953(a).
11. The City of Whittier is a local agency as defined by the Brown Act.
12. “[A]ny congregation of a majority of the members of a legislative body at
the same time and place to hear, discuss, or deliberate upon any item that is within the
subject matter jurisdiction of the legislative body or the local agency to which it
pertains” is a meeting subject to the Brown Act’s requirements. Government Code
section 54952.2(a).
13. Government Code section 54952 defines “legislative body” as:
(a) The governing body of a local agency or any other local body created by state or federal statute.
(b) A commission, committee, board, or other body of a local agency, whether permanent or temporary, decision making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body. However, advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative
-5- VERIFIED PETITION FOR WRIT OF MANDATE
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bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter.
(c) (1) A board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that either:
(A) Is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity.
(B) Receives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency.
14. Pursuant to Government Code section 54952, the City Council is the
legislative body of the City of Whittier.
15. In 1983, the Whittier City Council enacted Ordinance No. 2300,
establishing the Uptown BID. 2 A true and correct copy of that ordinance is attached
hereto as Exhibit B. The Uptown BID was established pursuant to Section 36500, et
seq., of the California Streets and Highways Code, commonly referred to as the “Parking
and Business Improvement Area Law of 1989.” 3
16. Pursuant to the Parking and Business Improvement Law of 1989, section
36530, the City is required to create an advisory board “which shall make a
recommendation to the city council on the expenditure of revenues derived from the
2 The creation of the Uptown Business Improvement Area actually dates back to 1968, when the Whittier City Council enacted Ordinance No. 1878, creating the Uptown Business Improvement Area pursuant to Section 36000, et seq., of the California Streets and Highways Code. Presumably because of the restrictions imposed by Proposition 13 in 1978, which essential froze both the boundaries and the amount of assessments collected unless the City could get approval of a 2/3 supermajority of voters, the City reestablished the Uptown Business Improvement District in 1983, this time under Streets and Highways Code 36500, et seq., thereby allowing the City to reassess annually.
3 This act recodifies and supplants the 1979 law of the same name, now repealed.
-6- VERIFIED PETITION FOR WRIT OF MANDATE
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levy of assessments…, on the classification of business…., and on the method and basis
of levying the assessments.” The section actions allows the city council to “designate
existing advisory boards or commission to serve as the advisory board for the area or
may create a new advisory board for that purpose.” Id.
17. Every year, the City enters into an agreement with the Association. A true
and correct copy of the most recent agreement, dated December 14, 2102, is attached
hereto as Exhibit C. Pursuant to that agreement, the City agrees to provide all of the
assessments collected from the business within the Uptown BID to the Association.
Further, that agreement implements Streets and Highways Code 36530, and designates
the Association Board as the advisory body to the City Council, stating:
…as required by the California Streets and Highways Code, Section 36530, the City Council hereby appoints the Board of Director’s of the [Whitier Uptown Association] as the advisory board which shall make recommendations to the City Council regarding the expenditure of revenues derived from said Assessment…
18. The Uptown Association’s Bylaws (Exhibit A) provide that business within
the Uptown Business Improvement Area are involuntary members of the Uptown
Association:
All business located within the district, for which an annual business license tax is levied pursuant to Ordinance No. 2604 of Whittier Municipal Code (Appendix ‘A’), shall be members of the Whittier Uptown Association. Pursuant to the Ordinance the City of Whittier shall collect all assessments from those business and forward same to the Association.
19. Because the City Council designates, creates, and appoints the Association
Board as an advisory body to the City, as it must be pursuant to the requirements of
Streets and Highways Code, Section 36530, the Association Board is deemed a
legislative body as defined by Government Code 54952, and must therefore comply with
the Brown Act.
-7- VERIFIED PETITION FOR WRIT OF MANDATE
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20. However, the Uptown Association has never complied with the Brown Act
and denies that it is subject to the Brown Act.
21. In 2012, the Association Board voted to and did create a new corporation,
Friends of Uptown. Because Friends of Uptown was created by the Association, Friends
of Uptown’s Board of Directors is also a legislative body as set forth in Government
Code section 54952, and must therefore comply with the Brown Act.
22. However, Friends of Uptown has never complied with the Brown Act and
denies that it is subject to the Brown Act.
23. To attempt and correct these issues, Kelly Aviles of the Law Offices of
Kelly Aviles, counsel for Petitioners, sent a Brown Act demand to the City and to the
Uptown Association (“Demand”). In her correspondence, a true and correct copy of
which is attached here as Exhibit D, Ms. Aviles informs Respondents that the
Association Board and Friends of Uptown are subject to the Brown Act and asks them
to (1) void all illegally taken actions within the past 90 days pursuant to Government
Code section 54960.1, and (2) for an unconditional guarantee that the Association and
Friends of Uptown will comply with the Brown Act in the future.
24. On November 7, 2013, Assistant City Attorney Richard L. Adams, II, of
Jones and Mayer, responded on behalf of the City. A true and correct copy of Mr.
Adams’ correspondence is attached here to as Exhibit E. In his correspondence, Mr.
Adams responds that “the Association and the Friends of Uptown are not subject to the
Brown Act open meeting requirements.” Mr. Adams essentially takes the position that
when the Board meets its “advisory capacity,” it must comply with the Brown Act, but
that it can meet at other times to discuss other matters related to the Association
without complying with the Brown Act. Moreover, Mr. Adams denied that Friends of
Uptown is required to comply with the Brown Act. Finally, Mr. Adams alleges that the
Association has complied with the Brown Act when it has met in its “advisory capacity.”
-8- VERIFIED PETITION FOR WRIT OF MANDATE
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25. On November 13, 2013, Rick Gonzales, president of the Uptown
Association Board sent correspondence in response to the Demand. A true and correct
copy of that correspondence is attached hereto as Exhibit F. In his correspondence, Mr.
Gonzales states, in pertinent part, that:
The attached letter from Jones & Mayer serves as a response on behalf of the Uptown Association in its capacity as an advisory board to the Whittier City Counsel. In its non-advisory board capacity, the Uptown Association responds that it is not subject to the Requirements of the Brown Act.
26. Contrary to the allegations of both the City and the Association, the
Association Board has not acted in compliance with the Brown Act, in any capacity.
27. Contrary to the allegations of both the City and the Association, all of the
Association Board’s meetings include the collective acquisition and exchange of facts,
deliberation, and decision-making process on matters which fall within its subject
matter jurisdiction as an advisory body to the City Council on matters related to the
Uptown BID.
28. Petitioners have exhausted all other avenues to gain compliance, and now
are forced to file this action to ensure that the City, Uptown Association, and Friends of
Uptown comply with the Brown Act in the future.
29. As a direct result of Respondents’ failure to comply with the Brown Act,
members of the public, including Petitioners, have been harmed because they were
denied notice of and the opportunity to participate in meetings, a right which is
guaranteed by law.
30. Because Respondents have failed to acknowledge their violations of the
Brown Act, and has in fact denied that they are even subject to the Brown Act, a
position which has also been sanctioned by their legal counsel, Petitioners allege that
Respondents are likely to continue to violate the Brown Act in the future.
-9- VERIFIED PETITION FOR WRIT OF MANDATE
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31. The People of California have elevated the right to open government to
one protected by their State Constitution. The California Constitution, Article 1, Section
3, Paragraphs (a) - (b) state:
The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good. The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny. A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access.
32. Section 54960(a) provides that any interested person, such as
Petitioners:
…may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to ongoing actions or threatened future actions of the legislative body, or to determine the applicability of this chapter to past actions of the legislative body, subject to Section 54960.2 33. Section 54960.1(a) provides that any interested person, such as the
Petitioner, “may commence an action by mandamus or injunction for the purpose of
obtaining a judicial determination that an action taken by a legislative body of a local
agency in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956, or 54956.5 is
null and void under this section.”
34. Code of Civil Procedure § 1060 provides:
Any person interested … may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises … either alone or with other relief … The
-10- VERIFIED PETITION FOR WRIT OF MANDATE
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declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.
35. An actual controversy presently exists between Petitioners and
Respondents relating to: (1) the legal rights of the Petitioners and other members of the
public under the Brown Act; (2) the applicability of the Brown Act to Respondent the
Board of Directors of both the Uptown Association and the Friends of Uptown; and, (3)
the ministerial duties imposed upon the Respondents by the Brown Act.
36. Petitioner requests a judicial determination that Respondents are subject
to the Brown Act and that have violated the Brown Act.
37. This determination is necessary and proper because Respondents refuse
to submit to the Brown Act’s requirements or acknolwedge it they have violated the
Brown Act in any way. Therefore, Respondents are likley to continue to act in a similar
manner, in violation of the Brown Act.
38. Respondents have a ministerial duty to perform according to the laws of
the State of California, including the Brown Act.
39. Respondents have failed and refused to perform their ministerial duties as
required by the Brown Act.
40. Petitioners have a clear, present, and legal right to Respondents’
performance of their ministerial duties, as required by the Brown Act.
41. Respondents have a present legal duty and present ability to perform their
ministerial duties set forth in the Brown Act.
42. Petitioners have an interest in having the laws executed and public duties
enforced and, therefore, have a beneficial interest in the outcome of the proceedings.
43. Through this action, Petitioners seek no greater relief than would be
afforded to any other member of the public.
-11- VERIFIED PETITION FOR WRIT OF MANDATE
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44. Petitioners have exhausted any available administrative remedies.
Petitioners have sent a Brown Act Demand to Respondents, but Respondents refuse to
comply with the Brown Act or acknowledge and correct the violations. The only plain,
speedy, and adequate remedy left to Petitioners is the relief provided by Government
Code sections 54960 and 54960.1 and Code of Civil Procedure sections 1060 and 1085.
45. Therefore, this court should hold and declare that the Board of Directors
of Respondent WHITTIER UPTOWN ASSOCIATION and Respondent FRIENDS OF
UPTOWN are “legislative bodies” as defined by the Government Code section 54952,
and declare that have violated the Brown Act by meeting without complying with the
requirements set forth therein. Finally, this Court should order Respondents to
conform to the requirements of the Brown Act.
WHEREFORE, PETITIONER PRAYS AS FOLLOWS:
After a hearing on this verified petition, to be held on notice, this Court should:
1. Issue a declaration that:
a. Respondent/Defendant WHITTIER UPTOWN ASSOCIATION
BOARD OF DIRECTORS is a “legislative body” pursuant to the
Brown Act; and
b. Respondent/Defendant BOARD OF DIRECTORS OF FRIENDS OF
UPTOWN, INC. is a “legislative body” pursuant to the Brown Act.
c. any action taken by Respondents/Defendants WHITTIER
UPTOWN ASSOCIATION BOARD OF DIRECTORS and/or
BOARD OF DIRECTORS OF FRIENDS OF UPTOWN, INC. within
the last 90 days is void.
2. Cause a peremptory writ of mandate to issue, ordering
Respondents/Defendants WHITTIER CITY COUNCIL, WHITTIER UPTOWN
ASSOCIATION BOARD OF DIRECTORS and/or BOARD OF DIRECTORS OF
FRIENDS OF UPTOWN, INC. to perform as required by the Brown Act;
1 3· That the Petitioners/Plaintiffs recover attorneys' fees incurred in this
2 action pursuant to Government Code Section 6259 and/ or Code of Civil Procedure
3 Section 1021.5;
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4·
5·
For an award of costs incurred in this action; and,
For such other and further relief as the court deems just and proper.
-12-
VERIFIED PETITION FOR WRIT OF MANDATE
1
2
VERIFICATION (C.C.P. §§ 446 and 2015.5)
3 STATE OF CALIFORNIA, County of Los Angeles1
4 I am a member of CITIZENS FOR TRANSPARENCY IN UPTOWN, a Petitioner
5 in the above~entitled action or proceeding. I have read the foregoing VERIFIED
6 PETmON FOR WRIT OF MANDATE, AN INJUNCTION, AND DECLARATORY
7 REUEF FOR VIOLATIONS OF THE RALPH M. BROWN ACf and know the contents
8 thereof. I certify that the same is true and correct of my own lmowledge, except as to
9 those matters which are therein stated upon :my information and belief, and as to those
10 matters I believe it to be true.
11 This Verification was executed on November 22, 2013~ at Whittier, California.
12 I declare under penalty of perjury under th
13 the foregoing is true and correct.
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.. """' ... .u.a Andra on behalf of Petitioner
Citizens For Transparency in UptmiV11
VERIFIED PETITION FOR WRIT OF MANDATE
1 VERIFICATION
2 . ( C.C.P. §§ 446 and 2015.5)
3 STATE OF CALIFORNIA, County of Los Angeles,
4 I am a Petitioner in the above-entitled action or proceeding. I have read the
5 foregoing VERIFIED PETITION FOR WRIT OF MANDATE, AN INJUN(,'TION, AND
6 DECLARATORY RELIEF FOR VIOLATIONS OF THE RALPH M. BROWN ACT and
7 know the contents thereof. I ce1tify that the same is true and correct of my own
s knowledge, except as to those matters which are therein stated upon my information
9 and belief, and as to those matters I believe it to be true.
10 This Verification was executed on November 22, 2013, at Whittier, California.
11 l declare under penalty of perjury under the laws of the State of California that
12 the foregoing is true and correct.
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Richard A. Elias Petitioner
VERIFIED PETITION FOR WIUT OF MANDATE
Exhibit A
WHITTIER UPTOWN ASSOCIAITON
BY-LAWS
CHAPTER 1 -ORGANIZATION
Section 1. Name
The name of this association shall be the Whittier Uptown Association, a non-profit Corporation organized and existing under the laws of the State of California, with its principal office located in Whittier, California, hereinafter referred to as the "Association."
Section 2. Area
The Association's activities shall cover the area as directed in Whittier City Ordinance No. 2602 (Exhibit A), a copy of which is appended here as Appendix 'A'.
Section 3. Objectives
The objectives of the Association are as follow: a. The general promotion and marketing of business activities in said area; b. Promotion of public events which are to take place on or in public places within
the district area; c. Decoration of any public place in the area.
As policy, a current "Mission Statement" appears as Section 4.
Section 4. Mission Statement
The mission of the Whittier Uptown Association is to promote the businesses located in the Uptown district through marketing and production of quality events; to work with property owners and tenants to enhance the Uptown area by creating and maintaining a safe and welcoming environment; to communicate the collective interest of the Association and serve as a liaison to local government.
Section 5. Vision Statement
To create a unique shopping, service and entertainment destination centered around Uptown Whittier's historic charm.
1 Rev. 8/27/2013
CHAPTER II - MEMBERSHIP
Section 1. Active Membership
All businesses located within the district, for which an annual business license tax is levied pursuant to Ordinance No. 2604 of Whittier Municipal Code (Appendix 'A'), shall be members of the Whittier Uptown Association. Pursuant to the Ordinance, the City of Whittier shall collect all assessments from those businesses and forward same to the Association.
Section 2. Voluntary Membership
A. Non business-licensed entities (i.e. property owners, churches, non-profits) Voluntary membership is open to those non business-licensed entities within the boundaries of the Association as set forth in Chapter 1, Section 2, (Area).
B. Business-licensed entities outside the Uptown district Voluntary membership is open to those business-licensed entities outside the boundaries of the Association.
C. Terms Terms, conditions and costs of said voluntary membership shall be set fourth by the Board of Directors of the Association. Such dues as may be levied, shall be billed, collected; the resultant Voluntary Membership recorded by the Association's Executive Director. The Board of Directors must approve any voluntary memberships.
D. Dues Rate Voluntary Members Annual Fee:
E. Privileges
a. Non-business licensed property owners ... $300.00 b. Business-licensed owners outside the Uptown business district shall
be determined by the following scale based on the number of employees:
1-15 = $500 16-30 =$1,000 31-50 = $2,000 51+= $3,000
Voluntary members shall enjoy such privileges of membership as other Active Members, but may not serve on the Board of Directors.
Section 3. 'In Good Standing'
A member of any category above shall be deemed to be, "In Good Standing," when any and all assessments, dues, fees, or charges have been paid.
2 Rev. 8/27/2013
CHAPTER III - BOARD OF DIRECTORS
Section 1. Composition
The governing body of this Association shall be a Board of no fewer than nine (9) Directors, and no more than fifteen (15) Directors, unless changed by a duly adopted amendment to these By-Laws adopted by the vote or written consent of a majority of the Board of Directors, as then constituted. Directors shall be assessed members of the Association in good standing. The Board of Directors may also include 2 (two) Ex-Officio, non-voting members selected from outside the district area. Each Ex-Officio Board member will serve a one-year term and may serve as many as 3 (three) consecutive terms. Ex-Officio Board members will be selected and appointed by a majority of the existing Board of Directors.
Any time the Board of Directors meet and a quorum is required to vote on issues before the Board, whether during a regular or special Board meeting, a quorum shall not be deemed to exist if the majority of the Board members present at the meeting have the following in common: They are joint owners of a land parcel and/or building located within the Uptown District or they lease space from a common landlord who owns the land parcel and/or building in which they lease, regardless of whether the landlord(s) proactively manages his/her/their property or employs the services of a property manager. "
Section 2. Term of Office
A. Regular Term Each regular member of the Board of Directors shall be elected by the membership at large for a period of three (3) years and terms shall be staggered in such a manner that they will terminate for a minimum of three (3) members each year. A Director proposed to be removed from the Board shall only be regarded as a member for purposes of the majority requirement if they are present when the vote is taken.
B. Re-election Directors may be re-elected and serve for two (2) consecutive terms, and are then ineligible for re-election until after an interval of one (1) year.
C. Vacancies Vacancies on the Board among the Directors, which may occur during the fiscal year, shall be filled by appointment by majority vote of the Board of Directors. Appointment shall be to fill the unexpired term of the Ex-Director, unless the end of the Director's term is within three (3) months of the next Board election. Otherwise, the Board shall appoint a new Director within sixty (60) days of vacancy. The President may bring a candidate before the Board for nomination.
3 Rev. 8/27/2013
Section 3. Attendance
Directors are required to attend all Board meetings. Absence from two (2) consecutive meetings within a six (6) month period shall be considered cause to be dropped from Board membership. Missing a total of three (3) meetings within a six (6) month period shall be considered cause to be removed from Board membership. A majority vote shall be required for such action.
Section 4. Elected Officers
Officers elected from among the Directors shall be President, Vice-President, Secretary, and Treasurer to serve one (1) fiscal year.
A. Tenure The tenure of office for the four ( 4) elected officers shall be one (1) year.
B. Ex-officio In those instances where the term of a President terminates at the same time as their second consecutive term as Director, they shall nevertheless serve for an additional year in an ex-officio capacity. Ex-officio shall be given the courtesy of participating in Board meeting in an advisory capacity only without voting privileges.
C. Vacancies Vacancy on the Board by any of its officers that may occur during the fiscal year shall be filled immediately by the election of a new officer by and from the balance of the Directors, and if necessary to maintain a full Board, the Board of Directors shall appoint a member-at-large to fulfill the vacated position of the Board.
D. Resignation and Removal
E. Duties
Any office or director may be removes, with cause, by a majority of the Board of Directors while in office, at regular or special meeting of the Board. Any officer or director may resign at any time by giving written notice to the Board, President or Secretary of the Association. Any resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified in such notice, the acceptance of the resignation shall not be necessary to make it effective.
(1) President The President shall be the executive head of the Association, shall preside at all meetings of the Board or membership at large, and shall either represent or appoint a representative to all functions where the Association is to be represented. In the event of the President's absence, successive offices shall assume like duties. The President is an ex-officio member of every committee and shall be kept appraised of all activities and communications of said committees.
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Section 5. Voting
The President shall have other such powers as may be prescribed by the Board of Director or these By-Laws.
(2) Vice-President The Vice-President will, in the absence of the President, assume the duties of the President. The Vice-President shall have other such powers as may be prescribe by the Board of Directors or these By-Laws.
(3) Secretary The Secretary shall record the minutes of all official meetings or appoint a representative therefore, and shall present a typed original and duplicate of such minutes to the President within a reasonable time after each meeting. The President shall return, after Board approval, the signed original to the Secretary for entry into the official minute book, retaining the duplicate in their file. The Secretary shall record and publish all amendments; they shall be certain that a copy of the By-Laws is present at all meetings. The Secretary shall have other such powers as may be prescribed by the Board of Directors or these By Laws.
(4) Treasurer The Treasurer shall be custodian of all funds and either represent or cause to be presented a financial statement to the Board monthly, or on demand of the Board, a summary of the financial condition of the Association. The Treasurer shall have other such powers as may be prescribed by the Board of Directors or these By-Laws.
The Board may use the following means to vote on any issue before the Board of Directors: by voice or ballot at any Board of Directors meeting; via electronic mail (email); with a fax vote; or by telephone/cell phone. The President will direct the Association Executive Director to handle the voting process if not held during a Board meeting. Voting via electronic-mail (email) may be used for voting on such matters as, but is not limited to, the approval of Board meeting minutes, agendas, expenses, meeting schedules, promotions, marketing, press releases, advertising, by-law clarification and any other matter that the President deems urgent and would otherwise cause an undue encumbrance upon the Board of Directors, lest they be asked to attend a special Board meeting.
Section 6. Executive Committee
An Executive Committee comprised of the President, Vice President, Secretary, Treasurer, Governance Committee Chairperson and Executive Director is hereby created to act on behalf of the Board of Directors whenever it is not reasonably possible to have the full Board of Directors meet to address urgent issues. Any decisions made by the Executive Committee must be approved during the next regularly scheduled Board of Directors meeting. The Executive Committee is at all times accountable to the full Board of Directors and, as such, may not bind the WUA to any contract or course of action that would normally require the approval of the full Board of Directors. The Executive Committee may also meet to discuss the unfinished business of previous Board meetings and other issues that require more time than would normally be available during a
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regularly scheduled Board meeting. The date, frequency and location of the Executive Committee meetings will be determined by the Committee itself and is not limited by any other provision of these bylaws.
CHAPTER IV- ELECTIONS
Section 1: Composition of the Board
The Board of Directors shall be composed of no fewer than nine (9) and no more than fifteen (15) Directors. One third of Directors shall be elected annually to serve for three (3) years or until their successors are elected and have qualified.
The government and policy-making responsibilities of the Association shall be vested in the Board of Directors, which shall control its property, be responsible for its finances, and direct its affairs . Any time the Board of Directors meet and a quorum is required to vote on issues before the Board, whether during a regular or special Board meeting, a quorum shall not be deemed to exist if the majority of the Board members present at the meeting have the following in common: They are joint owners of a land parcel and/or building located within the Uptown District or they lease space from a common landlord who owns the land parcel and/or building in which they lease, regardless of whether the landlord(s) proactively manages his/her/their property or employs the services of a property manager.
Section 2: Selection and Election of Directors (See timetable below.)
A. Election Committee. At the regular January Board meeting, the President shall appoint an Election Committee of three (3) persons. The Election Committee shall consist of two (2) members of the Board of Directors and one ( 1) Association member in good standing. The President shall designate the chairman of the committee.
Prior to the regular February Board meeting, the Election Committee shall present to the President a slate of (number of vacancies) candidates to serve three (3) year terms to replace the Directors whose regular terms are expiring. Each candidate must be an active member in good standing and must have agreed to accept the responsibility of directorship.
No Board member who has served two consecutive three-year terms is eligible for election for a third term. A period of one (1) year must elapse before eligibility is restored.
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B. Publicity of Nominations. One month prior to the election, the Association shall notify its active members of the upcoming election, and the transmission shall contain information pertaining to qualifications for interested candidates, and the planned process of such election, including but not limited to, information on where to collect a candidate application.
C. Nomination Procedure. 1. Qualification. At minimum, candidates must be active members in good
standing, and must have expressed a willingness to accept the responsibility of directorship.
2. Application Process. The Association shall make available candidate applications to interested parties as designated in Section 2(B). It is the sole responsibility of applicant to fully complete all required application information and return to the Association by the filing deadline. All applications received after the filing deadline will be void and not accepted.
If no candidate application is filed within the designated period, the nominations shall be closed and the nominated slate of (number of vacancies/Section A) candidates shall be declared elected by the Board of Directors at the regular March Board meeting.
D. Voting Procedure. names of all candidates shall be arranged on a ballot in alphabetical order. Instructions will be to vote for (number of vacancies) candidates only. The President shall mail this ballot to all active members at least 15 calendar days before the regular March Board meeting.
The ballots shall be marked in accordance with instructions printed on the ballot and returned to the Association office within ten (10) days. The Board of Directors shall at its regular March Board meeting declare the candidates with the greatest number of votes elected (based on the number of available positions).
E. Judges. The Election Committee shall appoint two (2) members of the Board of Directors, and at least one ( 1 ), but not more than three (3 ), judges who are not members of the Board of Directors or candidates for election. One of the appointed members of the Board of Directors will be designated chairman. Such judges shall have complete supervision of the auditing of the ballots. They shall report the results of the election to the Board of Directors within five (5) business days of the voting deadline.
Section 3: Seating of New Directors
All newly elected Board members shall be seated at the regular April Board meeting and shall be participating members thereafter. Retiring Directors sllall continue to serve until the new Directors are installed.
Section 4: Vacancies
A. Absence. A member of the Board of Directors who shall be absent from three (3) consecutive regular meetings of the Board of Directors shall automatically be removed
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from membership on the Board unless confined by illness or other absence approved by a majority vote of those voting at any meeting thereof.
B. Appointments. The Board of Directors shall fill vacancies on the Board of Directors, or among the Executive Committee. If the vacant position is for Director, a current Director may nominate an active member in good standing who must have agreed to accept the responsibility of directorship, and such position shall be approved by a majority vote. If the vacant position is for an Executive Committee position, a current Director shall nominate a fellow Director, and such position shall be approved by a majority vote.
All appointments shall serve for three (3) years or until their successors are elected and have qualified. The appointed Board Member may serve two (2) consecutive three-year terms but must allow for a period of one (1) year to elapse before eligibility is restored.
Section 5: Policy
The Board of Directors is responsible for establishing procedure and formulating policy of the organization. It is also responsible for adopting all policies of the organization. These policies shall be maintained in a policy manual, to be reviewed annually and revised as necessary.
Section 6: Management
The Board of Directors shall employ necessary organizational staff and shall establish the salary and other considerations of employment.
Section 7: Indemnification
The Association may, by resolution of the Board of Directors, provide for indemnification of any and all current or former Executive Committee members, Directors and employees against expenses actually and necessarily incurred by them in connection with the defense of any action, suit, or proceeding in which they or any of them are made parties, or a party, by reason of having been Executive Committee members, Directors or employees of the Association, except in relation to matters as to which such individuals shall be adjudged in such action, suit or proceeding to be liable for negligence or misconduct in the performance of duty and to such matters as shall be settled by agreement predicated on the existence of such liability for negligence or misconduct.
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BOARD OF DIRECTORS ELECTION TIMETABLE:
MONTH ACTION TO TAKE President appoints Election Committee with Board's approval at regularly scheduled Board meeting
August (Chapter 3 Section 2A). Publicity of election mailed to members. Candidate
October applications made available.
Once candidate application deadline closes, ballots November are mailed to active members. (Chapter 3, Section
2B, C and D). Election of Directors at regularly scheduled Board
November meeting (Chapter 3 Section 2D). Election of Executive Board at regularly scheduled Board meeting, prior to installation of new Board
November members. (Section tbd) Orientation of new Officers and Directors; plan new program of work; appointment and orientation of new committee chairmen, committee members and
February other action groups· and plan budget.
CHAPTER V- FINANCES
Section 1. Banking
All monies collected for the use of the Association shall be deposited with an accredited banking institution(s) in the City of Whittier. Such funds shall be subject to withdrawal upon authorization of any one of the signatures designated by the Board of Directors . Proper written notice and specimens of signatures are to be filled with the depository as changes occur. If the Treasurer, President or Executive Director is ill, out of town on business, on vacation or otherwise unavailable to co-sign a disbursement check in an amount greater than $1,000.00 (one thousand dollars), then a vote shall be taken among the members of the Executive Committee authorizing the remaining bank signatories to issue said disbursement check.
The fiscal year shall commence on January 1 and end on December 31 of each year. Tax returns shall be filed no later than April 15 of each fiscal year.
Section 2. Authorization
No funds shall be distributed in any form without authorization of the Association Executive Director and/or the President in compliance with the budget as approved by the Board of Directors.
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Section 3. Indebtedness
No indebtedness shall be created, appropriated or dispensed unless the amount thereof is at that time in general fund of the group of approved in advance as set forth in the budget, which budget has been approved by the Board of Directors. All approved contracts must have two (2) signatures; Treasurer and committee chairperson and/or Association Manager.
Section 4. Audit
The Association shall employ, at the beginning of each fiscal year, a qualified Certified Public Accountant, who shall at such time be specified by the Board of Directors, examine the records, books, inventories, and reports of the Executive Director or any and all other employees who receive, handle or disburse Association funds. As soon as practical after the end of the fiscal year and final audit and report shall be submitted by such accountant to the Board of Directors .
CHAPTER VI - MEETINGS
Section 1. Regular Board Meetings
The Directors shall meet once a month, on a designated day at a place in Uptown Whittier, designated by the Board of Directors. The general membership shall be informed of the location of said meeting and shall be given sufficient notice of any change in time or location of the monthly meetings. The agenda for the meetings shall be made available in copies at the Association office, 72 hours prior to the meeting date and time.
Section 2. Special Board Meetings
The President may call a special meeting of the Board of Directors by official written notice to all Board members at least twenty-four (24) hours prior to the time of the proposed meeting.
Section 3. Quorum
A majority of the then currently authorized number of Directors shall be necessary to constitute a quorum for transaction of business. The action of a majority of Directors present at any meeting at which there is a quorum, when duly assembled, is valid.
Section 4. Annual Planning Meeting
An annual planning meeting shall be held no later than sixty (60) days after the close of the annual election. Notice shall be provided to any interested members days prior to the meeting.
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CHAPTER VII - COMMITTEES
Section 1. Appointments
Immediately upon taking office, the President will appoint or cause to be appointed committee chairmen to conduct the business of the Association. Any appointee must be a member of the Whittier Uptown Association in good standing.
Section 2. Chairperson's Responsibility
No committee or committee chairperson shall have the power to commit the Association on any matter of general policy, nor to commit the Association to any financial obligations, beyond the Board approved budget, without prior approval from the Board of Directors. The Board of Directors must approve all other financial and general policy committee decisions before enactment.
CHAPTER VIII- EMPLOYEES
Section 1. Executive Director
The Board of Directors shall employ an Executive Director for the Association. The salary and terms of employment of the Executive Director shall be fixed and controlled by the Board of Directors. The term of employment shall be consistent with the fiscal year of the fiscal year of the Association, or as agreed upon by the Executive Director and Board of Directors .
Section 2. Executive Director's Duties
The Executive Director shall have charge of office staff, office property, equipment and other items/materials of said Association. He or she must have the approval of the President and/or Treasurer for purchases over one thousand dollars ($1,000). Any expense less than one-thousand dollars ($1 ,000.00) will not require a second signature from either the President or the Treasurer. The Executive Director shall collect statistics and other information for the use of the Association, conduct its correspondence, collect the dues and fees of members and other debts due to the Association and account for the same. Further, they shall perform all duties required by the Board of Directors, including, but not limited to the job description.
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CHAPTER IX - AMENDMENTS
These By-laws may be amended by a two-third (2/3) vote of a quorum at any meeting of the Board of Directors. Amendments to these By-Laws shall be submitted in writing and on the Board written agenda at least one (1) Board meeting prior to said meeting that the voting will take place. Agendas are to be made available through the Association office.
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Whittier Uptown Association
Operation Procedures
The operating principles stated below are to serve as procedures to the Board of Directors of the Whittier Uptown Association (WUA). Each member of the Board is charged with the responsibility of working together with every other member to further the basic goal of organization; "To promote the progress and welfare of the Uptown Business Community." In order to achieve this mission, all Directors will endeavor to carry out their duties in accordance with the following list of procedures:
1. The fundamental role of the Board is to determine the direction and activities of the Uptown Association through volunteer and staff implementation.
2. Each Director assumes responsibility for loyalty to each other, the Board, the Association and the common goal.
3. Conduct of each Board Member shall be beyond reproach, both in Board Meetings and in the General Public. Board members are personal representatives of the Whittier Uptown Association. Conduct unbecoming a Board Member may be deemed reason for dismissal from the Board by a two-thirds vote of the Board. Any Board member or Officer who is removed from the Board for cause will not be eligible to serve on the Board for a period of five (5) years, whether by appointment or by vote of the general membership. In addition, said former Board member will be required to submit himself or herself to a formal Board review to determine eligibility, should he or she decide to seek re-election to the Board after the five (5) years have passed.
4. When, outside of Board meetings, a Director finds himself or herself in serious disagreement with another Director, the President shall arrange a one-to-one meeting between them to resolve the disagreement.
5. The President and Executive Director shall set the agenda. Matters will not be brought before the Board unless all individuals concerned have been notified, except in extreme emergencies.
6. Information discussed in closed session (personal, litigation, etc.) shall be kept in the strictest confidence. Any breach of this procedure shall be grounds for dismissal from the Board with a two-thirds (2/3) vote of the Board.
7. The President, Executive Director, or any appointed representatives shall be the liaison between the media and the Whittier Uptown Association.
8. The WUA staff shall supply the Directors with all necessary information about matters to come before the Board, so that Directors may study such information carefully and seek additional clarification from the President prior to the Board Meeting.
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9. WHITTIER UPTOWN SUBSCRIBERS (newsletter): These entities, outside of the assessment boundaries, which wish to support the Uptown and be aware of the happenings thereof, shall pay an annual fee of $150.00
The fee will include the following rates: a) They shall be sent the newsletter and all inserts at no charge. b) Be able to insert promotional materials into the newsletter (the subject matter being at the discretion of the President and the Executive Director) for a fee of $50.00. Those who are not assessed members; volunteer members or subscribers do not have this service available to them. c) Opportunity to be volunteer in all events (this does not include steering committees.)
10. These Operating Procedures may be changed by a simple majority vote of the Board of Directors.
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ORDINANCE NO. 2604
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WHITTIER RELATING TO THE UPTOWN WHITTIER BUSINESS IIYIPROVEMENT AREA
WHEREAS, pursuant to the Section 365000 et seq. of the Streets and Highways Code of the State of California, the Whittier City Council adopted the following Resolutions of Intention on April13 , 1993.
"RESOLUTION NO. 6376: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WHITTIER DECLARING ITS INTENTION TO MODIFY BENEFIT ZONES AND THE METHOD OF CALCULATING ASSESSMENTS WITHIN THE UPTOWN WHITTIER BUSINESS IIYIPROVEMENT AREA."
RESOLUTION NO. 6377 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WHITTIER DECLARING ITS INTENTION TO MODIFY THE CLASSIFICATION OF BUSINESSES ASSESSED WITHIN THE UPTOWN WHITTIER BUSINESS IIYIPROVEMENT AREA"; and
WHEREAS, public hearings regarding modifications to benefit zones, the method of calculating assessments, and the classifications of business assessed were conducted May 4, 1993;and
WHEREAS, at said hearing all written and oral protests made or filed were duly heard. Evidence for and against proposed actions was received, and full , fair and complete hearings were granted and held; and
WHEREAS, all protests, both written and oral, are hereby overruled and it was determined by the Council that there was no majority protest within the meaning of Section 365000 et seq. of the Streets and Highways Code; and
WHEREAS, the City Council finds that businesses conducting their activities within the Uptown Whittier Business Improvement Area will benefit by the expenditure of funds raised by the charges as contemplated by said Section 365000 et seq. of the Streets and Highways Code.
THE CITY COUNCIL OF THE CITY OF WHTITIER DOES ORDAIN AS FOLLOWS:
Section 1. The Whittier Municipal Code is hereby amended by adding Chapter 5.06 to Read as follows :
Sections:
5.06.10 5.06.20
UPTOWN WHITTIER BUSINESS IIYIPROVEMENT AREA
Establishment of Area Description of Area
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5.06.30 5.06.40 5.06.50 5.06.60 5.06.70
Benefit Zones Classification of Business and Bases of Assessment Payment of Assessment Charge Transferability Statement of Charge Due
These By-Laws and Operating Procedures were updated and corrected on January 3, 2013.
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Exhibit B
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ORDI·NANCE NO. 2300
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WHIT-TIER ESTABLISHING A BUSINESS IMPROVEMENT AREA tN THE cii't · oF winTTIER.
THE CITY COUNCIL OF THE CITY OF IVHITTIER DOES HEREiB,Y ORDAIN AS FOLLOWS :
SECTION 1. That the City Council of the City of Whitltier hereby finds, determines and declares as follows:
{a) That pursuant to Section 36500 et seq . of the Streets and Highways Cbde of th~ State of California, the City Council adopted, on April 19, 1983, that certain Resolution No. 5300, entitled, "A Resolution of the City Council of t,he City of Whittier Declaring its · Intention ·to Establ:ish a Business Improv:eme.n,t Area - in the C'ity o .f Wh•i-ttier", and caused said r~s·oluiion be to duly published and mailed as provided by law; and
{b) That a public hearing concerning the formation of said Business Impr0vement Area (-hereinafter "Area") was held on May 10, 198.3 , i'lt the hour of 7:30 P.M. in the City Council Chambers of the City Hall of the City of Whittier; · and
{c) That at said hearing all written and oral protests made or filed were duly hea.rd, evidence for and against the .proposed action was received, and a full, fair and complete hearing was granted and held ; and
(d) That all protests , both wr i tten and oral, are hereby overruled and it was determined by the Council that there wa·s no majority protest within the meaning of Section. 36500 et seq., and of the Streets and Highways Code ; and ·
{e) That the public interest , convenience and necessity require the establishment of the proposed Area ; and
{f) That businesses conducting their activities within the Area will bene-fit by the expenditure of funds raised by the charges ·as contemplated by said Section 36500 et ~· of the Streets and Highways Code.
SECTION 2 . ESTABLISHMENT OF AREA . Pursuant to sect;ion 36500 et ~· of the Streets and Highways Code of the :State of California, a busine-ss improvement area to be de ·si:g.nated as "Uptown Whittier Business ·Improvement Area" of the 1city of Whittier" , is hereby created and established.
SECTION 3. DESCRIPTION OF AREA . The Area shall incl.ude all of the real property included within the boundari~s described on Exhibit "A" , attached hereto and incorporaited herein by this reference.
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SECTION 4. SYSTEM OF CHARGES. That attached hereto, marked Exhibit "B", and incorpor~ted herein by this reference·, is the system of charges which shall be assessed upon the various classes of business which are not exempt by law and which are located within such Area.
(a} P.ayrnent of Charge . The charges hereby assessed shall be due and payable and shall be paid at the same time and in the same manner that business licenses taxes imposed by the City Code are due and payable .
(b) Payment Prerequisite to License .
(1) No business license shall be issued pursuant to the Whittier Municipal Code unless the business license charge hereby imposed is paid together with the business license payable pursuant to the said code; and
(2) A business license shall be considered unpaid and penalites shall be assessed upon the total amount at the rate spec i fied in the Municipal Code, until such time as both the business license tax and the charges imposed hereunder are paid in full.
(c) Multiple Businesses.
(l) Where one owner has multiple businesses in the same class or combinations of two or more of the above classes , all of which are at the same location; the total charge for that location under this Ordinance shall be the highest charge of any one of those businesses when considered individually according to their classifications herein.
(2) Where multiple owners have businesses in the same class or combination of two or more of the above classes, all of which are at the same location; the total charge to each owner under this Ordinance shall be the highest charge of any one of the individual owner's businesses at the location when considered according to their classification herein.
(d) Charge Transferability. There shall be no additional charge for any business which transfers the same business to any location within the Area.
(e) Refusal to Pay Charde. No person shall fail or refuse to pay the additional business license charge imposed.
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(f) Statement of Charge Due. A written statement, on such forms as may be required or furnished-by the City Manager, shall be filed when the charoes are paid.
SECTION 5. VOLUNTARY CONTRIBUTION. Any business which is exempt from the payment of a business license tax by reasQn of the provision of the Constitution of the United States or the State of California, or by business class exemption as designated in (a) above, may make voluntary contributions to said Area for the purposes provided in this Ordinance •
. ; SECTION 6. USE OF REVENUES. Uses of revenues derived from charges imposed pursuant to this Ordinance shall be limited to the following:
(a) decoration of any public place in the Area;
(b) promotion of public events which are to take place on or in the hrea;
(c) furnishing of music in any public place in the Area; and
(d) the general promotion of business activities in the Area.
SECTION 7. FUND. There is created a special fund •designated as "Uptown-whittier Business Improvement Area Fund~ into which all revenues derived from charges and contributions under this Ordinance shall be placed and such funds shall be used only for the purposes specified in this Ordinance.
SECTION 8. EXPENDITURES. The City Council shall annually approve a budget to include an estimate of expenditures to be made from the Uptown Whittier Business Improvement Area ·Fund to carry out the purposes of this Ordinance.
SECTION 9. EFFECTIVE DATE. The charges imposed by this Ordinance shall be due and payable immediately upon the effective date of this Ordinance upon all business license taxes levied thirty (30) days after adoption of this Ordinance and each day thereafter.
SECTION 10. If any action, sentence, clause or phrase of this Ordinance i s, for any reason, held by a court of cdmpetent jurisdiction to be invalid, such decision shall not ~·ffect the validity of the remaining portions of this Ordinance. The City Council of the City of Whittier hereby decl~re• that it would have passed and does hereby pass this 'sect~on and each sentence, section, clause -and phrase hereof, irrespective of the fact that any one or more sections, sentfnces, clauses, or phrases be declared invalid or unconsti tu·tional.
SECTION 11. That the City Clerk shall certify to the adoption of this Ordinance and cause the same to be publtshed in the manner prescribed Oy law.
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PASSED AND APPROVED this 24th day of ____ Ma_y~---· 1983.
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EXHIBIT "A"
BUSINESS IMPROVEMENT AREA
That portion of the City of Whittier, County of Los Angeles, State of California, bounded and described as follows:
Beginning at the centerline intersection ofF riends Avenue, 50 feet wide, and Penn Street, 60 feet wide; thence west along said centerline of Penn Street to the centerline of Washington Avenue, SO feet wide; thence south along said centerline of Washington Avenue to a line parallel with and lying 80 feet southerly of said centerline of Penn Street; thence west along said parallel line to the centerline of the alley west of Milton Avenue; thence north along said alley centerline to a line parallel with and lying 140 feet southerly of the centerline of Philadelphia Street, 80 feet wide; thence west along lost said parallel line to a line parallel with and lying 125 feet westerly of the centerline of Pickering Avenue, 70 feet wide; thence north along last said parallel line 140 feet to said centerline of Philadelphia Street; thence west along lost said centerline of Philadelphia Street I 0 feet; thence north parallel to said centerline of Pickering Avenue to a line parallel with and lying 120 feet northerly of said centerline of Philadelphia Street; thence east along lost said parallel line to the centerline of the alley west of Milton Avenue; thence north· along lost said alley centerline and its northerly prolongation to the centerline of the alley north of Hadley Street; thence east along lost said alley centerline to the northerly prolongation of the easterly line of Lot 12 Block 19 of Harvey and Ricker's Addition, as per mop recorded in Book 26, pages 67 and 68 of Miscellaneous Records of said county; thence south along said easterly line of said Lot 12 and its southerly prolongation, which is a line parallel with and lying 175 feet westerly of the centerline of Friends Avenue, to a line parallel with and lying 170 feet northerly of said centerline of Philadelphia Street; thence east along lost said parallel line to the centerline of the alley east of Painter Avenue; thence south along lost said alley centerline and its southerly prolongation to a line parallel with and lying 140 feet southerly of said centerline of Philadelphia Street; thence west along last said parallel line to the center I ine of the alley west of Friends Avenue; thence south along lost said alley centerline to the westerly prolongation of the northerly line of Lot 7 Block 31, Mop of Whittier, as per mop recorded in Book 21 pages 55 and 56 of Miscelloneo\Js Records of said county; thence east along the northerly line of said Lot 7 and its westerly and easterly prolongations to said centerline ofF riends Avenue; thence south along '·1st said centerline of Friends Avenue to the point of beginning.
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EXHIBIT "B"
M'XUAL CHARGES TO BUSINESSES LOCATED IN THE BUSINESS IMPROVEMENT AREA SHALL · BE AS .FOLLOWS:
(1) BENEFIT NO. 1: Benefit Zone No. 1 shall · include all businesses in the.: Area, which have a street address upon either Greenleaf Avenue or Philad!elphia Street:
(a) CLASSIFICATION A:
Those businesses within Benefit Zone No. 1 which are primarily engaged in retail sales, except as otherwise hereinafter expressly described:
(b) CLASSIFICATION B:
Food Markets
(c) CLASSIFICATION C:
commercial parking lots, taxicab companies
(d) CLASSIFICATION D:
Shoeshine stands Apartment Houses
(e) CLASSIFICATION E:
B·eauty and barber shops
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An amount equal to twice the annual business license tax presently imposed upon such businesses pursuant to said Section 6100 et seq . of said Whittier Municipal Code.
An amount equal to onehalf of the annual business license tax presently imposed upon such businesses pursuant to said Section 6100 et seq . of the Whittier Municipal Code .
An amount equal to onehalf of the annual business license tax presently imposed upon such businesses pursuant to Section 6100 et seq. of the Whittier Municipal Code, or the sum of $10.00, whichever is the lesser figure.
An amount equal to one-half of the annual business license tax presently imposed upon such businesses pursuant to Section 6100 et s of the Whittier Municipal Code, or the sum of $2.50, 1Nhichever is the lesser figure.
An amount equal to one time the amount of annual license tax presently imposed upon such businesses pursuant to Section 6100 et seq. of the Whittier Municipal Code .
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(f) CLASSIFICATION F: • 0.
All other businesses
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An amount equal to two and one-half times the amount of annual business license tax presently imposed upon such businesses pursuant to Section 6100 et seq. of the Whittier Municipal Code.
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(2) BENEFIT ZO~'E NO. 2: Benefic Zone No. 2 shall include all businesses located within the proposed Area, other than those included within the Benefit Zooe No. 1:
(a) CLASSIFICATION A:
Those businesses within Benefit ·zone No. 2 which are primarily engaged in retail sales, except as otherwise hereinafter expressly described
(b) CLASSIFICATION B:
Food Markets
(c) CLASSIFICATION C:
Commercial parking lots, taxicab companies
(d) CLASSIFICATION D:
Shoeshine stands Apartment Houses
(e) CLASSIFICATION E:
Beauty and barber shops
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An amount to ''ne and one-half time,; the annual business license cax presently imposed upon such businesses pursuant to Section 6100 et seq. of the Whittier Nunicipal Code,
An amount equal to one-half of the annual business license tax presently imposed upon such businesses pursuant to said Section 6100 et seq. ,,f the Whittier Municipal Cod ·e.
An amount equal to onehalf of the annual business license tax presently imposed upon such business pursuant to Section 6100 et seq. of the Whittier Municipal Code, or the sum of $10.00, whichever is the lesser figure.
An amount equal to onehalf of the annual business license tax presently imposed upon such businesses pursuant to Section 6100 et seq. of the Whittier Municipal Code, or the sum of $2.50, whichever is the lesser figure.
An amount equal to one time the amount of annual license tax presently imposed upon such businesses pursuant to Section 6100 et seq. of the Whittier Municipal Code.
237
(f) CLASSIFICATION F : . . .
All other businesses
- 4 -
An amount equal to t~o
and one- half times the amount of annual business l icense tax presently imposed upon such businesses pur suant t o Section 6100 et seq . of the Whittier Municipal Code .
I
I
. '
'
'I
. ; . . . .
:·----
238
CilY OF WHITTIER ss
STATE OF CALIFORNIA
I, Sandra Max, Deputy City Clerk in and for the City
of Whittier, California, hereby certify that the above and
foregoing is a true and correct copy of Ordin.anca No. 2300, adopted
by the City Council of the City of Whittier in regular session,
Tuesday, the 24th day of May, 1983, and same was passed by the
following vote:
Ayes: v. A. Lopez G. B. Chandler
R. L. Henderson M. D. Claxton
Noes: None
Absent: L.A. Strong
WITNESS my hand and the official seal of the City of
Whittier this 25th day of May, 1983.
Published according to law, May 30, 1983
239
I
I
Exhibit A was not included in the Ordinance Book. I checked the agenda packages and found this
included as part of a report. It may be the Exhibit for Resolution 4219 which is the resolution that also
helped to establish the Business Improvement Area. The text of Resolution 4219 is substantially the
same as Ordinance 1878. -- EJ Boranian, IT/Records Manager (04/30/2010)
I
I
EXHIBIT "A"
That portion of the City of llhittier, County of Los Angeles. State of California, bounded and described as follows:
Beginning at the centerline intersection of Friends Avenue, SO feet wide, and Penn Street, 60 feet wide; thence west ~long said centerl ine of PenD Street to the centerline of Washington Avenue, SO feet wide; thence south along said centerline of Uashington Avenue to a line pat:<U.lel with and lying 80 feet southerlj• of said centerline of Penn Street; thence~1 along sald parallel line to the centerline of the alley west of Milton Avenue; thence north along said alley centerline to a line parallel with and lying 140 feet southerly of the centerline of Philadelphia Street, 80 feet wide; thence west along last said parallel line to a line parallel with and lying 125 feet westerly oi the centerline of Pickering Avenue, 70 feet wide; thence north along last said parallel line 140 feet to said centerline ~f Philadelphia Street; thence west along last said centerline of Philadelphia Street 10 feet; thence north parallel to said centerline of Pickering Avenue to a line parallel with and lying 120 feet nort~erly of said centerline of Philadelphia Street; thence east along last said parallel line to the centerline of the alley west of Milton Avenue; thence north along last said alley eenterli~and its northerly prolongation to the centerline of the alley north of Badley Street; thence east along last said alley centerline to the northerly prolongation of the easterly line of Lot 12 Block 19 of Harvey and Rieker's Addition, as per cap recorded in Book 26, pages 67 and 68 of Miscellaneous Records of said county; thence south along said easterly line of said lot 12 and its southerl y prolongation, which is a line parallel with and lying 175 feet westerly of the centerline of Friends Avenue, to a l~ne parallel with and ly~ng 170 feet northerly of said centerline of Philadelphia Street; thence east along last said parallel line t:O the centerline of the alley east of Painter Avenue; thence south along last sai d alley centerline and its southerly prolongation to a line parallel with and lying 140 feet southerly of said centerline of Philadelphia Street; thence west along last s~id parallel line to the centerline of the alle) west of Friends Avenue; thence south along last said alley centerline to the westerly prolongation of the northerly line of Lot 7 Block 31, Map of Whittier. as per map recorded in Book 21 pages 55 and 56 of Miscellaneous Records of said county; thence east along the northerly line of said Lot 7 and it- westerly and east~rly prolongations to said centerline of Friends Avenue; th~nce south along last said centerline of Friends Avenue t o the point of beginning.
UPTO\o1N \miTIIER PROMOTIONAL DISTRt CT
EXHIBIT "A"
Digitally signed by EJ Baran ian
DN: cn=EJ Boranian, o=City of Whittier, ou=IT/ Records Management, City Clerk-Treasurer Dept, email=ejboranian@cityofwhittier, c=US Date: 2011.08.19 17:48:23 -07'00'
Exhibit C
AGREEMENT
THIS AGREEMENT is made and entered into this lfdL day of 2012 by and between the CITY OF WHITTIER, a municipal corporation, hereinafter referred to as "CITY", and the WHITTIER UPTOWN ASSOCIATION, a California non-profit corporation, hereinafter referred to as "ASSOCIATION".
WITNESSETH
The parties hereto do agree as follows:
1. RECITALS. This Agreement is made and entered into with respect to the following facts:
A. That the City Council has heretofore established a Business Improvement Area, (hereinafter "Area"), pursuant to Section 36500 et seq. of the Streets and Highways Code of the State of California, by the adoption of Ordinance No. 1878 on November 26, 1979, Ordinance No. 2300 on May 24, 1983, Ordinance No. 2604 on June 1, 1993, Ordinance No. 2636 on November 1, 1994, Ordinance No, 2831 on November 25, 2003, and Ordinance No. 2851, on November 23, 2004, and Ordinance No. 2904 on November 20, 2007, (hereinafter collectively referred to as the "Ordinance").
B. That pursuant to the Ordinance, and enabling law, an additional business license tax (the "Assessment") will be imposed on all businesses located within said Area; and
C. That the said taxes as levied shall be utilized exclusively for the purposes, as set forth in the Ordinance: and
D. That, as required by the California Streets and Highways Code, Section 36530, the City Council hereby appoints the Board of Director's of said ASSOCIATION as the advisory board which shall make recommendations to the City Council regarding the expenditure of revenues derived from said Assessment; and
E. That ASSOCIATION has as its primary purposes, the promotion of all businesses located within said Area and the economic well being of the community; and
F. That all persons with a valid business license engaged in business within said Area are members of said ASSOCIATION; and
G. That ASSOCIATION is an organization qualified to establish, promote and conduct the programs, as permitted, pursuant to the Ordinance, has provided such services pursuant to an agreement with the CITY
I
WUA Annual Agreement Page 2
since 1970, and has agreed to continue to do so upon the terms and conditions as hereinafter set forth; and
H. That the City Council has heretofore determined that the public interest, convenience and necessity require the execution of this Agreement to provide for the services of ASSOCIATION as hereinafter set forth.
NOW, THEREFORE, CITY and ASSOCIATION, in consideration of the recitals, mutual promises, covenants, representations and agreements set forth below, hereby promise, covenant, agree and represent as follows:
Section 1. TERM OF AGREEMENT
1.1. The term of this Agreement shall be for a period of one (1) year commencing on January 1, 2013 and terminating on December 31, 2013; provided that either party hereto may, in advance of the expiration of the term of this Agreement, terminate thiS Agreement as follows:
1.2. That ASSOCIATION may terminate t11is Agreement by giving CITY a sixty (60) day written notice of intent to so terminate, said termination shall be effective on the sixty-first (61 st) day after the mailing of such notice; or
1.3. CITY may terminate this Agreement by giving ASSOCIATION a sixty (60) day written notice of intent to terminate. Said notice must be authorized by a four-fifths vote of the City Council. Said termination shall be effective on the sixty-first (61 "') day after the mailing of such notice. ·
Section 2. ASSOCIATION RESPONSIBILITIES
2.1 The ASSOCIATION will perform promotional services and cooperate with the City Manager and such personnel as the City Manager designates, to coordinate and implement projects and programs developed to benefit the businesses in the Area and to provide plans and repot1s for the services provided.
2.2 The ASSOCIATION shall submit to the City Manager, in a form approved by him and in conformance with accepted industry standards, and to the sole satisfaction of the City Manager for consideration and approval by the City Council, project plans and reports including the following:
2.2.1 BUDGET. This budget shall estimate the revenues and expenditures for the calendar year including budgets for all proposed events. No expenditure shall be made unless it is
WUA Annual Agreement Page 3
included in the budget. The budget attached hereto as Exhibit A, is hereby incorporated herein by this reference.
2.2.2 REPORTS. Quarterly Reports shall reflect the purpose and amount of all expenditures, including any budget changes that have occurred and any changes to proposed events. Said reports shall be due in the office of the City Manager no later than the 301
h day of the months of April, July, October and January, and shall report on the activities for the preceding calendar quarter.
2.2.3 INDEPENDENT AUDIT. The ASSOCIATION shall employ the services of a qualified Independent Certified Public Accountant, at its sole cost and expense, who shall examine the books, records, inventories and reports of the ASSOCIATION and its officers and employees who receive, handle or disburse funds obtained by the ASSOCATION from CITY, pursuant hereto. A copy of such audit for the 2011 calendar year shall be submitted to the City Manager by March 30, 2013.
2.2.4 ANNUAL REPORT. The ASSOCIATION must submit to the CITY an Annual Report and proposed assessments each year by August 31. The Annual Report must include a budget for the calendar year purs~tant to Paragraph 2.2.1.
2.3 ASSOCIATION shall administer the entire work program in a prudent manner within the budget as set forth in Exhibit A. ASSOCIATION assumes all responsibility and liability for contracting for support services as may be required, and for the payment of all direct out-of· pocket expenses as may be necessary for the timely completion of services contemplated by this Agreement. Obligations, liabilities or expenditures for items not approved in the budget process as set forth herein shall not be paid with assessments collected by CITY for the Area.
2.4 ASSOCIATION shall act as liaison and maintain ongoing relationships with the community which shall include, but is not limited to; holding an annual public meeting which ASSOCIATION shall provide written notice to all assessed business establishments in the Area. The ASSOCIATION shall conduct said public meeting for the general membership by August 15, 2013 to report on ASSOCIATION current year budget activities and proposed budget including any assessment changes for the coming calendar year. This meeting will be conducted in the community in .9rder to allow the business establishments to familiarize themselves with ASSOCIATION functions and to inform ASSOCIATION of their concerns and desires. A representative of the
WUA Annual Agreement Page 4
CITY as designated by tile City Manager may attend tile meeting to provide information on behalf of tile CITY as required.
2.5 ASSOCIATION shall maintain tax exempt status with the United States Internal Revenue Service and the California State Board of Equalization for the term of this Agreement. ASSOCIATION shall provide documentation of such status to the CITY prior to the disbursement of any funds to ASSOCIATION pursuant to this Agreement.
2.6 ASSOCIATION, and any authorized subcontractors and consultants, if any, shall be required to obtain all necessary documentation, including, but not limited to, any and all certificates, licenses, and permits that may be required to do business in the CITY.
Section 3. CITY RESPONSIBILITIES
3.1 The CITY shall be responsible for mailing all billings, collecting the assessment and authorizing disbursement of funds collected by CITY to the ASSOCIATION.
3.2 The City Manager or his designee shall review ASSOCIATION quarterly reports.
3.3 The City Clerk/Treasurer shall disburse funds collected on a monthly basis by the twenty-fifth (251
h) of the following month. Any disbursements provided for in this Agreement shall not be made unless the ASSOCIATION is in complete compliance with all of the provisions of this Agreement.
3.4 Except as may be required by the Public Records Act, certain types of information obtained and possessed by the CITY, including but not limited to certain tax data, have been determined to be confidential information by tile City Attorney, and will not be made available to a requesting party or the ASSOCIATION.
Section 4. DISBURSEMENTS
4.1 Each month, CITY shall disburse to the ASSOCIATION, an amount equal to the total amount assessed or collected, if the actual amount collected is less than the amount assessed less any refunds and/or other adjustments. If the ASSOCIATION dissolves prior to or upon the expiration of this Agreement, any unexpended monies will be returned to the CITY as set forth herein in Section 14.
4.2 By the 301h day of the first month of each quarter, ASSOCIATION
shall submit in duplicate, a quarterly report to the City Manager which shall include the following:
u v ,,,n-l I"" '""'o,.tl f"\~1 ~VI I lVII~ ~age b
1. Supporting documentation of expenditures incurred in !he previous quarter and an itemized request for disbllrsement for the current quarter.
2. A statement by the ASSOCIATION certifying that ASSOCIATION staff lime expended, if any, and all requests for payment are for services periormed in accordance with the provisions of this Agreement.
Section 5. NOTICES
5 1 The City Manager or his designee shall be the representative of CITY for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the CITY, called for by this Agreement, except as otherwise expressly provided in this Agreement.
The President of the Board of Directors of the Association and/or Executive Director shall be the representative of the ASSOCIATION for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the ASSOCIATION, called for by this Agreement, except as otherwise expressly provided in this Agreement.
All notices and written communications sent by one party to the other shall be personally delivered or sent by registered or certified U.S. Mail, postage prepaid, return receipt requested to the following addresses indicated below:
CITY:
ASSOCIATION:
City of Whittier 13230 Penn Street Whittier, CA 90602 Attn: City Manager
Wtlittier Uptown Association 6717 Bright Avenue Whittier, CA 90601 Attn: Executive Director
The effective date of any notice or written communications sent by one party to the other shall be the date received if by personal service, or 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark.
Either party may change its address by giving notice in writing to the other party.
WUA Annual Agreement Page 6
Section 6. OWNERSHIP OF DOCUMENTS
6.1 The work product prepared or acquired by ASSOCIATION pursuant to this Agreement, including, but not limited to, any and all data, documents, memoranda, sketches, drawings, photographs, audio tapes, video tapes, computer disks, thumb/flash drives, designs, plans, reports, investigations, and materials, (collectively and individually, the "Work Product"), shall be and shall remain property of CITY and the Area for the exclusive use of the Area. ASSOCIATION shall have the right to retain copies of the Work Product. ASSOCIATION acknowledges that the Work Product shall be and shall remain confidential, except as provided herein, and shall not be made available to any individual or organization without the prior written consent of the CITY. The Work Product shall, upon demand of the CITY, be delivered to the CITY without additional cost or expense to the CITY.
Section 7. CONFLICT OF INTEREST
7.1 For the duration of this Agreement, ASSOCIATION specifically acknowledges that it is subject to the CITY's conflict of interest code and that it, or its employees, will· not act as consultant or petiorm services of any kind for any person or entity in regard to the Area without the prior written consent of the CITY. In addition, neither members of the Board of Directors of ASSOCIATION, nor paid staff, if any, may enter into any contract on behalf of ASSOCIATION, nor vote on any Area matters, when such contract or matter would be of financial benefit to the member or Director over and above the general financial benefit to all businesses in the Area.
Section 8. COST RECORDS
8.1 ASSOCIATION shall maintain full and complete records regarding the services perlormed pursuant to this Agreement in accordance with generally accepted accounting principles. Such records shall be open to the inspection of the CITY upon rea~>onable request.
8.2 The records maintained by the ASSOCIATION shall include, but are not limited to, all receipts for expenditures and expenses incurred. The City Manager reserves the right to request a contract compliance audit at anytime during the term of the Agreement. ASSOCIATION agrees to keep all receipts and other supporting documents available for inspection during said audits and for a period of three years after termination or expiration of this Agreement.
VVW\ Annualt"<greement Page 7
Section 9. EQUAL OPPORTUNITY PROGRAM
9.1 The ASSOCIATION shall comply with the applicable nondiscrimination and affirmative action provisions of the laws of the United States of America, the State of California, and the CITY. In performing this agreement, ASSOCIATION shall not discriminate in its employment practices against any employee or applicant for employment because · of such person's race, religion, national origin, ancestry, sex, sexual orientation, age, physical l1andicap, marital status or medical conditions.
Section 10. AMENDMENTS
10.1 CITY may periodically request changes in the scope of services to be performed by ASSOCIATION. Such changes, if any, which are mutually agreed upon by and between the CITY and ASSOCIATION, shall be incorporated by written amendment to this Agreement.
1 0.2 This Agreement may not be amended except in writing by mutual agreement of both parties. A failure to object to a breach of this Agreement shall not constitute an amendment thereof, nor shall it waive any future breach of the Agreement.
Section 11. INSURANCE
1 U Without limiting its obligations pursuant to Section 12 of this Agreement, ASSOCIATION shall submit proof of Comprehensive General Liability Insurance of minimum One Million Dollars ($1 ,000,000) single limit coverage, or statutorily required amounts, whichever is greater. Proof of insurance stlall consist of a Certificate of Insurance in amounts satisfactory to, and in a form approved by City Attorney.
Furiher, ASSOCIATION shall obtain any additional kinds and amounts of insurance which, in its own judgment, may be necessary for the proper protection of any of its officers', employees', agents, or authorized subcontractors' own actions during the performance of this Agreement. Said policy or policies sl1all be in a form to be reasonably approved by the CITY and shall name the CITY, the City Cowwil, its officers, agents and employees as additional insured by an endorsement to the policy. Said endorsement shall provide that the CITY shall receive not less than thirty (30) days prior written notice of cancellation of any policies of insurance required hereunder.
Section 12. INDEMNITY
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12.1 The ASSOCIATION shall defend, indernnify, hold free and harmless the CITY, its elected officials, its officers and employees, from and against any and all damages to property or injuries to or death of any person or persons, including attorney fees, and shall defend, indemnify, save and hold harmless CITY, its elected officials, its officers and employees from any and all claims, demands, suits, actions or proceedings of any kind or nature, including, but not by way of limitation, all civil claims, workers' compensation claims, and all other claims resulting from or arising out of the acts, errors or omissions of ASSOCIATION, its employees and/or authorized subcontractors, whether intentional or negligent, in the pertormance of this Agreement.
The CITY does not waive any rights against ASSOCIATION which it may have by reason of the above hold harmless clause due to the acceptance by the CITY of insurance policies described herein.
Section 13. ASSIGNMENT
13.1 This Agreement may not be sold, transferred or assigned by the ASSOCIATION, or by operation of law, to any other person or persons or business entity, without the CITY's written consent, which consent shall be at the sole and absolute discretion of CITY. Any such sale, transfer or assignment, or attempted sale, transfer or assignment without written permission, may be deemed by the other party to constitute a voluntary termination of this Agreement and this Agreement shall thereafter be deemed terminated and void.
Section 14. AREA ASSETS
14.1 In the event the Area is dissolved or otherwise discontinued, the existing assets of the Area shall revert to and become the sole property of CITY. However, said assets shall only be used: 1) to pay the CITY any outstanding sums due to it by the Area, and 2) to disburse the remaining assets after payment to CITY to the then current members of the Area on a pro-rata basis.
Section 15. ATTORNEY FEES
15.1 If any action is brought in law or equity to enforce or interpret the provisions of the Agreement, the prevailing party shall be entitled to reasonable attorney fees in addition to any other relief to which it may be entitled.
Section 16. SEVERABILITY
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16.1 If any clause, provision, or section of the Agreement shall be ruled invalid by any court of competent jurisdiction, the invalidity of such clause, provision, or section shall not affect any of the remaining provisions hereof.
Section 17. WAIVER
17.1 Waiver by the CITY of any breach of any term, covenant or condition herein contained shall not be deemed a continuing waiver of such term, covenant or condition or any subsequent breach of the same or any· other term, covenant or condition herein contained.
Section 18. SECTION HEADINGS
18.1 The section headings of the Agreement are for convenience and reference only, and shall in no way be deemed to define, limit, or add to the meaning of any provision ofthe Agreement.
Section HJ. GOVERNING LAW/COMPLIANCE WITH LAWS
19.1 The Agreement shall be governed by, and construed in accordance independent with, the laws of the State of California. The parties hereto agree to be bound by all federal, state and local laws, ordinances, regulations and directives pertaining to the services to be performed hereunder. All disputes arising hereunder shall be subject to the jurisdiction of the County of Los Angeles, California.
Section 20. DATE FOR REFERENCE PURPOSES
20.1 The Effective Date of the Agreement shall be the date on which it is executed by the CITY. The date of the Agreement is for reference purposes only.
Section 21. COUNTERPARTS
21.1 The Agreement may be executed in several counterparts, eacll of which shall be an original and all of which shall constitute but one and the same instrument.
Section 22. EXTENT OF AGREEMENT
22. i The Agreement represents the entire and integrated agreement between the CITY and ASSOCIATION and supercedes any and all pnor negotiations, representations, or agreements, either oral or written.
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Section 23. CORPORATE AUTHORITY
23.1 The persons executing this Agreement on behalf of the Parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that by doing so, the Parties hereto are formally bound to the provisions of this Agreement.
IN WITNESS WHEREOF, this Agreement is executed by THE CITY OF WHITTIER, acting by and . through its Mayor, and the WHITTIER UPTOWN ASSOCIATION, acting by and through its President.
DATED: __,_r<..:...v_·-·_N_:··-_1 -=-l·_
DATED: __________ __
CITY OF WHITTIER
/ // I (f
! 7
Y W. COLLIER, City Manager
WHJJ"TiER UPTOWN ASSOCIATION
BY:. AL AN NAKKEN, Executive Director
RICHARD D. J~ES, City~torney . ~··· ,.
ATTEST:
BY: JC}vvt' KATHRYN A. MAR
WUA Annual Agreement Page i i
..
EXHIBIT A
' ..
REVENUES
EXPENSES
Assessments Events Other
Audit Accounting 13ank Charges Electrical Panels Equipment Maintenace Equipment Rental (copier) Insurance Office Supplies Utilities Payroll Payroll Taxes Postage Printing Office Rent Storage Telephone /Internet Taxes I Licenses I Permits Legal Fees Events Projected Expenses Street Cleaning Public Relations I Marketing
Total Budget 2013
Operation Revenue w/out Sponsorships
Sponsorship Income
Net Profit Loss After Sponsorships
115,000 111,040
226,040
2,000 3,600
200 1,000 2,000 4,000 3,000 1,500
200 125,000
15,000 1,250 1,500 9,000 1,500 2,500 4,500 4,000
74,720 12,000 17,635
286,105
37,440
73,600
13,535
101112012 ••
Exhibit D
LAW OFFICES OF I<ELLY AVILES
City Council Mayor Bob Henderson
bob@hendersoninsure. com Mayor pro tern Cathy Warner
r:atf?ywarner@earthlink. net Councilman Fernando Dutra
jdutrawcc@gmail. com Councilman Joe Vinatieri
[email protected]'Om Councilman Owen Newcomer
newcomer _ciryhall@charter. net City of Whittier 6136 Adobe Road Twentynine Palms, CA 92277
October 11, 2013
Board of Directors Art Garcia
info@crystalmarquis. com Elizabeth Apodaca, Esq.
lii!§)myattornryla. com Hector Alvarado
hector@cballiance. net Rick Gonzales
rkk.gonzales@wuhsd ot;g Ernest Gonzalez
gsryclery@yahoo. com Marilin Brinegar
[email protected]'Om John Parker
john@whittieruptown. ot;g Michelle Morales
michelle.morales@gmail. com Stuie Eisen
stuiesbagels@?;erizon. net Whittier Uptown Association 6717 Bright Ave. Whittier, CA 90601
NOTICE OF BROWN ACT VIOLATION
D EMAND TO CEASE AND DESIST pursuant to Gov. Code section 54960.2
Dear Whittier City Council and Whittier Uptown Association Board of Directors:
This office represents Citizens for Transparency in Uptown, a group of concerned citizens and business owners who are troubled about the lack of transparency related to the Whittier Uptown Association ("Association"). Please direct all further communications regarding this matter to our office.
BACKGROUND
On November 26, 1969, pursuant to Ordinance No. 1878, the City created a Business Improvement Area known as the "Uptown Whittier Business Improvement Area." 1 The Business Improvement
1 The City has since passed numerous other ordinances which amended certain aspects of the Uptown Whittier Business Improvement Area, including but not limited to: Ordinance No. 2300 on May 24, 1983, Ordinance No. 2604 on July 1993, Ordinance No. 2636 on November 1, 1994, Ordinance o. 2831 on November 25, 2002, and Ordinance No. 2851 on November 23, 2004, and Ordinance No. 2904 on November 20. 2007. All references to the Ordinance throughout this correspondence collectively refer to the original ordinance and all amendments.
· 1502 Foothill Boulevard, Suite 103-140. La Verne, California 91750 Phone: (909) 991-7560. Fax: (909) 991-7594. Email: [email protected]
Law Offices of Kelly A. Aviles Whittier City Council
October 11, 2013 Page 2
Area was originally formed pursuant to Streets and Highways Code 36000 et seq., and currently exists pursuant to Streets and Highways Code 36500 et seq. Pursuant to the Ordinance and enabling laws, a business license tax (the “Assessment”) is imposed on businesses within Uptown Whittier area. Pursuant to an agreement between the City and the Association, the City forwards the revenue collected from the Assessment to the Association. The Whittier Uptown Association is a non-profit 501(c)(6) corporation, and operates for the stated mission of promoting “the progress and welfare of the Uptown Business Community.” Its membership includes all business located within the Uptown Whittier Business Improvement Area for which an annual business license tax is levied pursuant to Whittier Municipal Ordinance No. 2604. Street and Highways Code, section 36530 requires that the city council appoint an advisory board to make recommendations to the city council regarding the expenditure of revenues derived from the Assessments collected from the Business Improvement Area.2 To carry out this mandate, in each agreement that the City has entered into with the Association, including the most recent executed December 14, 2012, the City includes a provision which states:
…as required by the California Streets and Highways Code, Section 36530, the City Council hereby appoints the Board of Director's of said ASSOCIATION as the advisory board which shall make recommendations to the City Council regarding the expenditure of revenues derived from said Assessment….
The Ralph M. Brown Act, Government Code section 54950, et seq. requires that meetings of local legislative bodies be conducted openly. The Legislature's intent in enacting the Brown Act was explicitly set forth in Government Code, section 54950:
It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
Legislative bodies which are subject to the act include not only the governing body of a local agency, but any “commission, committee, board, or other body of a local agency, whether permanent or temporary, decision making or advisory, created by charter, ordinance, resolution, or formal action of a
2 Streets and Highways Code § 36530, states: “The city council shall appoint an advisory board which shall make a recommendation to the city council on the expenditure of revenues derived from the levy of assessments pursuant to this part, on the classification of businesses, as applicable, and on the method and basis of levying the assessments. The city council may designate existing advisory boards or commissions to serve as the advisory board for the area or may create a new advisory board for that purpose. The city council may limit membership of the advisory board to persons paying the assessments under this part. The city council may appoint the advisory board prior to adoption of the resolution of intention to create the area, so that the advisory board may recommend the provisions of the resolution of intention.”
Law Offices of Kelly A. Aviles Whittier City Council
October 11, 2013 Page 3
legislative body.” (Gov. Code, § 54952(b).) Additionally, the Act also governs any “board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that … is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity.” (Gov. Code, § 54952(c)(1).) Pursuant to these two sections, the Association is subject to the Brown Act and must comply with all of the open meeting requirements set forth therein. Unfortunately, the Association has never complied with the Brown Act. Also, when the Whittier City Attorney was asked about the Association’s lack of compliance, the City Attorney advised that the Association was not subject to the Brown Act. Additionally, the Board of the Uptown Association has created another body, the Friends of Uptown, which does not comply with the Brown Act. Once an agency subject to the Brown Act creates another body, that body is also subject to the Brown Act’s requirements. The Association cannot simply shield itself from compliance with the Brown Act by using another corporation to do its business. Therefore, Citizens for Transparency in Uptown submits this demand for an unconditional commitment to cease and desist pursuant to Government Code, section 54960.2.
CURE AND CORRECT DEMAND
Pursuant to Government Code section 54960.1, you have 30 days from the receipt of this demand to either cure and correct the challenged actions, as set forth above, or inform the undersigned of your decision not to do so. If you fail or refuse to cure or correct as demanded, my clients may seek judicial invalidation of the challenged actions pursuant to section 54960.1, in which case, they will also seek an award of court costs and reasonable attorney fees pursuant to Government Code section 54960.5.
CEASE AND DESIST DEMAND
The Brown Act, section 54960 allows any interested person to “commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations,” “to determine the applicability of this chapter to ongoing actions or threatened future actions of the legislative body, or to determine the applicability of this chapter to past actions of the legislative body.”
Therefore, my client demands that the City and the Association acknowledge that the Whittier Uptown Association and Friends of Uptown are both subject to the Brown Act, and make an “unconditional commitment” that both will comply with all aspects of the Brown Act in the future.
Pursuant to Government Code section 54960.2, you have 30 days from the receipt of this cease and desist demand to provide my clients with an “unconditional commitment” that you comply as set forth
Law Offices of Kelly A. Aviles Whittier City Council
October 11, 2013 Page 4
above. The unconditional commitment must be approved by the Council in open session at a regular or special meeting as a separate item of business, and not on its consent agenda. If you fail or refuse to cease and desist as demanded, such action will lead my client to file an action pursuant to Government Code section 54960, in which case, it will seek an award of court costs and reasonable attorney fees pursuant to Government Code section 54960.5.
ADDITIONAL RELATED CONCERNS
Suspension: It appears from records obtained from the Secretary of State, that the Association’s corporate status was suspended from 2006 to 2010. However, during this time, the Association received more than $300,000 in Assessments from the City. This is in direct contradiction to the City’s Agreement with the Association, which requires that the Association provide verification of its corporate non-profit status prior to distribution of funds by the City to the Association. Unless documents were fraudulently manufactured to conceal this fact, it seems that the City has been negligent in their duty to inspect the required documentation prior to the disbursement of funds to the Association, and has distributed funds in direct contradiction to this mandate. Conflict of Interest: It appears that one of the members of the board of the Association, Elizabeth Apodaca, has also acted as the Association’s attorney, and received payment for such work. This seems to be clearly prohibited by both the Agreement between the City and the Association, and possibly by applicable conflict of interest laws. Public Records Act: As the Board of both the Uptown Association and Friends of Uptown are subject to the Brown Act, their records are also subject to the California Public Records Act. Therefore, the City and Uptown are required to produce all documents that meet the definition of “public records”, and which are not subject to exemption, upon a request by any citizen.
PUBLIC RECORDS REQUEST
On behalf of my client, pursuant to Government Code 6250, et seq., commonly referred to as the California Public Records Act, please provide my office with copies of the following documents, related to the Whittier Uptown Association:
1. All internal communications, including correspondence, emails, or memoranda, between the City, its officials, employees, or agents, regarding Whittier Uptown Association from 2006 to the present.
2. All external communications between the City and any third party regarding Whittier Uptown Association from 2006 to the present.
3. All yearly independent audits of the Whittier Uptown Association from 2006 to the present.
4. All documents submitted by the Whittier Uptown Association to the City from 2006 to the present, not including the annual budget or the quarterly reports.
Law Offices of Kelly A. Aviles Whittier City Council October 11, 2013 Page 5
CONCLUSION
All of these issues either stem from or aided by a lack of transparency. As is often said, sunshine is the best disinfectant. It is my client's sincere hope that litigation will not be necessary to force the City and both the Whittier Uptown Association and the Friends of Uptown to comply with our state's very important transparency laws.
For the Firm,
Kelly Aviles
cc: Jeff Collier, City Manager, via email only to jcollier@ciryofwhittier. O'fX
Richard Jones, Jones & Mayer, City Attorney, via email only to [email protected]
Eileen Alvarez, Whittier Uptown Association, via email only to Ei/[email protected]
Marie, Whittier Uptown Association, via email only to [email protected]
Exhibit E
--------~~~--------JONES & MAYER
ATTORNEYS AT LAW
3777 NORTH HARBOR BOULEVARD • FULLERTON, CALIFORNIA 92835 (714) 446-1400 • (562) 697-1751 • FAX (714) 446-1448
Richard D. Jones* Partners Martin J. Mayer Kimberly Hall Barlow James R. Touchstone
*a Professional Law Corporation
OfGmmsel Michael R. Capizzi Dean J. Pucci Steven N. Skolnik
Richard L. Adams ll Jamaar Boyd-Weatherby Baron J. Bettenhausen Christian L. Bettenhausen Paul R. Coble Keith F. Collins
Michael Q. Do Thomas P. Duarte Elena Q. Gerli Katherine M. Hardy Krista MacNevin Jee Ryan R. Jones
November 7, 2013
Via Facsimile No. 909- 392-0055 and U.S. Mail
Kelly A. Aviles Law Offices of Kelly A. Aviles 1502 Foothill Boulevard, Suite 103-140 La Verne, California 91750
Robert Khuu Gary S. Kranker Christopher F. Neumeyer Kathya M. Oliva Gregory P. Palmer
Re: Whittier Uptown Association and the Friends of Whittier
Dear Ms. Aviles,
Danny L. Peel man Harold W. Potter Denise L. Rocawich Yolanda M. Summerhill lvyM. Tsai
Consultant Mervin D. Feinstein
Our office serves as legal counsel for the City of Whittier in the above-mentioned matter. In your October 11, 2013 letter ("Letter"), you allege that the City Council formally created the Whittier Uptown Association ("Association"), and, by that act, meetings of the Association are subject to the requirements of the Brown Act. You also make the additional allegation that the meetings of the Friends of Uptown are also subject to the Brown Act, because the Association created the Friends of Uptown. You then make the following general allegations: 1) The City was negligent in administering its professional services agreement with the Association because the Association's nonprofit corporate status was suspended from 2006 to 2010; and 2) Elizabeth Apodaca, a member of the Association's board, cannot serve as legal counsel for the Association because she has a conflict. Finally, you conclude your letter by making a request for public records under the California Public Records Act. This letter serves solely to respond to your allegations and does not serve as an acknowledgment by the City relating to the sufficiency of your demand under Government Code section 54960.1.
2 November 7, 2013 Kelly A. Aviles
1. Deficient Demand under Government Code section 54960.1
The Letter's demand to cure and correct pursuant to Government Code section 54960.1 is deficient. 1 In order to make a sufficient demand under Section 54960.1, the demand must allege a specific action taken by the City Council.2 Additionally, Section 54952.6 defines "Action taken" as a "collective decision made by a majority of the members of a legislative body, collective commitment or promise by a majority of the members of a legislative body to make a positive or negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance." In this case, the Letter does not allege any specific action taken, as defined, by the City Council, or Association and Friends of Uptown, which was taken in violation of the Brown Act. It only makes the general allegation that the Brown Act is not being generally complied with by the Association, Friends of Uptown, and the City Council. Thus, the Letter fails to make any allegations that a specific action taken by the City Council, the Association, or the Friends of Uptown was in violation of the Brown Act. As a result, the Letter makes a deficient demand to cure and correct pursuant to Section 54960.1.
2. Brown Act Compliance.
The Letter alleges that the Association and the Friends of Uptown are subject to the Brown Act, because they are both, 1) a legislative body created by formal action of the City Council (per Section 54952(b)) and, 2) the Association is a private nonprofit which was created by the City Council in order to exercise authority that was delegated to it by the City Council (per Section 54952(c)(1)). Additionally, you allege that the Friends of Uptown, as a body created by the Association, is also subject to the Brown Act, because the Association itself is subject to the Brown Act.
a. The Association and Section 54952(b ).
Generally, Section 54952(b) states that subservient bodies created by the City Council created by charter, ordinance, resolution, or formal action of the City Council are governed by the Brown Act. In the case of the Association, it was incorporated in or about July 13, 1954 as a nonprofit entity. A search of City records has been unable to locate any records indicating the Association was created by any action of the City Council. Moreover, the Association's records do not indicate that the City Council took any formal action to order the creation of the Association. In fact, the records provided by the Association indicate that it was related to and/or created by action of the Whittier Chamber of Commerce on or about July 13, 1954. This date predates the creation of the Whittier Uptown Business Improvement Area (i.e., the Whittier Uptown Business Improvement Area was created on or about May 24, 1983). Therefore, when the Association's Board of Directors meets solely in its capacity as the Association on matters solely pertinent to
1 Unless otherwise specified, all code references shall be to the California Government Code. 2 By way of example, § 54960.l(c)(l) states that "the written demand shall be made within 90 days from the date the action was taken unless the action was taken in an open session but in violation of Section 54954.2, in which case the written demand shall be made within 30 days from the date the action was taken."
3 November 7, 2013 Kelly A. Aviles
the Association, the Association is not a Brown Act body under Section 54952(b ), because it is not a City-created body.
b. The Association and Section 54952(c).
The Brown Act also provides that private corporations, limited liability companies, and other entities which are created by the City Council for the purpose of exercising authority which is lawfully delegated to them by the City Council, are covered entities under the Brown Act. 3 In the case of the Association, it was incorporated on or about July 13, 1954 as a nonprofit entity. As noted above, neither the City's or Association's records show that it was created by the City Council. On other hand, a private nonprofit is subject to the Brown Act if it receives funding from the City and has a Council member on its governing board.4 In this case, the Association only receives funding from the City in connection with providing services through a professional services agreement with the City, but no City Council members sit on its governing body as a voting member. Thus, Section 54952(c)(2) is not applicable to the Association's Board of Directors when it is meeting in its capacity as the Association on matters solely pertinent to the Association.
c. The Advisory Board.
The Association was also appointed as the Advisory Board for the Whittier Uptown Business Improvement Area. To the extent that the Association's Board of Directors meets in its capacity as the Council-created and appointed Advisory Board, as described under California Streets & Highways Code section 36530, those meetings of the Advisory Board are subject to Brown Act requirements. This would include any discussion of matters within the Advisory Board's jurisdiction.5 The Advisory Board was created by the City Council pursuant to California Streets & Highways Code section 36530 and its members were appointed pursuant to the same code section. Thus, Section 54952(b) applies to the Association's Board of Directors when it is meeting as the City Council created and appointed Advisory Board on matters pertinent to the Advisory Board. To the extent that the Association has met as the Advisory Board, the Association has complied with Brown Act requirements in cooperation with City staff.
d. Friends ofUptown
The Friends of Uptown was created as a 501(c)(3) nonprofit by the Association; therefore, the Letter alleges that the meetings of the Board of Directors for the Friends of Uptown must comply with the Brown Act. In the past, three out of the nine directors of the Friends of Uptown were also
3 Cal. Gov. Code § 54952(c)(l)(A); Epstein v. Hollywood Entertainment District II Business Improvement District, 85 Cal. App. 4111 152 (2000). 4 Cal. Gov. Code§ 54952(c)(l)(B). 5 The purpose of the Advisory Board is to make recommendations to the City Council on the expenditure of revenues derived from the Uptown Business Improvement Area Assessment, the classification of businesses subject thereof, and on the method and basis of levying the assessments. Cal. Streets & Highways Code§ 36530.
4 November 7, 2013 Kelly A. Aviles
members of the Association's Board of Directors. Now, only two of those nine directors are members ofthe Friends of Uptown's Board of Directors. According to the Association's website, it has nine board of directors (four of which are pmi of the Executive Board, four of which are part of the Board of Directors, and one member is an ex officio member). Outside of the initial incorporation filing, our office has been informed that funding for the Friends of Uptown comes solely from community donations. As discussed above, because the Association is not a Brown Act body, the Friends of Uptown is not required to comply with the Brown Act for its meetings. Nevertheless, assuming that the Brown Act applies to the Association, it still would not apply to the Friends of Uptown because, while some of its directors are members of the Association's directors, the Friends of Uptown is not funded by the Association or the City.
3. General Allegations
a. The Association's Nonprofit Status
Your letter further alleges that the Association had a lapse in its corporate status between 2006 and 2010, and that this is potentially a violation of the Professional Services Agreement between the City and the Association. While this concerns an action in the past, the Association has informed the City that the lapse in corporate status during that time period did not run for the entire period nor was it related to any tax or financial related reasons (i.e., the Association apparently did not file its paperwork on time). Nevertheless, the Association has represented that it still maintains its nonprofit corporate status. The City Council has no obligation to take any action to address this issue which has been corrected.
b. Conflicts for Elizabeth Apodaca
Your letter alleges that there might be a conflict of interest for one of the Association's board members. One of the board members has acted as the Association's attorney, and received payment for such work, and the Letter states that this is the basis of a conflict. Section 7.1 of the current professional services agreement with the Association indicates that the Association has specifically subjected itself to the City's conflict of interest laws, and that it and its employees agree to not perform services of any kind for any person or entity in regard to the Whittier Uptown Business Improvement Area. Additionally, Section 7.1 prohibits any member of the Association's Board of Directors from entering into a contract on behalf of the Association if the contract or matter would be to the financial benefit to the particular member which would be over and above the general financial benefit to all business in the Whittier Uptown Business Improvement Area.
There is no conflict due to a board member providing legal services to the Association. The relevant board member, Ms. Elizabeth Apodaca, has provided legal services to the Association's Board of Directors in its capacity as the Board of Directors for the Association (as opposed to the Advisory Body), and, based upon information provided by the Association, Ms. Apodaca abstained from the vote upon her contract with the Association for legal services. The activities prohibited involve the Association providing services to a person or entity with regard to the Whittier Uptown Business Improvement Area. In this case, Ms. Apodaca has provided services to
5 November 7, 2013 Kelly A. Aviles
the Association itself and not another party. Additionally, because the Association's Board of Directors, when not acting as the Advisory Board, is not a body of the City, as discussed above, then the Political Reform Act and Section 1090 do not apply. Otherwise, any other potential conflicts would be completely internal to the Association. Our office has been informed that the Association has taken steps to avoid those internal conflicts of interests including those discussed above. Insofar as the Advisory Board is concerned, Ms. Apodaca does not operate as legal counsel for the Advisory Board. Because the Advisory Board is a City-body, the Office of the Whittier City Attorney serves as its legal counsel.
c. Public Records Act Request
Your public records request is being processed by the City Clerk's office in the normal and ordinary course ofbusiness.
4. Conclusion.
For the forgoing reasons, the Association and the Friends of Uptown are not subject to the Brown Act open meeting requirements. Additionally, your demand for cure and correction pursuant to Section 54960.1 has not been made against a specific action taken by the City Council, the Association, or the Friends of Uptown, and is an insufficient demand. As stated above, this letter serves solely to respond to your allegations made in your Letter and does not constitute an acknowledgment on the City's part of your insufficient demand.
Should you have any questions regarding this letter, please contact the undersigned.
RLA/dm
~~ Richard L. Adams, II Assistant City Attorney City of Whittier
cc: Jeff Collier, City Manager, City of Whittier Kathryn Marshall, City Clerk-Treasurer, City of Whittier Elizabeth Apodaca, Acting Executive Director, Whittier Uptown Association
Exhibit F
Executive Board
Rick Gonzales President
-Spin Lounge-
John Parker Vice-President
-Parker Remodeling & Construction-
Marilin Brinegar Secretary
-Pour Le Bain-
Art Garcia Treasurer
-Crystal Marquis-
Directors At-Large
Stuie Eisen -Stuie' s Bagel' s-
Ernest Gonzalez -G' s Cyclery-
Chuck Marsden -Marsden Shoes-
Michelle Morales -Marinello's School of Beauty-
Gary Couso-Vasquez -Vernon Security, Inc-
Ex-Officio ,~-,
Hector Alvarado -Coldwell Banker Alliance-
Whittier Uptown Office
Eileen Alvarez Office Manager ::-:.;;
Interim Staff
Liz Apodaca My Attorney
--
Via e-mail kaviles@opengov law. com And U.S. mail
Kelly Aviles Law Offices of Kelly Aviles 1502 Foothill Blvd. Suite 103-140 La Verne, CA 91750
November 13, 2013
Re: Your Letter Dated October 11, 2013
Dear Ms. Aviles:
The Board of Directors of the Whittier Uptown Association (the "Board") is in agreement with the legal analysis contained in the letter to you dated November 7, 2013from Jones & Mayer, legal counsel for the City of Whittier, a copy of which is attached for your reference. In response to the "Notice of Brown Act Violation" dated October 11,2013, the attached letter from Jones & Mayer serves as a response on behalfofthe Uptown Association in its capacity as an advisory board to the Whittier City Counsel. In its nonadvisory board capacity, the Uptown Association responds that it is not subject to the requirements of the Brown Act for the reasons stated in the Jones & Mayer letter, and it will continue to conduct its operations as independent 501(c)6 corporation.
President, Whittier Uptown Assoc.hti Board of Directors
cc: Jeff Collier, City of Whittier
.ft . ~~ - : .
6717 Bright Avenue Whittier CA 90601 Tel. (562) 696-2662 I Fax (562) 696-3763 + email: [email protected] + website: WhittierUptown.org