SECTION 4. The fees shown in Exhibit “A” are hereby adopted and each fee or service charge set forth in this Resolution shall be charged until further resolution of the City Council.
SECTION 5. the fees shown in Exhibit “A” shall become effective on November 1, 2023.
SECTION 6. That the City Clerk shall certify to the passage and adoption this resolution and enter it into the book of original resolutions.
BE IT FURTHER RESOLVED that the City Manager is authorized to undertake such further actions, such as minor amendments to the Program, as may be necessary and desirable to carry out the intent of this Resolution.
PASSED, APPROVED AND ADOPTED this 25th day of October, 2023.
Gabriel Reyes, Mayor
Brenda Lopez, City Clerk
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Resolution No. 23-79
I, Brenda Lopez, City Clerk of the City of Adelanto, California, do hereby certify that the foregoing Resolution No. 23-79 was duly and regularly adopted at a regular meeting of the City Council of the City of Adelanto on this 25th day of October, 2023 be the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS THEREOF, I hereunto set my hand and affix the official seal of the City of Adelanto on the 25th day of October, 2023.
Brenda Lopez, City Clerk
649
Resolution No. 23-73
EXHIBIT A TO RESOLUTION NO. 23-73
Master Fee Schedule
650
CITY COUNCIL AGENDA REPORT
A D E L A N T O G O V E R N M E N T A L C E N T E R | 1 1 6 0 0 A I R E X P R E S S W A Y | A D E L A N T O , C A L I F O R N I A 9 2 3 0 1
DATE: October 25, 2023
TO: Honorable Mayor and City Council Members
FROM: Jessie Flores, City Manager
BY: Angel Castellanos, Director of Finance
SUBJECT: AWARD A CONSTRUCTION CONTRACT FOR ADELANTO SIGN REHABILITATION TO
SAFEWAY SIGNS
STAFF RECOMMENDATION:
Staff recommends City Council approve an award of construction contract agreement with Safeway Signs. in the amount of $32,060.00, to provide construction and rehabilitation of the City of Adelanto Welcome Sign and authorize the City Manager to execute the agreement.
BACKGROUND:
The City of Adelanto Welcome Sign has not been renovated in decades and is in desperate need of updating and repairs. The Adelanto Welcome Sign provides a view into the City of Adelanto and serves as an invitation to the beautiful communities within our city. Due to time and weather, it requires a significant update to provide all travelers along the 395 corridor that you are passing through the beautiful City of Adelanto.
The City issued a request for proposal (RFP) that closed on September 7, 2023, and received a total of two (2) bids.
Only one proposal was submitted in accordance with the RFP requirements.
Bids were reviewed to determine if all were responsive to submittal requirements. Staff recommends award of contract to the only responsive bidder, Safeway Signs for $32,060.00 to rehabilitate the Adelanto City Welcome Sign.
FISCAL IMPACT:
This amount for the rehabilitation is included in the General Fund budget for Fiscal Year 2023-24.
ATTACHMENTS:
A. Bid Proposal
B. Bid Submittal
C. Contractor Service Agreement
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CITY OF ADELANTO
CONTRACT SERVICES AGREEMENT
«Contract_Title»
THIS CONTRACT SERVICES AGREEMENT (“Agreement”) is made and effective this _________ day of ___________, 2023 by and between the CITY OF ADELANTO, a California municipal corporation, (“City”) and «Contractor», a «Entity_Type» (“Contractor”). City and Contractor are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties”.
City sought, by issuance of a Request for Proposals or Invitation for Bids, for the performance of the services defined and described particularly in this Agreement. Contractor, following submission of a proposal or bid for the performance of the services defined and described particularly in this Agreement, was selected by City to perform those services. The Parties desire to formalize the selection of Contractor for performance of those services defined and described particularly in this Agreement and desire that the terms of that performance be as particularly defined and described herein.
SECTION 1. SERVICES.
1.1 Scope of Services. Subject to the terms and conditions set forth in this Agreement, Contractor shall provide to City the services described in the Scope of Services, attached hereto as Exhibit A, “Scope of Services” and incorporated herein by this reference (the “Services”).
Contractor will perform subsequent task orders as requested by the Contract Administrator (as defined below), in accordance with the Scope of Services. The Scope of Services incorporates Contractor’s scope of work or bid for the Services. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, this Agreement shall prevail.
1.2 Term of Services. The term of this Agreement shall begin on «Term_of_Contract_Beginning». Unless earlier terminated in accordance with Section 8 of this Agreement, this Agreement shall continue in full force and effect until final written approval and acceptance of the work performed under this Agreement by the Contract Administrator. The time provided to Contractor to complete the Services required by this Agreement shall not affect City’s right to terminate this Agreement, as provided for in Section 8.
1.3 Standard of Performance.
a. Quality of Work. As a material inducement to City entering into this Agreement, Contractor represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the Services contemplated herein. Contractor shall at all times faithfully, competently, and to the best of its ability, experience, and talent, perform all Services described herein. Contractor covenants that it shall follow the highest professional standards in performing the Services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards of practice recognized by 652
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one or more first-class firms performing similar work under similar circumstances, and to the sole satisfaction of the Contract Administrator.
b. Care of Work. Contractor shall adopt reasonable methods during the term of this Agreement to furnish continuous protection to the Services, and the equipment, materials, papers, documents, plans, studies, and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Services by City, except such losses or damages as may be caused by City’s own negligence. c. Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out the Services, Contractor shall at all times be in compliance with all applicable local, state, and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. d. Warranty. Contractor warrants all work under this Agreement (which for purposes of this Subsection 1.3 shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one (1) year (or the period of time specified elsewhere in this Agreement or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by City of any defect in the work or non-conformance of the work to this Agreement, commence and prosecute with due diligence all work necessary to fulfill the terms of the warranty at Contractor’s sole cost and expense. Contractor shall act sooner as requested by City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by Contractor’s defective work or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one (1) year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of this Agreement. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of Contractor. All warranties and guarantees of subcontractors, suppliers, and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of City, regardless of whether or not such warranties and guarantees have been transferred or assigned to City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Agreement, to 653
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the reasonable satisfaction of City, City shall have the right to correct and replace any defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense. Contractor shall be obligated to fully reimburse City for any expenses incurred hereunder upon demand.
e. Skilled and Trained Workforce. Contractor, for itself and its subcontractors at every tier, hereby provides an enforceable commitment to comply with California Public Contract Code section 2600 et seq., which requires use of a skilled and trained workforce to perform all work on the agreements that fall within an apprenticeable occupation in the building and construction trades.
f. Inspection and Final Acceptance. The Services shall be performed to the satisfaction of City. City may inspect and accept or reject any of Contractor’s work under this Agreement, during performance and/or when completed. City shall reject or finally accept Contractor’s work within forty five (45) days after submitted to City. City shall accept work by a timely written acceptance, otherwise work shall be deemed to have been rejected. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud, and such gross mistakes as amount to fraud. Acceptance of any work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 4 and Section 5, pertaining to insurance and indemnification, respectively.
1.4 Assignment of Personnel. Contractor shall assign only competent personnel to perform the Services. Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor’s staff and subcontractors, if any, assigned to perform the Services.
Contractor shall notify City of any changes in Contractor’s staff and subcontractors, if any, assigned to perform the Services, prior to and during any such performance. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Contractor shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.
1.5 Time. Time is of the essence in the performance of this Agreement. Contractor shall devote such time to the performance of the Services pursuant to this Agreement as may be reasonably necessary to satisfy Contractor’s obligations hereunder. Contractor shall commence the Services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all Services within the time period(s) established in the Scope of Services. When requested by Contractor, extensions to the time period(s) specified in the Scope of Services may be approved in writing by the Contract Administrator but not shall not exceed one hundred eighty (180) days cumulatively.
1.6 Force Majeure. The time period(s) specified in the Scope of Services for performance of the Services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, if Contractor shall within ten (10) days of the commencement of such delay notify the Contract Administrator in writing of the causes of the delay. The Contract Administrator shall ascertain the facts and the 654
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extent of delay, and extend the time for performing the Services for the period of the enforced delay when and if in the sole judgment of the Contract Administrator such delay is justified. The Contract Administrator’s determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Contractor be entitled to recover damages against City for any delay in the performance of this Agreement, however caused, Contractor’s sole remedy being extension of this Agreement pursuant to this Section.
1.7 Suspension of Services. The City Engineer of City (“Engineer”) shall have the authority to suspend the Services, wholly or in part, for such period as the Engineer may deem necessary, due to unsuitable weather or to such other conditions as are considered unfavorable for the suitable prosecution of the Services, or for such time as the Engineer may deem necessary due to the failure on the part of Contractor to carry out orders given or to perform any provisions of the Services. Contractor shall immediately comply with the written order of the Engineer to suspend the Services wholly or in part and shall not resume the Services until ordered to do so in writing by the Engineer. Such suspension shall be without liability to Contractor on the part of City. In the event a suspension of work is ordered because of failure on the part of Contractor to carry out orders given or to perform any provisions of the Services, such suspension of the Services shall not relieve Contractor of responsibility to complete the Services within the time limit set forth herein and shall not be considered cause for extension of the time for completion and, further, such suspension of the Services shall not entitle Contractor to any additional compensation.
1.8 Familiarity with Work and Worksite. By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the Services, (ii) has carefully considered how the Services should be performed, and (iii) fully understands the facilities, difficulties, and restrictions attending performance of the Services. If the Services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of the Services hereunder. Should Contractor discover any latent or unknown conditions, which will materially affect the performance of the Services hereunder, Contractor shall immediately inform City of such fact and shall not proceed until written instructions are received from the Contract Administrator.
1.9 Further Responsibilities of the Parties. Both Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless otherwise specified in this Agreement, neither Party shall be responsible for the service of the other.
SECTION 2. COMPENSATION.
2.1 Contract Amount. City hereby agrees to pay Contractor a sum not to exceed «CONTRACT_AMOUNT_SPELLED_OUT» («Contract_Amount») notwithstanding any contrary indications that may be contained in Contractor’s proposal or bid, for the Services to be performed and reimbursable costs incurred under this Agreement. This compensation may be administratively adjusted pursuant to Section 8.4 herein. In the event of a conflict between this Agreement and Exhibit B, regarding the amount of compensation, this Agreement shall prevail.
City shall pay Contractor for the Services rendered pursuant to this Agreement at the time and in 655
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the manner set forth herein. The payments specified in this Section 2 shall be the only payments from City to Contractor for the Services rendered pursuant to this Agreement. Contractor shall submit all invoices to City in the manner specified herein.
2.2 Method of Compensation. The method of compensation may include: (i) a lump sum payment upon completion, (ii) payment in accordance with specified tasks or the percentage of completion of the Services, (iii) payment for time and materials based upon Contractor’s rates as specified in the Scope of Services, provided that time estimates are provided for the performance of subtasks, or (iv) such other methods as may be specified in the Scope of Services. In no event shall compensation exceed the amount set forth in Subsection 2.1.
2.3 Invoices. Contractor shall submit invoices monthly during the term of this Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to the invoice date. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and subcontractor contracts. Subcontractor charges shall also be detailed by such categories. Invoices shall contain:
a. Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.;
b. The beginning and ending dates of the billing period; c. A “Task Summary” containing the original contract amount, the amount of prior billings, the total due this period, the balance available under this Agreement, and the percentage of completion;
d. At City’s option, for each item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person performing the Services, the hours spent by each person, a brief description of the Services, and each reimbursable expense; e. The total number of hours of work performed under this Agreement by Contractor and each employee, agent, and subcontractor of Contractor performing the Services hereunder necessary to complete the Services described in Exhibit B; f. Receipts for expenses to be reimbursed;
g. The Principals’ signatures.
Invoices shall be submitted to:
City of Adelanto
Attn: Accounts Payable
11600 Air Expressway
Adelanto, CA 92301
2.4 City Payment of Invoices. City shall independently review each invoice submitted by Contractor to determine whether the work performed and expenses incurred are in compliance 656
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with the provisions of this Agreement. City will use its best efforts to cause Contractor to be paid within thirty (30) days of receipt of Contractor’s correct and undisputed invoice. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Contractor for correction and resubmission. Pursuant to California Public Contract Code Section 20104.50, Contractor is notified that for public works Services, City’s failure to pay undisputed and properly submitted invoices within thirty (30) days shall be subject to interest at the legal rate set forth in Code of Civil Procedure Section 685.010. Any invoice for public works Services determined not to be a proper invoice suitable for payment shall be returned to the Contractor as soon as practicable, but not later than seven (7) days, after receipt. An invoice returned pursuant to the foregoing shall be accompanied by a writing stating the reasons why the invoice is not proper.
2.5 Retention of Funds, Final Payment.
a. Contractor hereby authorizes City, in the sole discretion of the Contract Administrator, to retain and deduct from any amount payable to Contractor not exceeding five percent (5%) of the total compensation The retained funds shall be paid to Contractor within sixty (60) days after final acceptance of the Services by the City and after Contractor has furnished City with full release of all undisputed payments under this Agreement. In the event there are any claims specifically excluded by Contractor from the operation of the release, City may retain proceeds of up to one hundred fifty percent (150%) of the amount in dispute. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Contractor to insure, indemnify, and protect City as provided in this Agreement. b. Notwithstanding Paragraph a, California Public Contract Code Section 22300 permits the substitution of securities for any retention monies withheld by City for public works Services. At the request and expense of Contractor, securities equivalent to the monies withheld shall be deposited with City, or with a state or federally chartered bank in California as the escrow agent, who shall then pay such monies to Contractor. City retains the sole discretion to approve the bank selected by Contractor to serve as escrow agent. Upon satisfactory completion of the Services, the securities shall be returned to Contractor. Securities eligible for investment shall include those listed in Government Code Section 16430. Contractor shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon. In the alternative, under California Public Contract Code Section 22300, Contractor may request City to make payment of earned retention monies directly to the escrow agent at the expense of Contractor. Also at Contractor’s expense, Contractor may direct investment of the payments into securities, and Contractor shall receive interest earned on such investment upon the same conditions as provided for securities deposited by Contractor. Upon satisfactory completion of the Services, Contractor shall receive from the escrow agent all securities, interest and payments received by escrow agent from City pursuant to the terms of California Public Contract Code Section 22300.
2.6 Total Payment. City shall not pay any additional sum for any expense or cost whatsoever incurred by Contractor in rendering the Services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Contractor submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entirety of the Services performed 657
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pursuant to this Agreement, unless this Agreement is modified in writing prior to the submission of such an invoice.
2.7 Hourly Fees. Fees for the Services performed by Contractor on an hourly basis shall not exceed the amounts shown on Exhibit A.
2.8 Reimbursable Expenses. Reimbursable expenses are included within the maximum amount of this Agreement. Reimbursable expenses not listed in Exhibit A must be approved in advance by the Contract Administrator, in his or her sole discretion. Contractor shall not be entitled to any additional compensation for the attendance of meetings reasonably deemed necessary by City for the execution of the Services.
2.9 Payment of Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes.
2.10 Payment upon Termination. In the event that City or Contractor terminates this Agreement pursuant to Section 8, City shall compensate Contractor for all outstanding costs and reimbursable expenses incurred for Services satisfactorily completed and for reimbursable expenses as of the date of written notice of termination. Contractor shall maintain adequate logs and timesheets in order to verify costs and reimbursable expenses incurred to that date.
2.11 No Waiver. Payment to Contractor for Services performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.
SECTION 3. FACILITIES AND EQUIPMENT.
3.1 Contractor Provides Facilities and Equipment. Except as otherwise provided, Contractor shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. In no event shall City be required to furnish any facility or equipment that may involve incurring any direct expense.
3.2 Utility Relocation. Where applicable, pursuant to California Government Code Section 4215, City is responsible for removal, relocation, or protection of existing main or trunkline utilities to the extent such utilities were not identified in the invitation for bids or specifications. City shall reimburse Contractor for any costs incurred in locating, repairing damage not caused by Contractor, and removing or relocating such unidentified utility facilities.
Contractor shall not be assessed liquidated damages for delay arising from the removal or relocation of such unidentified utility facilities.
3.3 Trenches or Excavations. Pursuant to California Public Contract Code Sections 6705 and 7104, in the event the work included in this Agreement requires excavations more than four (4) feet in depth, the following shall apply.
a. Contractor shall promptly, and before the following conditions are disturbed, notify City, in writing, of any: (1) material that Contractor believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law; (2) subsurface or latent physical conditions at the site different from those indicated 658
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by information about the site made available to bidders prior to the deadline for submitting bids; or (3) unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement.
b. If the Services involve an estimated expenditure in excess of Twenty-Five Thousand Dollars ($25,000) for the excavation of any trench or trenches five (5) feet or more in depth, Contractor shall submit for acceptance by the City Engineer, in advance of excavation, a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches. If such plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer.
c. City shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in Contractor’s cost of, or the time required for, performance of any part of the work shall issue an order or amendment for additional services pursuant to Subsection 8.4 or 8.5 of this Agreement. d. If a dispute arises between City and Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor’s cost of, or time required for, performance of any part of the work, Contractor shall not be excused from any scheduled completion date provided for by this Agreement, but shall proceed with all work to be performed under this Agreement. Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the Parties.
SECTION 4. INSURANCE AND BOND REQUIREMENTS.
Before beginning any work under this Agreement, Contractor, at its own cost and expense, shall procure the types and amounts of insurance listed below and provide certified copies of insurance policies and original endorsements, indicating that Contractor has obtained or currently maintains insurance that meets the requirements of this Section and which is satisfactory, in all respects, to City. Contractor shall also deliver the payment and performance bonds required by this Section 4 with City. Contractor shall maintain the insurance policies required by this Section throughout the term of this Agreement. The cost of such insurance shall be included in Contractor’s compensation. Contractorshall not allow any subcontractor, Contractor or other agent to commence work on any subcontract until Contractor has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City, and has delivered the required bonds to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Contractor acknowledges the insurance policy must cover interinsured suits between City and other insureds. Contractor agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which Contractor may be held responsible for the payment of damages to any persons or property resulting from Contractor’s activities or the activities of any person or persons for which Contractor is otherwise responsible nor shall it limit Contractor’s indemnification liabilities as provided in Section 5. Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide, or in the Federal Register, and only if they are of a financial category Class VII 659
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or better, unless such requirements are waived by the Contract Administrator in the Contract Administrator’s sole discretion. If this Agreement continues for more than three (3) years duration, or in the event the Contract Administrator determines that the Services to be performed under this Agreement creates an increased or decreased risk of loss to City, Contractor agrees that the minimum limits of the insurance policies and the performance bond required by Section 4 may be changed accordingly upon receipt of written notice from the Contract Administrator; provided that Contractor shall have the right to appeal a determination of increased coverage by the Contract Administrator to the City Council of City within ten (10) days of receipt of notice from the Contract Administrator.
4.1 Workers’ Compensation. Contractor shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Contractor pursuant to the provisions of the California Labor Code. Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident, ONE MILLION DOLLARS ($1,000,000.00) disease per employee, and ONE MILLION DOLLARS ($1,000,000.00) disease per policy. In the alternative, Contractor may rely on a selfinsurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the California Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or Contractor, if a program of selfinsurance is provided, shall waive all rights of subrogation against City and its officers, officials, employees, and authorized volunteers for loss arising from the Services performed under this Agreement. Pursuant to California Labor Code Section 1860, Contractor is required to secure the payment of compensation to Contractor’s employees. Pursuant to California Labor Code Section 1861, Contractor hereby submits to City the following:
I am aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.
Contractor Initial: _______
4.2 Commercial General and Automobile Liability Insurance. a. General Requirements. Contractor, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage, for risks associated with the Services contemplated by this Agreement, TWO MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General Liability Insurance or an Automobile Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the Services to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and 660
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damage to property resulting from the Services contemplated under this Agreement, including the use of hired, owned, leased, and non-owned automobiles. b. Minimum Scope of Coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 Code 2, 8, and 9 including “any auto” and endorsement CA 0025 or equivalent). No endorsement shall be attached limiting the coverage. c. Additional Requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
(i) The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
(ii) The policy must cover inter-insured suits and include a “Separation of Insureds” or “severability” clause which treats each insured separately. (iii) The insurance must be maintained for at least one (1) year following the completion of the Services or the expiration or termination of this Agreement. (iv) Any failure of Contractor to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
4.3 Professional Liability Insurance.
a. General Requirements. Contractor, at its own expense, shall maintain professional liability insurance appropriate to Contractor’s profession. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of, or related to the Services performed under this Agreement. The insurance must be maintained for at least five (5) consecutive years following the completion of the Services or the expiration or termination of this Agreement. During this additional five (5)- year period, Contractor shall annually and upon request of City submit written evidence of this continuous coverage.
b. Claims-Made Limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
(i) The retroactive date of the policy must be shown and must be no later than the commencement of the Services.
(ii) If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the Effective Date of this Agreement, Contractor must provide extended reporting coverage for a minimum of five (5) years after the expiration or termination of this Agreement or the completion of the Services. Such continuation coverage may be provided by one of the following: (1) renewal of the existing policy; 661
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(2) an extended reporting period endorsement; or (3) replacement insurance with a retroactive date no later than the commencement of the Services under this Agreement. City shall have the right to exercise, at Contractor’s sole cost and expense, any extended reporting provisions of the policy, if Contractor cancels or does not renew the coverage.
(iii) A copy of the claim reporting requirements must be submitted to City prior to the commencement of the Services under this Agreement.
4.4 Pollution Liability Insurance. Contractor, at its own expense, shall maintain pollution liability insurance written on a per occurrence for bodily injury, personal injury and property damage. The policy of insurance shall be in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per pollution incident and ONE MILLION DOLLARS ($1,000,000.00) in the general aggregate. The policy shall apply to any incidents at or from any location on which Contractor performs the Services under this Agreement. The insurance must be maintained for at least one (1) year following the completion of Contractor’s services or the expiration or termination of this Agreement.
4.5 All Policies Requirements.
a. Verification of Coverage. Prior to beginning the Services under this Agreement, Contractor shall furnish City with certificates of insurance, additional insured endorsement or policy language granting additional insured status complete certified copies of all policies, including complete certified copies of all endorsements. All copies of policies and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. The certificate of insurance must include the following reference:
«Contract_Title». The name and address for additional insured endorsements, certificates of insurance and notice of cancellation is: City of Adelanto, 11600 Air Expressway, Adelanto, CA 92301. City must be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of Contractor.
b. Notice of Reduction in or Cancellation of Coverage. Contractor shall provide written notice to City within ten (10) working days if: (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible or self insured retention is increased. In the event any of said policies of insurance are cancelled, Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 4 to the Contract Administrator.
c. Additional Insured; Primary Insurance. City and its officers, employees, agents, and authorized volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of the Services performed by or on behalf of Contractor, including the insured’s general supervision of Contractor; products and completed operations of Contractor, as applicable; premises owned, occupied, or used by Contractor; and automobiles owned, leased, or used by Contractor in the course of providing the Services pursuant to this Agreement. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or authorized volunteers. The insurance provided to City as an additional insured must apply on a primary and non-contributory basis with respect to any 662
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insurance or self-insurance program maintained by City. Additional insured status shall continue for one (1) year after the expiration or termination of this Agreement or completion of the Services.
A certified endorsement must be attached to all policies stating that coverage is primary insurance with respect to City and its officers, officials, employees, and volunteers, and that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss under the coverage. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against City, its officers, employees, agents, authorized volunteers, and their respective insurers.
d. Deductibles and Self-Insured Retentions. Contractor shall obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the Services. During the term of this Agreement, only upon the prior express written authorization of the Contract Administrator, Contractor may increase such deductibles or self-insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured retention levels with a requirement that Contractor procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them.
e. Subcontractors. Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
f. Variation. The Contract Administrator may, but is not required to, approve in writing a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that City’s interests are otherwise fully protected.
4.6 Payment and Performance Bonds. Concurrently with execution of this Agreement, Contractor shall deliver to City a payment (labor and materials) bond and a performance bond, each in the sum of the amount of this Agreement, in the forms provided by the City Clerk, which secure the faithful performance of this Agreement. The bonds shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bonds shall be unconditional and remain in force during the entire term of this Agreement and shall be null and void only if Contractor promptly and faithfully performs all terms and conditions of this Agreement. Payment and performance bonds shall be secured from a surety company rated Grade “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide, or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Contract Administrator due to unique circumstances, and shall be authorized to write such bonds in the State of California. Contractor shall pay all bond premiums, costs, and incidentals. Pursuant to California Public Contract Code Section 22300, substitution of eligible equivalent securities for any moneys withheld to ensure performance under this Agreement may be permitted at the request and expense of Contractor. Without limiting the foregoing, Contractor understands that Civil Code Section 663
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9550 requires a payment bond for all public works contracts involving an expenditure of more than Twenty-Five Thousand Dollars ($25,000).
4.7 Remedies. In addition to any other remedies at law or equity City may have if Contractor fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Contractor’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement; b. Order Contractor to stop work under this Agreement or withhold any payment that becomes due to Contractor hereunder, or both stop work and withhold any payment, until Contractor demonstrates compliance with the requirements hereof; and/or c. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a professional standard of care for performance of the Services, to the fullest extent permitted by law, Contractor shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its officers, employees, officials, volunteers, and agents from and against any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards, assessments, fines, or penalties of any kind (including costs and expenses incurred by City and reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and nature and, if Contractor fails to provide a defense for City, the legal costs of counsel retained by City) and any judgment (collectively, “Claims”) to the extent same are caused in whole or in part by any negligent or wrongful act, error, or omission of Contractor, its officers, agents, employees, or subcontractors (or any entity or individual that Contractor shall bear the legal liability thereof) in the performance of professional services under this Agreement.
5.2 Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Contractor shall indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and all of its officers, employees, officials, volunteers, and agents from and against any and all Claims, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Contractor or by any individual or entity for which Contractor is legally liable, including but not limited to officers, agents, employees or subcontractors of Contractor. Contractor will promptly pay any judgment rendered against City, its officers, agents, or employees for any such Claims arising out of or in connection with the performance of or failure to perform such Services, operations or activities of Contractor hereunder.
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5.3 Subcontractors. Contractor shall incorporate similar indemnity agreements with its subcontractors. Contractor shall be fully responsible to indemnify City, and failure of City to monitor compliance with these provisions shall not be a waiver hereof.
5.4 Limitation of Indemnification. The provisions of this Section 5 do not apply to claims occurring as a result of City’s sole or active negligence. The provisions of this Section 5 shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officers, officials, employees, and agents acting in an official capacity.
In the event any applicable law contains a limitation on indemnification under this Agreement, such limitation shall supersede the provisions herein only to the extent required by said law.
SECTION 6. INDEPENDENT CONTRACTOR.
At all times during the term of this Agreement, Contractor shall be an independent contractor and shall not be an employee of City. City shall have the right to control Contractor only insofar as the results of the Services rendered pursuant to this Agreement and assignment of personnel pursuant to Subsection 1.4; however, otherwise City shall not have the right to control the means by which Contractor accomplishes the Services rendered pursuant to this Agreement.
The personnel performing the Services under this Agreement on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Contractor shall not at any time or in any manner represent that it is or any of its officers, employees, or agents are in any manner officers, officials, employees, or agents of City. Contractor shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. Except for the fees paid to Contractor as provided in this Agreement, City shall not pay salaries, wages, or other compensation to Contractor for performing the Services hereunder for City. City shall not be liable for compensation or indemnification to Contractor for injury or sickness arising out of performing the Services hereunder. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (“PERS”) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. Contractor shall perform all Services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role.
City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Contractor and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Contractor shall not hire or employ any person to perform work within City or allow any person to perform the Services required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Contractor 665
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acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with such laws. Contractor shall require the same of all subcontractors.
7.3 Prevailing Wages. Contractor acknowledges and agrees that it shall be independently responsible for reviewing the applicable prevailing wage laws and regulations and effectuating compliance with such laws, including, but not limited to the prevailing wage and related requirements set forth in this Subsection 7.3. Contractor shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of California Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.
a. Public Work. Contractor hereby expressly acknowledges and agrees that City has never previously affirmatively represented to Contractor, its employees or agents in writing or otherwise that the Services are not a “public work,” as defined in Section 1720 of the California Labor Code. It is agreed by the Parties that, in connection with the development, construction (as defined by applicable law) and operation of the Services, including, without limitation, any public work (as defined by applicable law), if any, Contractor shall bear all risks of payment or non-payment of state and/or federal prevailing wages and/or the implementation of California Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time, and/or any other provision of law. To the extent applicable, City will enforce all penalties required by law for Contractor’s failure to pay prevailing wages. b. California Labor Code. The Contractor’s attention is directed to Division 2, Part 7, Chapter 1 of the California Labor Code and especially to Article 2 (Wages); and Article 3 (Working Hours), thereof.
(i) In accordance with Sections 1773 and 1773.2 of the California Labor Code, City has found and determined the general prevailing rates of wages in the locality in which the public work is to be performed are those determined by the Director of Industrial Relations and available at https://www.dir.ca.gov/OPRL/2022-1/PWD/Southern.html. Copies of the prevailing rates of wages are maintained with City’s principal office and are available to any interested party on request. Contractor shall post a copy of the prevailing rate of per diem wages at each job site.
(ii) Contractor is aware of and will comply with the provisions of California Labor Code Section 1776, including the keeping of payroll records and furnishing certified copies thereof in accordance with said Section. Pursuant to California Labor Code Section 1771.4, Contractor must submit certified payroll records to the Labor Commissioner using the Department of Industrial Relations’ electronic certified payroll reporting (eCPR) system. (iii) Pursuant to California Labor Code Section 1810, it is stipulated hereby that eight (8) hours labor constitutes a legal day’s work hereunder. (iv) Pursuant to California Labor Code Section 1815, work performed by employees of contractors in excess of eight (8) hours per day, and 40 hours during any one 666
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week, shall be permitted upon public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than 1 ½ times the basic rate of pay. (v) Pursuant to California Labor Code Section 1813, it is stipulated hereby that Contractor shall, as a penalty to City, forfeit twenty-five dollars ($25) for each worker employed in the execution of this Agreement by Contractor or by any subcontractor hereunder for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one (1) calendar week in violation of the provisions of Article 3 (commencing with Section 1810), Chapter 1, Part 7, Division 2 of the California Labor Code.
(vi) Contractor is aware of and will comply with the provisions of California Labor Code Sections 1777.5 and 1777.6 with respect to the employment of apprentices.
Pursuant to Section 1777.5 it is hereby stipulated that Contractor will be responsible for obtaining compliance therewith on the part of any and all sub-consultants or subcontractors employed by Contractor in connection with this Agreement.
(vii) Pursuant to California Labor Code Section 1775, it is hereby stipulated that Contractor shall, as a penalty to City, forfeit not more than two-hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of Industrial Relations for the work or craft in which the worker is employed for the Services by Contractor or any sub-consultant or subcontractor. c. Bidding Eligibility. Pursuant to California Labor Code Section 1771.1, no contractor or subcontractor (or consultant or subconsultant) may be listed on a bid proposal for a public works project unless registered with the Department of Industrial Relations. Pursuant to California Public Contract Code Section 6109, Contractor may not perform any Services hereunder with a subcontractor who is ineligible to perform the Services pursuant to Section 1777.1 or 1777.7 of the California Labor Code.
d. DIR Monitoring. Pursuant to California Labor Code Section 1771.4, Contractor is hereby notified that this project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
e. Indemnification Related to Prevailing Wages. Section 5, Indemnification, specifically encompasses Claims arising from or related to (i) the noncompliance by Contractor or any party performing the Services of any applicable local, state, and/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, the requirement to pay state prevailing wages and hire apprentices); (ii) the implementation of California Labor Code Sections 1726 and 1781, as the same may be amended from time to time, or any other similar law; and/or (iii) failure by Contractor or any party performing the Services to provide any required disclosure or identification as required by California Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.
7.4 Licenses and Permits, Fees, and Assessments. Contractor represents, warrants, and covenants to City that Contractor and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to 667
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practice their respective professions, and perform the Services. Contractor represents, warrants, and covenants to City that Contractor and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions, and perform the Services. In addition to the foregoing, Contractor and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from City. Contractor shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Contractor’s performance of the Services, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed, or imposed against City hereunder.
7.5 Conflicts of Interest. Contractor represents, warrants, and covenants that Contractor presently has no interest, direct or indirect, which would interfere with or impair in any manner or degree the performance of Contractor’s obligations and responsibilities under this Agreement. Contractor further agrees that while this Agreement is in effect, Contractor shall not acquire or otherwise obtain any interest, direct or indirect, that would interfere with or impair in any manner or degree the performance of Contractor’s obligations and responsibilities under this Agreement.
7.6 Unfair Business Practices Claims. In entering into this Agreement, Contractor offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials related to this Agreement. This assignment shall be made and become effective at the time City renders final payment to Contractor without further acknowledgment of the Parties.
7.7 Annual Appropriation of Funding. In accord with Article 16 Section 18 of the California Constitution, payment of compensation under this Agreement is contingent upon annual appropriation of funds by City for that purpose. Contractor acknowledges and agrees that to the extent that the Services extend beyond one (1) fiscal year, payment for such Services is expressly conditioned on City’s annual appropriation of funds for such Services for each year. If no funds are appropriated then this Agreement shall be terminated. City pledges and agrees to process such appropriation requests annually and in good faith. Nothing in this Subsection shall be construed to limit the right of either Party to terminate this Agreement as provided herein.
7.8 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, Contractor and its sureties shall be liable for and shall pay to City the sum of FIVE HUNDRED DOLLARS ($500.00) as liquidated damages for each working day of delay in the performance of any of the Services. City may withhold from any monies payable on account of the Services performed by Contractor any accrued liquidated damages. 668
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SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may terminate this Agreement at any time and without cause upon thirty (30) days’ written notification to Contractor. City may also terminate this Agreement pursuant to Subsection 8.8.
8.2 Termination by Contractor. Contractor may terminate this Agreement upon sixty (60) days’ written notice to City.
8.3 Consequences of Termination. In the event of termination, Contractor shall be entitled to compensation for the Services satisfactorily performed up to the date of termination; City, however, may condition payment of such compensation upon Contractor delivering to City any or all materials provided to Contractor or prepared by or for Contractor or City in connection with this Agreement. Upon receipt of any notice of termination, Contractor shall immediately cease all Services hereunder except such as may be specifically approved by the Contract Administrator.
8.4 Administrative Change Orders. City shall have the right at any time during the performance of the Services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from said work. No such extra work may be undertaken unless a written change order is first given by the Contract Administrator to Contractor, incorporating therein any adjustment in (i) the total compensation, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of Contractor. Any increase in compensation of up to five percent (5%) of the total compensation or TWENTY-FIVE THOUSAND DOLLARS ($25,000), whichever is less; or in the time to perform of up to one hundred eighty (180) days may be approved in writing by the Contract Administrator. Contractor understands and agrees that, if City grants an extension in time without additional work, City shall have no obligation to provide Contractor with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Contractor for any otherwise reimbursable expenses incurred during the extension period. All other extensions or modifications to this Agreement shall require a written amendment pursuant to Subsection 8.5.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties. The Contract Administrator shall have the authority to execute amendments to this Agreement which do not materially change the terms hereof, in the Contract Administrator’s discretion, to the extent permitted by applicable federal, state, and local law. The Contract Administrator may refer any proposed amendment to the City Council for review and approval.
8.6 Assignment and Subcontracting. City and Contractor recognize and agree that this Agreement contemplates personal performance by Contractor and is based upon a determination of Contractor’s unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Contractor. Contractor may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Contractor shall not subcontract any portion of the performance contemplated and provided for herein, other 669
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than to the subcontractors noted in the Scope of Services, without prior written approval of the Contract Administrator. In the event of any unapproved assignment, including in connection with any bankruptcy proceeding, this Agreement shall be void. No approved assignment shall release Contractor or any surety of Contractor of any liability hereunder without the express consent of City.
8.7 Survival. All obligations arising prior to the expiration or termination of this Agreement and all provisions of this Agreement allocating liability between City and Contractor shall survive the expiration or termination of this Agreement.
8.8 Disputes, Default. In the event that Contractor is in default under the terms of this Agreement, City shall not have any obligation or duty to continue compensating Contractor for any of the Services performed after the date of default. Instead, City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, in the sole discretion of the Contract Administrator. During the period of time that Contractor is in default, City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Contractor does not cure the default, City's remedies shall include, but not be limited to, any or all of the following:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Contractor pursuant to this Agreement; c. Retain a different contractor to complete the Services; and/or d. Charge Contractor the difference between the cost to complete the Services that is unfinished at the time of breach and the amount that City would have paid Contractor pursuant to Section 2 if Contractor had completed the Services.
Any failure on the part of City to give notice of Contractor’s default shall not be deemed to result in a waiver of City’s legal rights or any rights arising out of any provision of this Agreement.
8.9 Claims by Contractor. Claims, as that term is defined in California Public Contract Code Section 9204, by Contractor and, where applicable, any subcontractor, in connection with a public works project shall by subject to the mediation procedure in California Public Contract Code Section 9204.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Documents and Data. All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents, and other materials plans, drawings, estimates, test data, survey results, models, renderings, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings, digital renderings, or data stored digitally, magnetically, or in any other medium (the 670
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“Documents and Materials”) prepared or caused to be prepared by Contractor, its employees, subcontractors, and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Administrator or upon the expiration or termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the Documents and Materials hereunder. Any use, reuse or assignment of such completed Documents and Materials for other projects and/or use of uncompleted documents without specific written authorization by Contractor will be at City’s sole risk and without liability to Contractor, and Contractor’s guarantee and warranties shall not extend to such use, revise, or assignment. Contractor may retain copies of such Documents and Materials for its own use.
Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any Documents and Materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom.
9.2 Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, rights of reproduction, and other intellectual property embodied in the Documents and Materials.
Contractor shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for the Documents and Materials the subcontractor prepares under this Agreement. Contractor represents and warrants that Contractor has the legal right to license any and all of the Documents and Materials. Contractor makes no such representation and warranty in regard to the Documents and Materials which were prepared by design professionals other than Contractor or provided to Contractor by City. City shall not be limited in any way in its use of the Documents and Materials at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.
9.3 Records. Contractor shall keep, and require subcontractors to keep, such ledgers books of accounts, invoices, vouchers, canceled checks, reports (including but not limited to payroll reports), studies, or other documents relating to the disbursements charged to City and the Services performed hereunder (the “Books and Records”), as shall be necessary to perform the Services required by this Agreement and enable the Contract Administrator to evaluate the performance of such Services. Any and all such Books and Records shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Administrator shall have full and free access to such Books and Records at all times during normal business hours of City, including the right to inspect, copy, audit, and make records and transcripts from such Books and Records. Such Books and Records shall be maintained for a period of three (3) years following completion of the Services hereunder, and City shall have access to such Books and Records in the event any audit is required. In the event of dissolution of Contractor’s business, custody of the Books and Records may be given to City, and access shall be provided by Contractor’s successor in interest. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement. 671
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9.4 Reports. Contractor shall periodically prepare and submit to the Contract Administrator such reports concerning the performance of the Services required by this Agreement as the Contract Administrator shall require. Contractor hereby acknowledges that City is greatly concerned about the cost of the Services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Administrator of said fact, circumstance, technique, or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed.
9.5 Confidentiality. City and Contractor agree that, until final approval by City, all data, plans, specifications, reports, and other documents are confidential and will not be released to third parties without prior written consent of both Parties unless required by law. Contractor, its officers, employees, agents, or subcontractors, shall not, without prior written authorization from the Contract Administrator or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement. If Contractor, or any officer, employee, agent, or subcontractor of Contractor, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Contractor for any Claims caused by or incurred as a result of Contractor’s conduct. Contractor shall promptly notify City should Contractor, its officers, employees, agents, or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request, court order, or subpoena from any party regarding this Agreement and the Services performed thereunder. City retains the right, but has no obligation, to represent Contractor or be present at any deposition, hearing, or similar proceeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response. Response to a subpoena or court order shall not be considered a voluntary disclosure so long as Contractor gives City notice of such court order or subpoena as provided herein. Contractor understands and agrees that it may be required to provide documents to the City to be produced in response to a Public Records Act request.
SECTION 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If either Party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees and expenses including costs, in addition to any other relief to which that Party may be entitled; provided, however, that the attorneys’ fees awarded pursuant to this Subsection shall not exceed the hourly rate paid by City for legal services multiplied by the reasonable number of hours spent by the prevailing Party in the conduct of the litigation. The court may set such fees in the same action or in a separate action brought for that purpose.
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10.2 Venue. In the event that either Party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in Riverside County.
10.3 Severability. If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby and all other parts of this Agreement shall nevertheless be in full force and effect.
10.4 Section Headings and Subheadings. The section headings and subheadings contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement.
10.5 No Implied Waiver of Breach. Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Contractor shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
10.6 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties.
10.7 Contractor Principals and Representatives. The following principals of Contractor (“Principals”) are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
(Name) (Title)
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability, and reputation of the Principals were a substantial inducement for City to enter into this Agreement. Therefore, the Principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the Services hereunder. All personnel of Contractor, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the Principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City.
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10.8 City Contract Administration. This Agreement shall be administered by a City employee, «Staff_Contact», «Staff_Title» (“Contract Administrator”). All correspondence shall be directed to or through the Contract Administrator or his designee. It shall be Contractor’s responsibility to assure that the Contract Administrator is kept informed of the progress of the performance of the Services and Contractor shall refer any decisions which must be made by City to the Contract Administrator. Unless otherwise provided by applicable law, the Contract Administrator shall have the power to act on behalf of City for all purposes under this Agreement.
Unless otherwise provided in this Agreement, Contractor shall not accept direction or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Contractor shall be sent to:
«Contractor»
Attn: «Contractor_Contact»
«Address»
«City», «State» «Zip_Code»
Any written notice to City shall be sent to the Contract Administrator at:
City of Adelanto
11600 Air Expressway
Adelanto, CA 92301
Attn: «Staff_Contact», «Staff_Title»
with a copy to:
City Clerk
City of Adelanto
11600 Air Expressway
Adelanto, CA 92301
Any notice, demand, request, document, consent, approval, or communication either Party desires or is required to give to the other Party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail. Either Party may change its address by notifying the other Party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
10.10 Rights and Remedies. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
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10.11 Integration, Interpretation. This Agreement, including Exhibits A and B, represents the entire and integrated agreement between City and Contractor and supersedes all prior negotiations, representations, or agreements, either written or oral. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
10.12 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
10.13 Execution of Contract. The persons executing this Agreement on behalf of each of the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) that entering into this Agreement does not violate any provision of any other agreement to which said Party is bound.
10.14 Nondiscrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that in the performance of this Agreement there shall be no discrimination against or segregation of, any person or group of persons on account of any impermissible classification including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.15 No Third Party Beneficiaries. There are no intended third-party beneficiaries under this Agreement and no such other third parties shall have any rights or obligations hereunder.
10.16 Nonliability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Contractor, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
10.17 No Undue Influence. Contractor declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City shall receive compensation, directly or indirectly, from Contractor, or from any officer, employee, or agent of Contractor, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement.
10.18 No Benefit to Arise to City Employees. No member, officer, or employee of City, or their designees or agents, and no public official who exercises authority over or has responsibilities with respect to this Agreement during his/her tenure or for one (1) year thereafter, shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for the Services to be performed under this Agreement. 675
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[Signatures on Following Page]
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IN WITNESS WHEREOF, the Parties hereto have executed and entered into this Agreement as of the Effective Date.
CITY OF ADELANTO
«City_Signature»
Attest:
Brenda Lopez, City Clerk
Approved as to Form:
Todd Litfin, City Attorney
CONTRACTOR
«Contractor_Signature_1»
«Contractor_Signature_2»
[Note: 2 officer’s signatures required if
Contractor is a corporation, unless provided
with a certificate of secretary in-lieu]
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EXHIBIT A
EXHIBIT A
SCOPE OF SERVICES
Services shall include «Contract_Title» services, including labor, materials, services and equipment is the total amount of all lump sum items and of all unit price sums, determined by multiplying the unit price for each item times the actual quantity of each such item, in the amount not to exceed «CONTRACT_AMOUNT_SPELLED_OUT» («Contract_Amount») as further detailed in the attached pages (if any). If the Services include Services pursuant to a request for proposals or bid, the Services shall include the work contemplated by the entire “Bid Package” or “Request for Proposals” for the Services, including all plans, addenda, documentation, and specifications attached thereto. A copy of the Bid Package and/or Request for Proposals, as applicable shall be retained with a copy of this Agreement. Contractor shall keep a copy of the same for at least three (3) years following termination of this Agreement.
[ATTACH BID PACKAGE / SCOPE OF WORK]
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CITY COUNCIL AGENDA REPORT
A D E L A N T O G O V E R N M E N T A L C E N T E R | 1 1 6 0 0 A I R E X P R E S S W A Y | A D E L A N T O , C A L I F O R N I A 9 2 3 0 1
DATE: October 25, 2023
TO: Honorable Mayor and City Council Members
FROM: Jessie Flores, City Manager
BY: Angel Castellanos, Finance Director
SUBJECT: CONSIDERATION OF A RESOLUTION PROPOSING AND SUBMITTING TO THE VOTERS AT THE PRESIDENTIAL PRIMARY ELECTION ON MARCH 5, 2024, A
PROPOSAL TO ADOPT AN INITIATIVE ORDINANCE ESTABLISHING A SPECIAL TAX
ON VACANT PROPERTIES TO FUND SOLUTIONS FOR PARKS AND RECREATION,
ILLEGAL DUMPING REMEDIATION, PUBLIC SAFETY, CAPITAL IMPROVEMENT
PROJECTS, AND SPECIFIED PROGRAMS, REQUESTING THAT THE BALLOT
QUESTION AND MEASURE BE CONSOLIDATED WITH THE COUNTY ELECTION
CONTESTS, SETTING DEADLINES FOR THE FILING OF WRITTEN ARGUMENTS AND
REBUTTALS REGARDING THE MEASURE, AND DIRECTING THE CITY ATTORNEY TO PREPARE AN IMPARTIAL ANALYSIS.
STAFF RECOMMENDATION:
It is recommended that the City Council conduct a public hearing, receive public input, consider and adopt:
(1) Resolution No. 23-81 which:
a. Submits to the City’s voters at the March 5, 2024, Presidential Primary Consolidated Election an ordinance establishing a special tax on vacant properties to fund solutions for parks and recreation, illegal dumping remediation, public safety, capital improvement projects, and specified programs; b. Requests that the ballot question and measure be consolidated with the County election on March 5, 2024;
c. Sets the deadlines for the filing of written arguments and rebuttals regarding the Measure; and
d. Directs the City Attorney to prepare an impartial analysis. (2) If Resolution No. 23-81 is adopted, then staff recommends that the City Attorney read aloud the title of the Adelanto Vacant Property Tax Ordinance at the City Council meeting, and the City Council make a motion to waive further reading of the Ordinance. The title is:
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AN ORDINANCE OF THE PEOPLE OF THE CITY OF ADELANTO AS APPROVED BY THE CITY’S QUALIFIED ELECTORS AT THE ELECTION HELD ON MARCH 5, 2024, TO
ESTABLISH A SPECIAL PARCEL TAX ON VACANT PROPERTIES
BACKGROUND:
The City of Adelanto has regularly experienced structural budget deficits for at least the last two decades, mostly due to the City’s slow assessed valuation growth and an exceedingly low property tax rate of approximately 1.75 percent. To its credit, the City has continued operations over the years through the use of one-time monies; however, those funds have been depleted and are no longer available to support general fund obligations, such as police and fire.
To address this ongoing problem, additional revenue sources must be identified. One approach is to levy a special tax on every vacant parcel of land (real property) within the City. Out of the 13,310 total parcels within the City, an estimated 3,976 parcels, or about 25,000 acres, are vacant land. This vacant land negatively impacts the community, attracting crime, blight, and illegal dumping. In addition, these vacant properties take up space that could be used for housing or commercial development. Moreover, vacant properties typically depress property values across an entire neighborhood and generate little or no tax revenues.
Staff are recommending that the City Council consider the following tax assessment based on the zoning of the parcel:
Zoning District Zoning Description Annual Tax Rate
ADD Airport Development District $200 per acre per parcel AP Airport Park $200 per acre per parcel
BP Business Park $600 per acre per parcel
C Commercial $600 per acre per parcel
DL-2.5 Desert Living 2.5 $50 per acre per parcel
DL-5 Desert Living 5 $50 per acre per parcel
DL-9 Desert Living 9 $50 per acre per parcel
LM Light Manufacturing $600 per acre per parcel
MI Manufacturing/Industrial $600 per acre per parcel
MU Mixed Use $600 per acre per parcel
OS Open Space $50 per acre per parcel
PU Public Utilities $0 per acre per parcel
R1 Single Family Residential $300 per acre per parcel
R3-30 High Density Residential $300 per acre per parcel R3-8 Medium Density Residential $400 per acre per parcel R-M12 Medium Density Residential $400 per acre per parcel R-S1 Single Family Residential $300 per acre per parcel R-S5 Single Family Residential $300 per acre per parcel U Uncategorized or unassigned $200 per acre per parcel
Based upon the above tax rate, Staff estimate that the tax will generate revenue for each Zoning District as depicted below:
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Zoning
District
Zoning Description Total
Acres
Tax/Acre Tax Revenue
ADD Airport Development District 1,826.85 $200 $365,370.00 AP Airport Park 313.61 $200 $62,722.00
BP Business Park 698.55 $600 $419,130.00
C Commercial 515.29 $600 $309,174.00
DL-2.5 Desert Living 2.5 2,255.49 $50 $112,774.50
DL-5 Desert Living 5 4,551.50 $50 $227,575.00
DL-9 Desert Living 9 1,458.32 $50 $72,916.00
LM Light Manufacturing 1,602.92 $600 $961,752.00
MI Manufacturing/Industrial 3,409.95 $600 $2,045,970.00 MU Mixed Use 515.47 $600 $309,282.00
OS Open Space 3,394.58 $50 $169,729.00
PU Public Utilities 708.63 $- $-
R1 Single Family Residential 1,665.91 $300 $508,338.00
R3-30 High Density Residential 19.10 $300 $6,021.00
R3-8 Medium Density Residential 43.24 $400 $21,384.00
R-M12 Medium Density Residential 628.01 $400 $271,556.00 R-S1 Single Family Residential 412.58 $300 $124,143.00
R-S5 Single Family Residential 937.43 $300 $289,719.00
U Uncategorized or unassigned 0.00 $200 $0.00
Grand Total 24,957.43 $6,235,400.50
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Staff estimates that the proposed tax could generate approximately $6.2 million per year in revenue.
The proposed special tax shall be dedicated to specific purposes in the following manner:
Purpose
FY24/25
Allocation
FY24/25
Amount (est.)
Allocation
Range
Parks and Recreation 10% 620,000 5 – 20%
Illegal Dumping 5% 310,000 2 – 15%
Public Safety 65% 4,030,000 50 – 80%
Capital Projects 20% 1,240,000 10 – 30%
Total 100% $6,200,000
In addition to creating a dedicated funding source, by taxing vacant properties, this Measure will help encourage people to put those properties into use, thus, potentially increasing the housing supply and commercial/industrial development. Properties that are left vacant for extended periods of time can attract crime and cause blight, harming the surrounding neighborhood. Taxing vacant properties, therefore, is helpful on both ends of this problem. The tax itself will incentivize productive use of vacant properties, and the tax revenue will be used to address underfunded services and eliminate blight and illegal dumping.
The proposed special tax on vacant properties would apply to most vacant properties throughout the City, including undeveloped private property, vacant commercial and industrial buildings, and vacant residential units. A property would be classified as vacant if it is in use less than 50 days during a calendar year. The property need not have a building or structure on it to be "in active use." For example, this proposed tax would not apply to properties that are used as gardens, or to host farmers' markets. The Measure would create an administrative process through which the owner of vacant property could apply for a hardship waiver to be exempted from the tax. For purposes of the exemptions, an owner is defined as a natural person, and does not include business entities, trusts, or any other private organizations which may be considered a “person” by operation of law. Such exemptions include:
• An Owner who qualifies as very low-income, as the term “very low income” is defined by the United States Department of Housing and Urban Development. • An Owner who can demonstrate that exceptional specific circumstances prevent the use or development of the property.
• An Owner of a property that is under active construction. • An Owner of property for which an active building permit application is being processed by the City.
• An Owner of a parcel included in a substantially complete application for planning approvals that has not yet received approval.
• An Owner of a parcel for which a project with development entitlements have been approved but needing time for completion may apply for and receive an administrative two-year exemption.
• An Owner of property for which at least 60 percent of the accessible dry land is actively used for a community garden(s), or Agriculture as defined in Section 17.200.020 and developed in accordance with the applicable standards set forth in Title 17 of this Code. • An Owner (1) who is 65 years of age or older and (2) who qualifies as “low income,” as the term “low income” is defined by the United States Department of Housing and Urban Development. 683
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• An Owner who, regardless of age, (i) receives Supplemental Security Income for a disability or (ii) Social Security Disability Insurance benefits, regardless of age and whose yearly income does not exceed 250 percent of the 2012 federal poverty guidelines issued by the United States Department of Health and Human Services.
• An Owner that is a non-profit organization or entity owned or controlled by a non-profit organization.
To provide citizen oversight for the allocation and use of the revenue generated by the tax, Staff recommends that a Vacant Property Tax Advisory Commission (“Commission”) be established. The Commission would consist of five members, each serving a three-year term, with Councilmembers making recommendations for members to the Mayor. Members of the Commission would then be appointed by the Mayor and confirmed by the City Council. The Commission would be tasked with:
• Reviewing relevant financial and operational reports related to the expenditure of the Vacant Property Tax Fund.
• Publishing an annual report regarding how and to what extent the City has implemented the Measure.
• Recommending to the City Council on how to allocate the tax funds in accordance with the requirements of the Measure
• Reporting to the City Council information, if available, concerning the impact of the Measure on illegal dumping and related issues in the City.
FISCAL IMPACT:
Should the special tax be approved by the voters, the revenue is estimated to be $6.2 million per year.
ATTACHMENTS:
1. Resolution No. 23-81 and Ordinance No. 647 (the proposed ordinance to be voted on by Adelanto voters).
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1 RESOLUTION NO. 23-81
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ADELANTO, CALIFORNIA, (1) GIVING NOTICE OF THE
SUBMISSION TO ADELANTO VOTERS OF A BALLOT
QUESTION FOR A BALLOT MEASURE TO ESTABLISH A
SPECIAL TAX ON VACANT PROPERTIES TO FUND SOLUTIONS
FOR PARKS AND RECREATION, ILLEGAL DUMPING
REMEDIATION, PUBLIC SAFETY, CAPITAL IMPROVEMENT
PROJECTS, AND SPECIFIED PROGRAMS; (2) REQUESTING
THAT THE BALLOT QUESTION AND MEASURE BE INCLUDED
AMONG THE ELECTION CONTESTS AT THE PRESIDENTIAL
PRIMARY ELECTION TO BE HELD ON MARCH 5, 2024, AND
WHICH IS TO BE CONSOLIDATED WITH COUNTYADMINISTERED ELECTION OF THE SAME DATE; AND, (3)
SETTING PRIORITIES FOR FILING WRITTEN ARGUMENTS
AND REBUTTALS REGARDING THE MEASURE AND
DIRECTING THE CITY ATTORNEY TO PREPARE AN
IMPARTIAL ANALYSIS
WHEREAS, the City of Adelanto (“City”) has been suffering from a lack of economic development since its incorporation on December 22, 1970; and WHEREAS, since May 28, 1985, the State of California Department of Transportation has enforced a Controlled Access Highway Agreement along State Highway Route 395 in the City, which has severely restricted economic development within the corridor; and
WHEREAS, roughly 74 percent of the City’s land area is vacant, undeveloped, and unoccupied by any legal use; and
WHEREAS, properties that are vacant or undeveloped deprive the community of the economic opportunity and housing that could be provided if those properties were put into use; and
WHEREAS, properties that are vacant also deprive the City of the revenue needed to provide public services by reducing the tax revenue that is generated when properties provide space for active uses or are developed for housing or businesses; and WHEREAS, members of the community have placed a clear priority on the need for parks and recreation programs; blight and illegal dumping remediation; public safety services, including police, firefighters, and paramedics; and capital projects to improve City infrastructure, including the construction and maintenance of roads, construction and maintenance of sidewalks, and storm water runoff and drainage; and WHEREAS, the lack of economic development within the City has led to an 685
2 insufficient revenue base that cannot fund the services that the members of the community have requested; and
WHEREAS, despite significant cost saving measures the City Council has employed in recent years to address the ongoing budget crisis, including the consolidation of job duties, significant reductions in staffing levels, and the sales of assets and deferment of equipment purchases, current revenue forecasts indicate that the City’s General Fund will struggle to maintain basic service levels in future fiscal years; and WHEREAS, in order to address these issues as soon as possible, the City Council desires to submit to the qualified electors of the City a proposed ordinance to adopt a special tax on vacant properties to support services important to members of the community; and WHEREAS, such a special tax will also discourage property owners from keeping properties vacant; and
WHEREAS, the proposed tax will have a hardship exemption process so that people with financial difficulty or other valid reason the property had to be vacant can have the tax waived, and non-profits are exempt; and
WHEREAS, a citizen oversight committee will be established to provide transparency regarding the special tax by recommending the allocation of the proposed tax revenue to the City Council and monitoring the use of the proceeds of the proposed tax to ensure it is meeting the needs of the community; and
WHEREAS, a non-ad valorem tax on parcels of real property may be approved by the voters as a special tax under California Constitution, Article XIIIA, Section 4 and California Constitution, Article XIIID, Section 3(a)(2); and WHEREAS, Government Code section 37100.5 provides in relevant part: “Except as provided in section 7282 of the Revenue and Taxation Code, the legislative body of any city may levy any tax which may be levied by any charter city, subject to the voters’ approval pursuant to Article XIIIA of the Constitution of California”; and WHEREAS, Government Code section 50075 further provides: “It is the intent of the Legislature to provide all cities, counties, and districts with the authority to impose special taxes pursuant to the provisions of Article XIIIA of the California Constitution”; and
WHEREAS, the City Council intends to (i) call for and give notice of a Municipal Election to be held on Tuesday, March 5, 2024, the submission of a ballot measure to the voters of the City of Adelanto to consider and approve a parcel tax on vacant properties to fund solutions for parks and recreation, illegal dumping remediation, public safety, capital improvement projects, and specified programs (the “Measure”); (ii) request consolidation of such election with the County of San Bernardino; (iii) request that San Bernardino County provide specific election administration services; and (iv) provide for the determination of tie votes by lot unless the City Council adopts the provisions of Elections Code section 15651(b) prior to the conduct of the election resulting in a tie vote; and 686
3 WHEREAS, the subject Measure is referred to as the “Adelanto Vacant Property Tax”; and
WHEREAS, the ballot measure question seeking approval of this Ordinance appeared as follows:
Adelanto Vacant Property Tax
Shall the City of Adelanto’s measure, to fund parks/recreation programs, capital improvements/other infrastructure projects, public safety, and to fight illegal dumping and blight, enacting a vacant property tax on parcels used less than 50 days per year, at rates ranging from $50.00/acre to $600.00/acre annually, for 20 years, based on zoning, raising about $6,200,000/year, with citizen oversight and hardship exemptions for seniors and low-income individuals, be adopted?
[ ] Yes
[ ] No
WHEREAS, the City Council wishes to include the above-referenced special tax measure as part of the Presidential Primary Election ballot on March 5, 2024; and WHEREAS, the calling of an election contest for Adelanto voters to consider the parcel tax measure was made in a manner consistent with Government Code sections 53971.5 and 53978 and Government Code section 50077, which provides in relevant part:
“Except as provided in section 7282 of the Revenue and Taxation Code, the legislative body of any city … may, following notice and public hearing, propose by ordinance or resolution the adoption of a special tax”; and
WHEREAS, the City Council approved this Ordinance for first reading at a public hearing conducted as part of its Regular Meeting of October 25, 2023, provided that the Ordinance may not take effect unless approved by Adelanto voters at the election of March 5, 2024; and
WHEREAS, this Ordinance, by its terms, may only take effect if the ballot measure requesting its approval is approved by a two-thirds (2/3) majority of Adelanto voters at the Election of March 5, 2024; and
WHEREAS, it is desirable that the City’s March 5, 2024, Municipal Election, inclusive of the above-subject ballot measure, be consolidated with any and all elections to be administered by the County Election Department of the County of San Bernardino on the same date and that the City have the same precincts, polling stations, and election officers within the City for such election; and
WHEREAS, the City shall compensate the County of San Bernardino for all necessary expenses incurred by the County Election Department in performing election 687
4 services for the City; and
WHEREAS, the City Council affirms its wish for the County Election Department for the County of San Bernardino to canvass the returns of the City’s March 5. 2024, Municipal election; and
WHEREAS, Elections Code sections 9280, et seq., sets forth the procedures and requirements for the preparation and submission of ballot arguments and corresponding rebuttal arguments in connection with City-initiated ballot measures.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
ADELANTO, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:
SECTION 1. The foregoing recitals are true and correct and incorporated into the body of this Resolution by this reference.
SECTION 2. Pursuant to the requirements of the laws of the State of California relating to charter cities and Elections Code sections 9222 and 12001, the City Council hereby orders and calls for a Municipal special Election to be held in the City of Adelanto, California on Tuesday, March 5, 2024, to be consolidated with the County-administered Presidential Primary Election to be held on the same day, for the added purpose of submitting to the qualified electors the above-defined Measure to approve the ordinance attached hereto as Exhibit “A” (the “Ordinance”). The proposed Measure will establish a parcel tax on real property within the City’s territorial boundaries in the manner described in the Ordinance and said tax shall be structured as a special tax whose proceeds may only be used to pay for solutions for parks and recreation, illegal dumping remediation, public safety, capital improvement projects, and specified programs as defined in the Ordinance.
SECTION 3. Pursuant to the requirements of Elections Code section 10403, it is respectfully requested that the Board of Supervisors of the County of San Bernardino consent and agree to the consolidation of the City’s Municipal Election on Tuesday, March 5, 2024, with the County-administered election of the same date.
SECTION 4. In connection with the County Election Department’s administration of the City’s March 5, 2024, Municipal Election, the City further requests that the County Election Department be authorized and directed to: (a) review and verify absentee voter applications and signatures; (b) conduct registered voter verifications (including signature verifications) associated with the processing of any proposed General Municipal Election ballot measure; (c) provide the City of Adelanto with the appropriate election precinct data, to the extent required; (d) make available to the City of Adelanto such election facilities, ballot casting equipment and assistance as may be necessary to conduct the election in compliance with state law and the Board of Supervisor’s approval; (e) canvass the election returns; (f) print and supply ballots for the lection; (g) mail the City of Adelanto’s sample ballots, including ballot measure question, arguments, rebuttals, and impartial analysis; and, (h) administer the City of Adelanto’s Election in all respects as if it were part and parcel of any other County Election Department’s administered election, implementing all 688
5 such legally required or customarily employed measures and practices as may be necessary to conduct the election in a timely and legally compliant manner. The City acknowledges that the consolidated election will be held and conducted in the manner prescribed in Elections Code Section 10418.
SECTION 5. The City of Adelanto shall reimburse the County Election Department for any costs associated with the administration of the City’s March 5, 2024, Municipal Election.
SECTION 6. The City hereby consents to have its Municipal Election on March 5, 2024, consolidated with any and all elections conducted on such date within the County.
SECTION 7. That the ballots to be used at the election shall be in form and content as required by law or as directed by the County Election Department to facilitate the consolidation of the City’s March 5, 20204, Election with the County-administered election of the same date.
SECTION 8. That the City Clerk is authorized, instructed and directed to procure and furnish any and all official ballots, notices, printed matter and all supplies, equipment and paraphernalia that may be necessary in order to properly and lawfully conduct the election.
SECTION 9. That the polls for the election shall be open at 7:00 a.m. of the day of the election and shall remain open continuously from that time until 8:00 p.m. of the same day when the polls shall be closed, pursuant to Elections Code section 10242, except as provided in section 14401 of the Elections Code of the State of California.
SECTION 10. The City Council authorizes the City Clerk to administer said election and all reasonable and actual election expenses shall be paid by the City upon presentation of a properly submitted bill.
SECTION 11. The ballot question for the Measure shall appear as follows:
Adelanto Vacant Property Tax
Shall the City of Adelanto’s measure, to fund parks/recreation programs, capital improvements/other infrastructure projects, public safety, and to fight illegal dumping and blight, enacting a vacant property tax on parcels used less than 50 days per year, at rates ranging from $50.00/acre to $600.00/acre annually, for 20 years, based on zoning, raising about $6,200,000/year, with citizen oversight and hardship exemptions for seniors and low-income individuals, be adopted?
[ ] Yes
[ ] No
SECTION 12. It is respectfully requested that the Board of Supervisors for the County of San Bernardino authorize and direct the County Election Department to canvass the returns of the City’s consolidated Municipal Election and that such election be held in 689
6 all respects as if it were part and parcel of the County-administered Election of the same date. It is also respectfully requested that the County Election Department give the abovesubject Measure the letter designation “A” such that the measure may be identified as Measure “A” on the ballot. If the letter designation “A” is no longer available, it is respectfully requested that the County Election Department give the Measure the following letter designations in order of preference, from most preferred to least preferred: “B” and “C.”
SECTION 13. As the tax established under the Measure is a special tax within the meaning of Proposition 218 whose proceeds may be used to fund parks and recreation programs and infrastructure, illegal dumping remediation, public safety, capital improvement projects, and discourage vacant properties, as provided in the Ordinance, the vote requirement for passage of the proposed Measure is a two-thirds (2/3) supermajority of votes at the City’s Election of March 5. 2024.
SECTION 14. It is respectfully requested that the Board of Supervisors authorize and direct the County Election Department to:
(A) Print and supply ballots for the General Municipal Election; and (B) Mail the ballot question, ballot arguments, rebuttals, and the City Attorney’s impartial analysis to the registered voters in the City of Adelanto.
SECTION 15. It is also respectfully requested that the Board of Supervisors issue instructions to the County Election Department to take any and all additional steps necessary for the holding of the consolidated election requested above.
SECTION 16. The City of Adelanto shall reimburse the County Election Department for any additional costs attributable to the inclusion of the Measure on the ballot of the Municipal Election to be consolidated with the County-administered Presidential Primary Election of March 5, 2024.
SECTION 17. The complete text of the proposed Ordinance submitted to the voters is attached as Exhibit “A” to this Resolution.
SECTION 18. The City Clerk is hereby authorized and directed to publish a Notice of Election and Measure to be Voted On at least one time not later than a week before the election in the VICTORVILLE DAILY PRESS, a newspaper of general circulation within the City of Adelanto, in accordance with the provisions of Elections Code section 12111.
The City Clerk is hereby authorized to such other notices as required by law.
SECTION 19. The ballots to be used at the election shall be in form and content as required by law.
SECTION 20. Direct Arguments in Support of and in Opposition to Measure. As authorized under Elections Code section 9282(b), the City Council reserves the right to file a written argument in favor of this Measure or authorize any member or members of the City Council to do the same. Pursuant to Election Code section 9282 (b), written arguments 690
7 for or against the Measure may also be submitted by any individual voter who is eligible to vote on the Measure; any bona fide association of citizens; any combination of voters and associations or such other persons or entities as may be authorized under Elections Code section 9282(b). The foregoing notwithstanding, if more than one set of arguments “in favor of” or “in opposition to” the Measure is timely submitted to the City Clerk, the City Clerk shall select only one argument for and one argument against in accordance with the selection priority set forth under Elections Code section 9287. That priority gives preference as follows: (a) the City Council or City Council-authorized members of the City Council; (b) the individual voter, or bona fide association of citizens, or combination of voters and associations, who are the bona fide association of citizens, or combination of voters and associations, who are the bona fide sponsors or proponents of the measure; (c) a bona fide association of citizens; then, (d) individual voters who are eligible to vote on the measure. Pursuant to Elections Code section 9283, a ballot argument will not be accepted unless accompanied by the printed name and signature or printed names and signatures of the author or authors submitting the argument, or if submitted on behalf of an organization, the name of the organization and the printed name and signature of at least one of its principal officers who is the author of the argument. Pursuant to Elections Code section 9283, no more than five (5) signatures shall appear with any argument submitted and if any argument is signed by more than five authors, the signatures of the first five shall be printed but not the signatures in excess of the first five. Ballot arguments in support of or in opposition to the Measure may not exceed 300 words in length.
Consistent with Elections Code sections 9286 and 9287, ballot arguments in favor of or in opposition to the Measure must be submitted to and received by the City Clerk by or before 5:00 p.m., on Wednesday November 8, 2023. Arguments that are received by the City Clerk after this deadline will not be accepted. The City Clerk’s Office is located at City of Adelanto City Hall, 11600 Air Expressway, Adelanto, California 92301.
SECTION 21. Rebuttals to Direct Arguments. Pursuant to Elections Code section 9285, when the City Clerk receives an argument to the Measure that will be printed in the ballot pamphlet, the elections official shall send a copy of the argument in favor of the Measure to the authors of any argument against the Measure and a copy of the argument against the Measure to the authors of the argument in favor of the Measure. To the extent permitted under Elections Code section 9285(a)(2), the author or a majority of the authors of an argument (either in favor of or in opposition to) may prepare and submit a rebuttal argument or may authorize in writing any other person or persons to prepare, submit or sign the rebuttal argument. No rebuttal argument may exceed 250 words in length.
Pursuant to Elections Code section 9285(a)(5), a rebuttal argument relating to the Measure may not be signed by more than five persons and shall be printed in the same manner as a direct argument and shall immediately follow the direct argument which it seeks to rebut.
Consistent with Elections Code sections 9285 and 9287, rebuttal arguments must be submitted to and received by the City Clerk by or before 5:00 p.m. on Monday, November 20, 2023. Rebuttals that are received by the City Clerk after this deadline will not be accepted. Again the City Clerk’s Office is located at City of Adelanto City Hall, 11600 Air Expressway, Adelanto, California 92301.
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8 SECTION 22. City Attorney’s Impartial Analysis. The City Council directs the City Clerk to transmit a copy of the Measure to the City Attorney. The City Attorney shall prepare an impartial analysis of the Measure, not to exceed 500 words in length, showing the effect of the Measure on existing law and the operation of the Measure. The impartial analysis shall be filed with the City Clerk by or before 5:00 p.m., on Wednesday, November 8, 2023.
SECTION 23. This Resolution shall take effect immediately upon its adoption by the City Council and the City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original resolutions.
SECTION 24. The City Clerk shall forward, without delay, a certified copy of this Resolution to the Board of Supervisors of the County of San Bernardino and County Election Department, which shall be assisting the City of Adelanto with the conduct of its Election.
PASSED, APPROVED and ADOPTED by the City Council of the City of Adelanto at its regular meeting on this 25th day of October, 2023.
_____________________________
Gabriel Reyes, Mayor
ATTEST:
___________________________________
Brenda Lopez, CMC, City Clerk
APPROVED AS TO FORM:
______________________
Todd Litfin, City Attorney
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9 STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO ) ss.
CITY OF ADELANTO )
I HEREBY CERTIFY that the foregoing Resolution No. 23-81 was duly adopted by the City Council of the City of Adelanto at a regular meeting thereof, held on the 25th day of October, 2023, by the following vote of Council:
AYES:
NOES:
ABSENT:
ABSTAIN:
___________________________________
Brenda Lopez, CMC, City Clerk
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10 Exhibit “A”
ORDINANCE NO. 647
AN ORDINANCE OF THE PEOPLE OF THE CITY OF ADELANTO
AS APPROVED BY THE CITY’S QUALIFIED ELECTORS AT THE
ELECTION HELD ON MARCH 5, 2024, TO ESTABLISH A
SPECIAL PARCEL TAX ON VACANT PROPERTIES
WHEREAS, the City of Adelanto (“City”) has been suffering from a lack of economic development since its incorporation on December 22, 1970; and WHEREAS, since May 28, 1985, the State of California Department of Transportation has enforced a Controlled Access Highway Agreement along State Highway Route 395 in the City, which has severely restricted economic development within the corridor; and
WHEREAS, roughly 74 percent of the City’s land area is vacant, undeveloped, and unoccupied by any legal use; and
WHEREAS, properties that are vacant or undeveloped deprive the community of the economic opportunity and housing that could be provided if those properties were put into use; and
WHEREAS, properties that are vacant also deprive the City of the revenue needed to provide public services by reducing the tax revenue that is generated when properties provide space for active uses or are developed for housing or businesses; and WHEREAS, members of the community have placed a clear priority on the need for parks and recreation programs; blight and illegal dumping remediation; public safety services, including police, firefighters, and paramedics; and capital projects to improve City infrastructure, including the construction and maintenance of roads, construction and maintenance of sidewalks, and storm water runoff and drainage; and WHEREAS, the lack of economic development within the City has led to an insufficient revenue base that cannot fund the services that the members of the community have requested; and
WHEREAS, despite significant cost saving measures the City Council has employed in recent years to address the ongoing budget crisis, including the consolidation of job duties, significant reductions in staffing levels, and the sales of assets and deferment of equipment purchases, current revenue forecasts indicate that the City’s General Fund will struggle to maintain basic service levels in future fiscal years; and WHEREAS, in order to address these issues as soon as possible, the City Council desires to submit to the qualified electors of the City a proposed ordinance to adopt a special tax on vacant properties to support services important to members of the community; and 694
11 WHEREAS, such a special tax will also discourage property owners from keeping properties vacant; and
WHEREAS, the proposed tax will have a hardship exemption process so that people with financial difficulty or other valid reason the property had to be vacant can have the tax waived, and non-profits are exempt; and
WHEREAS, a citizen oversight committee will be established to provide transparency regarding the special tax by recommending the allocation of the proposed tax revenue to the City Council and monitoring the use of the proceeds of the proposed tax to ensure it is meeting the needs of the community; and
WHEREAS, a non-ad valorem tax on parcels of real property may be approved by the voters as a special tax under California Constitution, Article XIIIA, Section 4 and California Constitution, Article XIIID, Section 3(a)(2); and WHEREAS, Government Code section 37100.5 provides in relevant part: “Except as provided in section 7282 of the Revenue and Taxation Code, the legislative body of any city may levy any tax which may be levied by any charter city, subject to the voters’ approval pursuant to Article XIIIA of the Constitution of California”; and WHEREAS, Government Code section 50075 further provides: “It is the intent of the Legislature to provide all cities, counties, and districts with the authority to impose special taxes pursuant to the provisions of Article XIIIA of the California Constitution”; and
WHEREAS, at its Meeting of October 25, 2023, the City Council of the City of Adelanto (“City Council”) approved Resolution No. 23-81, which (i) called for and gave notice of the placement of a parcel tax measure as set forth in this Ordinance onto the March 5, 2024, ballot by approval of Resolution No. 23-81; (ii) requested consolidation of such election with the County of San Bernardino; and (iii) requested that the County of San Bernardino provide specific election administration services; and WHEREAS, the ballot measure question seeking approval of this Ordinance appeared as follows:
Adelanto Vacant Property Tax
Shall the City of Adelanto’s measure, to fund parks/recreation programs, capital improvements/other infrastructure projects, public safety, and to fight illegal dumping and blight, enacting a vacant property tax on parcels used less than 50 days per year, at rates ranging from $50.00/acre to $600.00/acre annually, for 20 years, based on zoning, raising about $6,200,000/year, with citizen oversight and hardship exemptions for seniors and low-income individuals, be adopted?
[ ] Yes
[ ] No
695
12 WHEREAS, the calling of an election contest for Adelanto voters to consider the parcel tax measure was made in a manner consistent with Government Code sections 53971.5 and 53978 and Government Code section 50077, which provides in relevant part:
“Except as provided in section 7282 of the Revenue and Taxation Code, the legislative body of any city … may, following notice and public hearing, propose by ordinance or resolution the adoption of a special tax”; and
WHEREAS, the City Council approved this Ordinance for first reading at a public hearing conducted as part of its Regular Meeting of October 25, 2023, provided that the Ordinance may not take effect unless approved by Adelanto voters at the Election of March 5, 2024; and
WHEREAS, this Ordinance, by its terms, may only take effect if the ballot measure requesting its approval is approved by a two-thirds (2/3) majority of Adelanto voters at the Election of March 5, 2024; and
WHEREAS, at the Election of Tuesday, March 5, 2024, Adelanto voters approved the measure requesting approval of this Ordinance by a margin of _____% voting in favor (“Yes”) and ____% voting in opposition (“No”); and
WHEREAS, the election results were certified at the City Council’s meeting of ______________________, 2024, by way of Resolution No. __-__.
THE PEOPLE OF THE CITY OF ADELANTO, CALIFORNIA DO
HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Title.
This Ordinance may be referred to as the “Adelanto Vacant Property Tax.” SECTION 2. Purpose.
The taxes imposed under this Ordinance are solely for the purpose of raising revenue necessary to support and fund services for parks and recreation, illegal dumping remediation, public safety, capital improvement projects, and the related programs, described below. Because the proceeds of the parcel tax will be deposited into a special fund restricted for the services and programs specified in this Ordinance, the tax is a special tax.
SECTION 3. Code Amendment.
A new Chapter 3.70 of Title 3 (Revenue and Finance) is hereby added to the Adelanto Municipal Code to read as follows:
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13 Chapter 3.70 - ADELANTO VACANT PROPERTY TAX.
Sections:
3.70.010 - Definitions.
“Active use” means the occupancy of a legal residential unit, the performance of a business function or operation, or the presence of a functional structure, agricultural site, or landscaping and parking which is being maintained or operated and serves an adjacent structure.
“City” means the City of Adelanto, California, a municipal corporation and charter city. “City Council” means the Council of the City of Adelanto. “Commission” means the Adelanto Vacant Property Tax Advisory Commission. “Consumer Price Index” means the Consumer Price Index published by the U.S. Bureau of Labor Statistic for “All Urban Consumers” in the Riverside-San Bernardino-Ontario Area. In the event this index ceases to be published, the Consumer Price Index shall be another index as determined by the City that is reasonably comparable to the Consumer Price Index for the Riverside-San Bernardino-Ontario Area. “County” means the County of San Bernardino, California. “Developed parcel” means all parcels, regardless of zoning or other land use designation, upon which permanent improvements have been constructed or placed. “Finance Director” means the Director of Finance of the City of Adelanto. “Owner” means the owner or owners of the real property located within the City of Adelanto.
“Parcel” means a legal parcel of real property in the City of Adelanto as shown on the most current official assessment roll of the San Bernardino County Assessor. “Residential unit” means a building or structure, or portion thereof, designed for or occupied exclusively by one household, including unrelated persons who live together and maintain a common household.
“Tax” means the special tax authorized by this Ordinance. “Undeveloped parcel” means all parcels, regardless of zoning or other land use designation, upon which no permanent improvements have been constructed or placed. “Vacant” is as defined by section 3.70.020 of this chapter. 697
14 3.70.020 - Determination of Vacancy
A. For the purposes of this ordinance, a parcel of real property shall be deemed “vacant” and subject to the tax imposed by Section 3.70.030 below if the parcel is not otherwise wholly exempt from ad valorem tax by state law, and is any of the following:
1. A developed parcel of land that is in active use less than 50 days during a calendar year.
2. An undeveloped parcel of land that is in Active use less than 50 days during a calendar year.
3. A condominium, duplex, or townhouse residential unit under separate ownership that is in Active use less than 50 days during a calendar year. a. Except as provided in subdivision 4 below, for parcels with multiple units, whether residential or non-residential, the parcel is not vacant if any unit on it is not vacant. A condominium, duplex, or townhouse unit under separate ownership is treated as a separate parcel for the purposes of this Chapter, and if it is vacant, is subject to the tax regardless of the status of any other unit on the same lot or that is part of the same development.
4. A parcel of land where ground floor commercial activities are allowed by the applicable zoning (with or without a use permit), or are a legal nonconforming use, and all of the ground floor space that could be lawfully occupied by commercial activities is in Active use less than fifty 50 days in a calendar year.
a. Parcels determined to be vacant under this section shall be subject to the tax regardless of whether any other portion of the structures on the parcel are occupied.
B. The City Council shall establish, by ordinance, a method for determining and identifying the use and vacancy status of each parcel of real property in the City.
3.70.030 - Imposition of Special Parcel Tax on Vacant Property A. A special tax in the amounts set forth below is hereby imposed on every vacant parcel of real property within the City, other than those exempted in Section
3.70.030 K. of this chapter.
B. The tax constitutes a debt owed by the Owner of each parcel to the City. 698
15 C. Unless the City Council selects another method for collection of the tax, the County shall levy and collect the tax on each parcel of real property in the City for which the Owner receives a separate ad valorem property tax bill, at the same time and manner, and subject to the same penalties and procedures as ad valorem property taxes collected by the County except as otherwise set forth in this Ordinance.
D. If the City Council selects collection of the tax by the County, the tax shall be imposed on the ad valorem property tax bill for the fiscal year that begins July 1 following the end of the calendar year in which the parcel was vacant. The special tax shall first be imposed and collected no sooner than the ad valorem property tax bill for fiscal year 2024-2025 for parcels that were vacant in the 2023 calendar year.
E. Tax Rates.
1. The maximum tax rates for each property type shall be as set forth in the table below. The City shall be responsible for assigning a tax rate for each parcel.
Zoning District Zoning Description Annual Tax Rate
ADD Airport Development District $200 per acre per parcel AP Airport Park $200 per acre per parcel
BP Business Park $600 per acre per parcel
C Commercial $600 per acre per parcel
DL-2.5 Desert Living 2.5 $50 per acre per parcel
DL-5 Desert Living 5 $50 per acre per parcel
DL-9 Desert Living 9 $50 per acre per parcel
LM Light Manufacturing $600 per acre per parcel
MI Manufacturing/Industrial $600 per acre per parcel
MU Mixed Use $600 per acre per parcel
OS Open Space $50 per acre per parcel
PU Public Utilities $0 per acre per parcel
R1 Single Family Residential $300 per acre per parcel
R3-30 High Density Residential $300 per acre per parcel R3-8 Medium Density Residential $400 per acre per parcel R-M12 Medium Density Residential $400 per acre per parcel R-S1 Single Family Residential $300 per acre per parcel R-S5 Single Family Residential $300 per acre per parcel U Uncategorized or unassigned $200 per acre per parcel
For purposes of calculating the maximum tax rates set forth herein, parcels that are a fraction of an acre shall be rounded up to the nearest whole acre. 699
16 F. Real property otherwise wholly exempt from ad valorem tax by state law shall also be exempted from the tax imposed by this Ordinance.
G. City Council Discretion to Temporarily Reduce Maximum Authorized Tax Rates and Authorize Additional Exemptions.
1. The City Council, in its sole discretion, may, by resolution, temporarily decrease the annual tax rate imposed less than the maximum amount authorized in Section 3.70.030, subsection E. Following any such temporary decrease in the annual tax rate, the City Council may, by resolution, restore the annual tax rate back up to the maximum rate authorized in Section 3.70.030, subsection E, or to any other amount less than the maximum rate authorized in Section 3.70.030, subsection E, without obtaining voter approval.
2. The City Council may, in its discretion, adopt and/or repeal additional categories of exemption, provided that such exemptions are approved or repealed by Ordinance. The foregoing notwithstanding, in no event may the City Council repeal exemptions expressly approved by the voters as part of this Ordinance.
H. Automatic Cost of Living Adjustments to Tax Rates.
The maximum special tax rates specified in subsection E shall be automatically adjusted by an increment not to exceed the annual percentage change in the March Consumer Price Index (CPI). Regardless of whether the special tax rate has been reduced to an amount below the maximum special tax rate allowed in Section 3.70.030, subsection E, the maximum tax rate applicable for the following year shall be the maximum special tax rate that could have otherwise been levied, not to exceed CPI. Even if the City Council elects to impose a lesser special tax in any fiscal year, in any later fiscal year the City Council may still elect to impose up to the full authorized maximum special tax rate.
I. For properties wholly within San Bernardino County and divided by Tax Rate Area lines into multiple parcels, the property shall be taxed as a single parcel at the rates set forth above.
J. Imposition of Tax by Zones.
The City Council may, by ordinance, establish zones or areas within the City and may restrict the levy of the tax to properties within the zones or areas established.
K. Exemptions.
1. For purposes of the exemptions set forth in this section, the term “Owner” shall be defined as a natural person. “Owner” shall not include a business entity, such as a limited liability company, corporation, partnership, or 700
17 other business entity, trust, or any other private organization which may be considered a “person” by operation of law.
2. The following may be exempt from the tax imposed by this Ordinance:
a. An Owner who qualifies as very low-income, as the term “very low income” is defined by the United States Department of Housing and Urban Development.
b. An Owner who can demonstrate that exceptional specific circumstances prevent the use or development of the property. By way of example only and without limiting the generality of the foregoing, exceptional specific circumstances that prevent the use or development of property include property damage by a recent natural disaster, an undeveloped parcel adjoining a developed residential parcel and used by the occupants as part of the yard, and property with physical conditions that prevent development. c. An Owner of a property that is under active construction. To qualify for this exemption, an Owner must call for inspections of the construction with sufficient frequency to keep the building permit or permits active.
d. An Owner of property for which an active building permit application is being processed by the City.
e. An Owner of a parcel included in a substantially complete application for planning approvals that has not yet received approval. An Owner of a parcel for which a project with development entitlements have been approved but needing time for completion may apply for and receive an administrative two-year exemption.
f. An Owner of property for which at least 60 percent of the accessible dry land is actively used for a community garden(s), or Agriculture as defined in Section 17.200.020 and developed in accordance with the applicable standards set forth in Title 17 of this Code.
g. An Owner (1) who is 65 years of age or older and (2) who qualifies as “low income,” as the term “low income” is defined by the United States Department of Housing and Urban Development. h. An Owner who, regardless of age, (i) receives Supplemental Security Income for a disability or (ii) Social Security Disability Insurance benefits, regardless of age and whose yearly income 701
18 does not exceed 250 percent of the 2012 federal poverty guidelines issued by the United States Department of Health and Human Services.
i. An Owner that is a non-profit organization or entity owned or controlled by a non-profit organization.
3. The City Council, in its discretion, shall be authorized to establish procedures, criteria and guidelines for Owners to apply for and be granted relief under the exemptions referenced above, provided such procedures, criteria and/or guidelines are not expressly in conflict with the voterapproved provisions of this Ordinance. Such procedures, criteria and guidelines may be established by ordinance or resolution of the City Council. The City Council, in its discretion, also reserves the right to establish such other exemptions to the tax imposed by this Ordinance, and authorize the methods of collection of the said, as it determines to be appropriate.
4. Subject to City Council oversight and direction, the City Manager’s designee, (which if not otherwise designated shall be the Finance Director), shall administer and enforce all such procedures, criteria and guidelines as may be established by the City Council. Owners who claim an exemption may, among other procedures, criteria and guidelines, be required to submit information annually to substantiate their continuing qualification for the exemption.
3.70.040 - Vacant Property Tax Fund
The “Vacant Property Tax Fund” (“Fund”) is hereby created as a special revenue fund.
Proceeds from the Adelanto Vacant Property Tax, including penalties and interest earned on such proceeds, shall be deposited into the Fund and used only for the purposes listed in Section 3.70.050 of this chapter.
3.70.050 - Use of Vacant Property Tax Act Revenue
A. Monies deposited in the Vacant Property Tax Fund shall be used solely for those purposes identified in this Section.
B. Tax funds may be used to fund programs and services for parks and recreation programs for the community, including but not limited to, Senior citizen programs, after school programs, capital improvements of City parks and public facilities, and park and facility maintenance; public safety services including law enforcement and fire protection; capital projects to improve City infrastructure, including the construction and maintenance of roads, construction and maintenance of sidewalks, and storm water runoff and drainage; code 702
19 enforcement and cleanup of blighted vacant properties, other blight elimination, and remedying illegal dumping.
C. In the first fiscal year 2024-2025, ten percent of the revenue deposited into the Vacant Property Tax Fund shall be used to pay for parks and recreation infrastructure, maintenance, programs and services. In all future fiscal years, no less than 5 percent but no more than 20 percent of the revenue deposited into the Vacant Property Tax Fund shall be used for this purpose.
D. In the first fiscal year 2024-2025, five percent of the revenue deposited into the Vacant Property Tax Fund shall be used to pay for code enforcement and cleanup of blighted vacant properties, other blight elimination, and remedying illegal dumping, including legal action to address any of the foregoing as necessary. In all future fiscal years, no less than 2 percent but no more than 15 percent of the revenue deposited into the Vacant Property Tax Fund shall be used for this purpose.
E. In the first fiscal year 2024-2025, sixty-five percent of the revenue deposited into the Vacant Property Tax Fund shall be used to pay for public safety services including law enforcement and fire protection. In all future fiscal years, no less than 50 percent but no more than 80 percent of the revenue deposited into the Vacant Property Tax Fund shall be used for this purpose.
F. In the first fiscal year 2024-2025, twenty percent of the revenue deposited into the Vacant Property Tax Fund shall be used to pay for capital improvements and other infrastructure projects, including the construction and maintenance of roads, construction and maintenance of sidewalks, and storm water runoff and drainage.
In all future fiscal years, no less than 10 percent but no more than 30 percent of the revenue deposited into the Vacant Property Tax Fund shall be used for this purpose.
G. The City Council may by ordinance modify the percentages in subdivisions C, D, E, and F of this Section.
H. Monies in the Vacant Property Tax Fund may be used to pay the costs of audits of the use of monies in the Fund.
I. Monies in the Vacant Property Tax Fund may be used to pay for the City’s costs of the election required to obtain voter approval of the tax authorized by this Ordinance, including City Attorney costs to prepare this Ordinance and related documents.
J. Monies in the Vacant Property Tax Fund may be used to pay for the costs of administering the special tax, regardless of how or by what entity those administrative services are provided. No more than 15 percent of the revenue deposited into the Vacant Property Tax Fund in any single year may be used to 703
20 pay for such administrative costs. Notwithstanding the foregoing, the City shall be reimbursed for its actual costs of establishing the program for collecting the tax, which costs shall be confirmed by the Finance Director. Administrative costs include, but are not limited to:
1. The costs to the City of determining and identifying the use and vacancy status of every parcel in the City;
2. The costs to the City associated with monitoring and enforcing compliance with this Ordinance. Authorized costs include, but are not limited to, any expenses, including attorneys’ fees, associated with any proceedings needed to enforce the requirements of this Ordinance;
3. The costs to the City associated with developing ordinances and regulations to implement this Ordinance;
4. The costs to the City associated with the production of reports and recommendations as set forth in Section 3.70.060 of this Ordinance; and
5. Reimbursement to the County for the costs it incurs in collecting the tax.
K. If this Ordinance or the use of tax funds is legally challenged, tax funds may be used to reimburse the City for its costs of legal defense, including attorneys’ fees and other expenses.
3.70.060 - Vacant Property Tax Advisory Commission
A. The Adelanto Vacant Property Tax Advisory Commission is hereby established for citizen oversight of the Vacant Property Tax.
B. The Commission shall meet at least four (4) times per fiscal year.
C. The Commission, as established by this Section, shall advise the City Council regarding use of the revenue generated by the Tax as authorized in Section
3.70.050.
1. The Commission shall review relevant financial and operational reports related to the expenditure of the Vacant Property Tax Fund. The Commission shall publish an annual report regarding how and to what extent the City has implemented this Ordinance. Additionally, the Commission may publish reports regarding the following: (1) recommendations on how to allocate the tax funds in accordance with the requirements of this Ordinance; (2) information, if available, concerning the impact of this Ordinance on illegal dumping and related issues in the City; and (3) any additional information that the Commission deems 704
21 appropriate. The City Council may assign other duties to the Commission as provided for by Ordinance.
2. Within 30 days of receipt of a Commission report, the City Manager or designee shall cause the report to be published on the City’s Internet website and to be transmitted to the City Council. The Report and Recommendations shall be included in the published packet and provided to the City Council as part of the Agenda at the meeting(s) at which the Council allocates the Vacant Property Tax funding. The foregoing notwithstanding, the failure of the Commission to submit its annual report in any given year shall not operate to prevent the City Council from undertaking the allocation of the Vacant Property Tax funding.
D. The Commission shall consist of five (5) members who are all residents of the City. City Councilmembers shall make recommendations for members to the Mayor. Members of the Commission shall be appointed by the Mayor and confirmed by the City Council in accordance with City Charter Article XI Section 1103. Members of the Commission shall receive no salary for serving.
E. Members shall serve three (3) year terms, as provided for in this subsection. No member shall serve more than two (2) consecutive three (3) year terms. Of the initial members of the Commission, two (2) appointments shall be for one-year terms, and three (3) appointments shall be for three- year terms. Thereafter, all terms shall be for three (3) years. All terms of members shall begin as of the date that three (3) members have been appointed, which is when the Commission may begin its work. All future terms shall begin and end on that date. A quorum of the Commission shall be a majority of appointed members, but shall never be fewer than three (3) members. The foregoing notwithstanding, all members of the Commission shall serve at the pleasure of the City Council and may be removed and replaced by the City Council at any time without cause upon the issuance of prior written notice to the Commissioner. Absence from three (3) consecutive regular meetings, or four (4) non-consecutive regular meetings during a single fiscal year, may constitute cause for removal from the Commission, in accordance with City Charter Article XI Section 1103.
F. The City Manager or designee shall provide clerical assistance and administrative support and technical assistance to the Commission.
3.70.070 - Accountability
A. In accordance with the requirements of California Government Code Sections 50075.1 and 50075.3, the following accountability measures, among others, shall apply to the tax:
1. A separate, special account, referred to as the Vacant Property Tax Fund, shall be created, into which the proceeds of the tax must be deposited. 705
22 2. The specific purposes of the tax are for the funding of programs and services for parks and recreation programs for the community, including Senior citizen programs, after school programs, capital improvements of City parks and public facilities, and park and facility maintenance; public safety services including law enforcement and fire protection; capital projects to improve City infrastructure, including the construction and maintenance of roads, construction and maintenance of sidewalks, and storm water runoff and drainage; code enforcement and cleanup of blighted vacant properties, other blight elimination, and remedying illegal dumping; and for the other purposes set forth in Section 3.70.050 of this Ordinance. The proceeds of the tax shall be applied only to these specific purposes.
3. The Finance Director shall perform regular audits to ensure accountability and proper disbursement of all revenue collected by the City from the tax imposed by this Ordinance, in accordance with the objectives stated herein and in compliance with provisions of California law, and shall provide the City Council with the annual report required by 50075.3 of the Government Code.
B. During the term of the tax, the City of Adelanto shall not reduce the amount of unrestricted General Fund expenditures used for code enforcement and cleanup of blighted vacant properties, other blight elimination, and illegal dumping remediation below the amount expended in the 2023-2024 fiscal year. The Finance Director’s reports on the uses of the Vacant Property Tax Fund shall include the percentage that was spent on blight elimination and illegal dumping remediation and shall also evaluate whether the City has satisfied the requirement to maintain the set level of unrestricted General Fund expenditures. If the Finance Director finds that in any fiscal year the amount of unrestricted General Fund expenditures on blight elimination and illegal dumping remediation is less than the total amount expended in fiscal year 2023-2024, the City of Adelanto shall increase unrestricted General Fund expenditures for those uses within the following two fiscal years so that total unrestricted General Fund expenditures on those uses over three fiscal years is equal to three times the fiscal year 2023-2024 expenditures.
3.70.080 – Increase Appropriations Limit.
Pursuant to California Constitution Article XIIIB, the appropriation limit for the City of Adelanto is hereby increased by $6,200,000 for each of the four fiscal years from 2024- 25 through 2027-28.
SECTION 4. Severability.
706
23 If any section, subsection, part, clause, sentence or phrase of this Ordinance or the application thereof is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, the validity of the remaining portions of this Ordinance, the application thereof and the tax imposed shall not be affected thereby, but shall remain in full force and effect, it being the intent of the People to adopt each and every section, subsection, part, clause, or phrase regardless of whether any other section, subsection, part, clause, or phrase or the application thereof is held to be invalid or unconstitutional.
SECTION 5. California Environmental Quality Act Requirements.
The City Council hereby determines that this Ordinance is not in-and-of-itself a “project” pursuant to the California Environmental Quality Act, Public Resources Code section 21000 et seq., including without limitation CEQA Guidelines 15378(b)(4) and 15061(b)(3), as it can be seen with certainty that there is no possibility that the adoption of the ordinance itself may have a significant effect on the environment. To the extent that vacant property tax revenues generated by the Ordinance may in the future be used to fund the construction of capital improvements, the Ordinance may assist in the financing of future “projects” that will be subject to environmental review pursuant to CEQA at the “earliest feasible time” prior to “approval” consistent with CEQA Guidelines Sections 15004 and 15352.
SECTION 6. Approval; Effective Date.
This Ordinance shall become effective immediately upon the following conditions: (i) approval of the ballot measure seeking approval of this Ordinance by 2/3 majority of the voters casting votes at the Election of the City of Adelanto to be held March 5, 2024; (ii) certification of all votes cast by the City Council confirming that a 2/3 majority of voters have approved the ballot measure approving this Ordinance; and (iii) implementation of this Ordinance by City Council upon certification of the election results.
SECTION 7. Council Amendments.
This Ordinance may only be amended by a vote of the people if the amendment would result in the special tax being imposed, extended, or increased in a manner not authorized by this Ordinance as originally approved by the voters. The City Council of the City of Adelanto is hereby authorized to amend Chapter 3.70 of the Adelanto Municipal Code as adopted by this Ordinance in any manner that does not increase the tax rates, or otherwise constitute a tax increase for which voter approval is required by Article XIII C of the California Constitution.
SECTION 8. Expiration of Tax.
This Ordinance shall expire 20 years after it is first levied. By way of example only and without limiting the generality of the foregoing, if the tax were first levied in the 2024-25 tax year, the 2044-45 tax year would be the last year in which it may be levied. The 707
24 voters of the City of Adelanto may amend the term of the tax at any time prior to its expiration.
PASSED, APPROVED and ADOPTED this day of , .
_____________________________
Gabriel Reyes, Mayor
ATTEST:
___________________________________
Brenda Lopez, CMC, City Clerk
APPROVED AS TO FORM:
______________________
Todd Litfin, City Attorney
708
25 STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO ) ss.
CITY OF ADELANTO )
I HEREBY CERTIFY that the foregoing Ordinance No. 647 was duly adopted by the City Council of the City of Adelanto at a regular meeting thereof, held on the day of , 2023, by the following vote of Council:
AYES:
NOES:
ABSENT:
ABSTAIN:
___________________________________
Brenda Lopez, CMC, City Clerk
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