APPLE VALLEY TOWN COUNCIL
AGENDA
Tuesday, June 27, 2023, 6:30 p.m.
Council Chamber
PLEASE SILENCE CELL PHONES UPON ENTERING THE CHAMBER
THIS MEETING IS BROADCAST LIVE AND VIEWABLE ON FRONTIER CHANNEL 29 OR CHARTER SPECTRUM CHANNEL 186 AND LIVE STREAMED ONLINE AT HTTPS://APPLEVALLEY.TV. EFFECTIVE FEBRUARY 28, 2023, THE STATE OF CALIFORNIA, COVID-19 STATE OF EMERGENCY HAS EXPIRED. THE TOWN OF APPLE VALLEY WILL
CONTINUE TO SUPPORT PUBLIC COMMENTS FOR INDIVIDUALS NOT PHYSICALLY PRESENT AND STILL WISHING TO MAKE PUBLIC COMMENTS. PLEASE EMAIL YOUR COMMENT TO [email protected]. COMMENTS SHOULD BE SUBMITTED BY 12:00 P.M.
ON THE MEETING DATE TO BE INCLUDED IN THE RECORD.
The meeting will occur in the Council Chamber located at 14955 Dale Evans Parkway in Apple Valley, California.
This is an agenda for the scheduled meeting of the Town of Apple Valley.
This agenda contains a brief description of each item of business to be considered at today’s meeting. In accordance with the Brown Act, this meeting agenda is posted at least 72 hours prior to the regularly scheduled meeting. The agenda, its supporting documents and all writings received by the Town Council related to these items are public records and available for review during regular business hours in the Town Clerk’s office in the Town Council Chamber. The agenda and its supporting documents, along with live and archived video of the meeting, can be viewed online at http://www.applevalley.org. However, the online agenda may not include all available supporting documents or the most current version of documents.
Materials related to an item on this agenda submitted to the Council after distribution of the agenda packet are available for public inspection in the Town Clerk’s Office at 14955 Dale Evans Parkway, Apple Valley, CA during normal business hours. Such documents are also available on the Town of Apple Valley website at www.applevalley.org subject to staff’s ability to post the documents before the meeting.
Items listed on the Consent Calendar are expected to be routine and non-controversial and, unless the Town Council directs that an item be held for further discussion, the entire Consent Calendar will be acted upon as the first item of business. If the Town Council directs that an item listed on the Consent Calendar be held for further discussion, the item will be addressed immediately after approval of the Consent Calendar.
In accordance with the Rules of Procedure, members of the public may address the Town Council on any item on the agenda and on any matter that is within the Town Council’s jurisdiction. To address the Town Council regarding an item, complete and submit the yellow card entitled Request to Speak.
Please indicate on the card whether you are speaking under Public Comments or on an item that is listed on the agenda and please list the item number.
No action or discussion shall be undertaken on any item not appearing on the posted agenda, except that members of the Town Council/Redevelopment Agency or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights under Section 54954.3.
When called, approach the podium and if desired, please state your name before giving your presentation. Speakers may address the Town Council for up to three (3) minutes. Speakers are to address the Town Council as a whole through the Presiding Officer. Comments to individual Council Members and/or staff are not permitted.
Individuals, who demonstrate disruptive conduct during Town Council meetings that prevent the Town Council from conducting its meeting in an orderly manner, are guilty of a misdemeanor as stated in PC403, disrupting a public meeting and are subject to removal from the chamber or arrest.
The Town of Apple Valley recognizes its obligation to provide equal access to those individuals with disabilities. Please contact the Town Clerk’s Office at (760) 240-7000 two working days prior to the scheduled meeting for any requests for reasonable accommodations.
Pages
1. Call to Order
2. Opening Ceremonies
2.1 Invocation
Pastor Fergeson - Calvary Chapel Apple Valley.
2.2 Pledge of Allegiance
2.3 Presentations
Mark Creffield, President of the Greater High Desert Chamber - presentation of graduation certificates to Town Staff for Completion of the GHDCC leadership Course.
3. Public Comments
4. Councilmember Committee/Commission/Community Participation 6 Councilmembers to make brief reports on their participation on committees, boards, and commissions on the Town’s behalf since the last meeting.
Councilmembers may also make brief reports on their community participation.
No formal action will be taken.
5. Town Council Announcements
5.1 Suggested items for next Agenda
5.2 Time, Date & Place for Next Town Council Regular or Special Meeting A. Regular meeting - July 11, 2023 - Council Chambers Regular Session at 6:30p.m.
6. Town Council Consent Agenda
Recommended Motion:
To approve the Consent Calendar items numbered 6.1-6.9 as recommended.
6.1 APPROVAL OF MINUTES 8
That the Town Council approve the subject minutes as part of the consent agenda.
6.2 ACCEPTANCE OF WORK FOR THE CIVIC CENTER PARK POOL
DECK REPLACEMENT.
17 Accept the work completed on the Civic Center Park Pool Deck Replacement Project for a total contract cost of $151,324.51.
A.
Direct the Town Clerk to file the Notice of Completion for the contract work.
B.
Direct the Finance Director to release the retained funds 30 days after the Notice of Completion has been filed, provided no claims are filed against the contractor.
C.
6.3 AWARD JAMES WOODY RESTROOM REPLACEMENT
REPLACEMENT
21 Award a Construction Contract to Hitt Construction Company, Inc. for the James Woody Restroom Replacement project subject to “Approval as to Form” by the Town Attorney and “Approval as to Content” by the Town Manager
6.4 AWARD OF CONTRACT FOR DESIGN OF CAPTAIN JOSEPH
MCCONNELL JR., USAF PARK
70 Award a Professional Services Agreement to Verde Design, Inc. for the Captain Joseph McConnell Jr, USAF Park Project subject to “Approval as to Form” by the Town Attorney and “Approval as to Content” by the Town Manager.
6.5 ACCEPT THE FINAL MAP FOR PARCEL 101
It is recommended that the Town Council accept the Final Map for Parcel Map No. 20369.
6.6 ACCEPT THE FINAL MAP FOR PARCEL MAP NO. 20571 APPLICANT:
DOUG VANCE
110
It is redcommended that the Town Council accept the Final Map for Parcel Map No. 20571
6.7 FY 2023-24 STATE ADVOCACY SERVICES 119
That the Town Council approve a one-year extension to the Professional Services Agreement with Niemela Pappas & Associates for State Legislative Advocacy Services for Fiscal Year 2023-24.
6.8 RESOLUTION NO. 2023-21, A RESOLUTION OF THE TOWN
COUNCIL OF THE TOWN OF APPLE VALLEY, CALIFORNIA,
APPROVING THE LEVY AND COLLECTION OF ASSESSMENTS FOR
FISCAL YEAR 2023-24 WITHIN THE APPLE VALLEY VILLAGE
PROPERTY AND BUSINESS IMPROVEMENT DISTRICT (PBID)
122
RESOLUTION NO. 2023-21, A RESOLUTION OF THE TOWN
COUNCIL OF THE TOWN OF APPLE VALLEY, CALIFORNIA,
APPROVING THE LEVY AND COLLECTION OF ASSESSMENTS FOR
FISCAL YEAR 2023-24 WITHIN THE APPLE VALLEY VILLAGE
PROPERTY AND BUSINESS IMPROVEMENT DISTRICT (PBID)
6.9 Approve execution of Real Property Donation Agreement with HS Cluster LLC and execution of Certificate of Acceptance for receiving donation of approximately 4.27 acres of certain real property located at 22311 Bear Valley Road, Building A, Apple Valley
130
Approve execution of Real Property Donation Agreement with HS Cluster LLC and execution of Certificate of Acceptance for receiving donation of approximately 4.27 acres of certain real property located at 22311 Bear Valley Road, Building A, Apple Valley, CA 92308 (Assessor's Parcel Number 308-005-133).
7. Public Hearings
7.1 ADOPTION OF FISCAL YEAR 2023-2024 APPRORIATIONS LIMIT 147 Adopt Resolution No.2023-22 of the Town Council of the Town of Apple Valley, California, establishing the Fiscal Year 2023-2024 Appropriations Limit for the Town at $49,887,624 by using the Town’s population growth for the population adjustment and the California per capita income growth for the inflationary adjustment.
7.2 REVIEW OF THE FISCAL YEAR 2023-2024 STATMENT OF
INVESTMENT POLICY
152
Adopt Resolution No. 2023-23 approving the Statement of Investment Policy for Fiscal Year 2023-2024 and delegating the investment activities to the Town Treasurer.
7.3 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF APPLE
VALLEY, CALIFORNIA, APPROVING BUDGET APPROPRIATIONS
AND ADOPTING THE OPERATING AND CAPITAL IMPROVEMENT
BUDGET FOR ALL FUNDS FOR FISCAL YEAR 2023-202
195
Adopt Resolution No. 2023-24 of the Town Council of the Town of Apple Valley, California, approving a budget appropriation and adopting the budget, including the operating and capital improvement budget for all funds for Fiscal Year 2023-2024.
7.4 FIRST READING OF ORDINANCE 566 – AN ORDINANCE ALLOWING
ELECTRONIC FILING OF FAIR POLITICAL PRACTICES COMMISSION
FILINGS IN THE JURISDICTION OF THE TOWN OF APPLE VALLEY 204
A. Find the proposed adoption of Ordinance No. 566 is not subject to and is exempt from CEQA based upon a finding that, under section 15061(b)(3) of the CEQA Guidelines, it can be seen with certainty that there is no possibility that the proposed Ordinance may have a significant effect on the environment.
B. Move to waive the reading of Ordinance No. 566 in its entirety and read by title only.
C. Move to introduce Ordinance No. 566 adding a new Chapter 2.05 to the Apple Valley Municipal Code regarding electronic filing of campaign finance disclosure statements.
8. Business of the Council
9. Reports, Requests and Communications
10. Town Manager’s Comments & Legislative Update
11. Closed Session
Recommended Motion:
To Adjourn the regular meeting to move into Closed Session at TIME to discuss the following:
12. Adjournment
Recommended Motion:
To adjourn the meeting of the Apple Valley Town Council at TIME.
TOWN OF APPLE VALLEY
TOWN COUNCIL SERVING ON BOARDS, COMMITTEES & COMMISSIONS
CITIZEN ADVISORY COMMITTEES
HISTORICAL ADVISORY COMMITTEE (HAC)
Mayor Pro Tem Cusack
Meets every 2nd Tuesday of each month at 9:00 a.m.,
(location may vary)
SPECIAL ADVISORY COMMITTEES
DISASTER PREPAREDNESS*
Mayor - Chairman
Meets quarterly at 1:30 p.m., Town of Apple Valley
Conference Center - Development Services Building
14975 Dale Evans Parkway, Apple Valley.
TRAFFIC ADVISORY COMMITTEE (TAC)
Mayor Nassif
As needed.
Town Council Chambers
TOWN PERSONNEL COMMITTEE
Mayor Nassif
Council Member Bishop
Meets as Needed
PARK AND RECREATION ADVISORY COMMITTEE
Mayor Nassif
Council Member Emick
AD HOC COMMITTEES
APPLE VALLEY ROAD AD HOC COMMITTEE
Mayor Nassif
VILLAGE MERCHANTS AD HOC COMMITTEE
Council Member Emick
SINGLE-FAMILY RESIDENTIAL DESIGN CRITERIA
AD-HOC COMMITTEE
Council Member Art Bishop
Council Member Kari Leon
AGENCY - BOARDS/COMMITTEES &
COMMISSIONS
CALIFORNIA JOINT POWERS INSURANCE
AUTHORITY (CJPIA)
Mayor Nassif – Director
Exec. Committee meets every 4th Wednesday of each
month at 7:00 p.m., La Palma, CA.
CAL CITIES/DESERT MOUNTAIN DIVISION (DMD)
Mayor Nassif- Voting Delegate
Council Member Bishop – Alternate
Meets as needed, rotating cities.
MOJAVE DESERT AIR QUALITY MANAGEMENT
DISTRICT (MDAQMD)
Council Member Leon-– Delegate
Council Member Emick – Alternate
Meets every 4th Monday of each month at 10:00 a.m.,
14306 Park Avenue, Victorville
MOJAVE DESERT AND MOUNTAIN RECYCLING
AUTHORITY
Mayor Pro-Tem Cusack – Delegate
Council Member Bishop – Alternate
Meets quarterly on the 2nd Thursday February, May,
August and November at 10:00 a.m.
at the Materials Recovery Facility, 17000 Abbey Lane,
Victorville
SAN BERNARDINO COUNTY TRANSPORTATION
AUTHORITY (SBCTA)
Council Member Bishop - Board Member
Mayor Pro-Tem Cusack – Alternate
Meets 2nd Wednesday of each month at 9:00 a.m.,
I10/I15 Corridor meets 2nd Thursday at 10:00 a.m.
1170 West 3rd St.
San Bernardino
SOLID WASTE ADVISORY TASK FORCE (SWAT)
Mayor Pro-Tem Cusack – Committee Member
Julie Ryan - Alternate
Meets as needed on Wednesdays at 1:30 p.m.
Sam J. Racadio Library & Environmental Learning
Center Community Room 7863 Central Ave. Highland
VICTOR VALLEY ECONOMIC DEVELOPMENT
AUTHORITY (VVEDA)
(George Air Force Base Reuse Task Force)
Council Member Emick – Commissioner
Council Member Bishop – Alternate
Meets every 2nd Wednesday of each quarter at 5:00
p.m., SCLA
VICTOR VALLEY TRANSIT AUTHORITY (VVTA)
Council Member Emick – Representative
Council Member Leon - Alternate
Meets every 3rd Monday of each month at 9:30 a.m.,
Victorville City Hall
VICTOR VALLEY WASTE WATER RECLAMATION
AUTHORITY (VVWRA)
Mayor Nassif – Commissioner
Council Member Bishop – Alternate
Meets every 3rd Thursday at 7:30 a.m.
VVWRA Offices
GREATER HIGH DESERT CHAMBERS
GOVERNMENTAL RELATIONS COMMITTEE
Council Member Bishop – Representative
Mayor Pro-Tem Cusack – Alternate
*These Boards, Committees and
Commissions require the Mayor to serve
as the representative.
Town Council Agenda Report
Date: June 27, 2023
To: Honorable Mayor and Town Council
Subject: APPROVAL OF MINUTES
From: Douglas Robertson, Town Manager
Submitted by: La Vonda M-Pearson, Director of Government Services/Town Clerk Budgeted Item: Yes No N/A
RECOMMENDED ACTION
That the Town Council approve the subject minutes as part of the consent agenda.
SUMMARY:
A. Regular Meeting June 13, 2023
1 Apple Valley Town Council
MINUTES
June 13, 2023, 6:30 p.m.
Council Chamber
Members Present: Mayor Scott Nassif
Mayor Pro Tem Larry Cusack
Council Member Art Bishop
Council Member Curt Emick
Council Member Kari Leon
_____________________________________________________________________
1. Call to Order
Mayor Nassif called to order the regular session of the Apple Valley Town Council at 6:31 p.m.
2. Opening Ceremonies
2.1 Invocation
Assistant Town Manager Orlando Acevedo.
2.2 Pledge of Allegiance
The Pledge of Allegiance was led by Council Member Emick.
2.3 Presentations
3. Public Comments
Marcy Taylor, representing various Historical Committees, commented on upcoming events in July at the Apple Valley Legacy Museum and other historical events including the viewing of the historic movie Tarantula and a trip to the Heritage Room located at Town Hall.
Kenneth Leeper, Apple Valley, expressed tremendous concern regarding a boy’s home on Pineridge Road that is causing disruptive behavior in the neighborhood.
He spoke of incidents that have occurred and pleaded with the Town Council for assistance.
2 Fidel Morfin, Apple Valley, commented on receiving a citation for a metal storage container on his property after he witnessed others in his neighborhood. He questioned why he was cited for violation and not others. He also asked how this law could be changed.
Veronica Velasquez, Apple Valley, also expressed concern regarding the neighbors at the Pineridge home. She stated that she lives next door to the home. She said she has had to empty her pool for times due to the trash and debris that they throw in her pool. She said the tenants are very dangerous. She also pleaded for help from the Town.
Doug Robertson, Town Manager, commented on the Town's contact with State and local legislatures who are working on this issue. He noted that if the home has six or under residents, the Town is prohibited from regulating the home. He stated that he would ask the Code Enforcement staff to speak with them regarding this issue.
Kevin Morisset, property owner, expressed concern regarding an ongoing issue with fines associated with rental property that he has in the Town.
Veronica Golub stated that she continues to offer her services to support the animals at the Apple Valley Animal Shelter. She said that she has also provided the names of trainers to work with the animals for the long-term success of adoptions.
Corie Carnegie commented on her compassion for animals and her willingness to commit to their wellbeing.
4. Councilmember Committee/Commission/Community Participation Councilmembers to make brief reports on their participation on committees, boards, and commissions on the Town’s behalf since the last meeting.
Councilmembers may also make brief reports on their community participation.
No formal action will be taken.
Council Member Emick commented on committee meetings and events that he attended.
Council Member Leon commented on committee meetings and events that he attended.
Council Member Bishop commented on committee meetings and events that she attended.
Mayor Pro Tem Cusack commented on committee meetings and events that he attended.
3 Mayor Nassif commented on committee meetings and events that he attended.
5. Town Council Announcements
5.1 Suggested items for next Agenda
Council Member Leon recommended that a presentation be given on the awareness and dangers of drugs that would include information on our social media platforms.
Council Member Bishop questioned if Narcan was available at the Town and if staff was trained. He also asked what could be down to improve the attendance for Memorial Day events.
5.2 Time, Date & Place for Next Town Council Regular or Special Meeting A. Regular Meeting - June 27, 2023 - Council Chambers Regular Session at 6:30 p.m.
6. Town Council Consent Agenda
Mayor Pro Tem Cusack has a remote interest in specific warrants on tonight’s Commercial Warrants dealing with Apple Valley Communications, AV Tech Services or AVCOM Services for the Town of Apple Valley as the owner of these businesses. Therefore, he will be recusing from voting on the warrants for Apple Valley Communications, AV Tech Services and AVCOM Services listed under Agenda Item Number 6.2. In addition, due to his interest in these businesses, Mayor Pro Tem Cusack will be recusing from voting on specific warrants listed under Agenda Item Number 6.2 because these entities are considered sources of income to his businesses. A list of business entities for Mayor Pro Tem Cusack is maintained on file in the Town Clerk’s Office and available for review at the dais.
Mayor Pro Tem Cusack confirmed that he would be recusing from voting on these warrants.
Mayor Nassif has a remote interest in specific warrants on tonight’s Commercial Warrants dealing with NAPA Auto Parts or High Desert Auto Supply for the Town of Apple Valley as the owner of these businesses. Therefore, he will be recusing from voting on the warrants for NAPA Auto Parts and High Desert Auto Supply listed under Agenda Item Number 6.2. In addition, due to his interest in both businesses, Mayor Nassif will also be recusing from voting on specific warrants listed under Agenda Item Number 6.2 because these entities are considered sources of income to his businesses. A list of business entities for Mayor Nassif is maintained on file in the Town Clerk’s Office and available for review at the dais.
4 Mayor Nassif confirmed that he would be recusing from voting on these warrants.
Motion by: Council Member Emick
Seconded by: Council Member Bishop
To approve the Consent Calendar items numbered 6.1 - 6.11 as recommended.
Yes (5): Mayor Nassif, Mayor Pro Tem Cusack, Council Member Bishop, Council Member Emick, and Council Member Leon
Carried (5 to 0)
6.1 APPROVAL OF MINUTES
That the Town Council approve the subject minutes as part of the consent agenda.
6.2 MAY 2023 COMMERCIAL WARRANTS AND WIRE TRANSFER
SCHEDULES
That the Town Council receive, ratify, and file the Commercial Warrants and Wire Transfer Schedules as presented.
6.3 MAY 2023 PAYROLL/BENEFITS WARRANTS SCHEDULE
That the Town Council receive, ratify and file the payroll/benefits warrants as presented.
6.4 AWARD OF CONTRACT, STREET STRIPING SERVICES
Award a contract to CAT Tracking, Inc. for Street Striping Services, subject to “Approval as to Form” by the Town Attorney and “Approval as to Content” by the Town Manager.
6.5 ACCEPTANCE OF WORK FOR THE ROADWAY REPAIR 2023-01
PROJECT
A. Approve Roadway Repair 2023-01 Project at the revised total contract cost of $234,007.06 following a deductive change to Purchase Order 2223-000067 for ($172,932.94).
B. Direct the Town Clerk to file the Notice of Completion for the contract work.
C. Direct the Finance Director to release the retained funds 30 days after the Notice of Completion has been filed, provided no claims are filed against the contractor.
5 6.6 APPROVE PURCHASE OF PUMP REBUILD AND INSTALLATION SERVICES AT LIFT STATION 3A-2
Approve purchase of pump rebuild and installation services from FloServices, Inc. in the amount of $76,110.61.
6.7 AWARD OF CONTRACT, TRAFFIC SIGNAL MAINTENANCE
SERVICES
Award a contract to St. Francis Electric for Traffic Signal Maintenance Services, subject to “Approval as to Form” by the Town Attorney and “Approval as to Content” by the Town Manager.
6.8 ADOPT FISCAL YEAR 2023-2024 SB1 ROAD MANTENANCE AND
REHABILITATION ACCOUNT (RMRA) PROJECT LIST RESOLUTION
Adopt Resolution 2023-17 Identifying the project(s) to be funded by SB1 RMRA funding
6.9 AWARD OF CONTRACT, LANDSCAPE MAINTENANCE SERVICES
Award a contract to BrightView Landscape Services, Inc. for Landscape Maintenance Services, subject to “Approval as to Form” by the Town Attorney and “Approval as to Content” by the Town Manager.
6.10 AWARD JAMES WOODY COMMUNITY CENTER ROOF
REPLACEMENT
Award a contract to Bell Roof Company for the James Woody Community Center Roof Replacement Project subject to “Approval as to Form” by the Town Attorney and “Approval as to Content” by the Town Manager.
6.11 LIGHTING AND LANDSCAPE ASSESSMENT DISTRICT #1 -
ENGINEER'S ANNUAL REPORT AND LEVY OF ASSESSMENT FOR
FY 2023-2024
A. Adopt Resolution No. 2023-18, a Resolution of the Town Council of the Town of Apple Valley Directing the Filing of the Annual Report for the Town of Apple Valley Landscaping and Lighting Assessment District.
B. Receive and approve the engineer's report as filed, or as amended.
C. Adopt Resolution No. 2023-19, a Resolution of the Town Council of the Town of Apple Valley Declaring its Intention to Order Improvements and to Levy and Collect Assessments for Fiscal Year 2023-2024.
6 D. Direct the Town Clerk to publish the Resolution of Intention at least 10 days prior to the date of the public hearing.
7. Public Hearings
8. Business of the Council
8.1 RENAMING PAHUTE PARK TO JOSEPH MCCONNELL, JR. PARK
Council to approve Resolution No. 2023-20 naming of Pahute Park to Joseph McConnell Jr., Park.
Andy Shoup, Interim Parks and Recreation Manager, presented the staff report as filed with the Town Clerk.
Council Member Bishop requested that his service in the United States Air Force be included the proclamation.
Marcy Taylor, Historical Advisory, said his full name of Captain McConnell Jr, United States Air Force, be the official park name. She spoke of all the recognitions that the Town had given in memory of Captain McConnell, Jr.
Motion by: Council Member Bishop
Seconded by: Council Member Emick
Approve renaming Pahute Park to Captain Joseph McConnell, Jr. USAF Park
Yes (5): Mayor Nassif, Mayor Pro Tem Cusack, Council Member Bishop, Council Member Emick, and Council Member Leon
Carried (5 to 0)
8.2 APPROVAL OF PROPOSED CONTRACT WITH THE COUNTY OF SAN
BERNARDINO FOR ANIMAL SHELTER SERVICES
That the Town Council approve the proposed contract with the County of San Bernardino for Animal Shelter Services.
Doug Robertson, Town Manager, presented the staff report as filed with the Town Clerk.
Veronica Golub commented on the need for networkers to be involved with this process.
Mr. Robertson thanked the San Bernardino County representatives for their attendance at tonights meeting supporting the contract as presented.
7 Motion by: Council Member Emick
Seconded by: Council Member Leon
Approve proposed contract with the County of San Bernardino for Animal Shelter Services.
Yes (5): Mayor Nassif, Mayor Pro Tem Cusack, Council Member Bishop, Council Member Emick, and Council Member Leon
Carried (5 to 0)
9. Reports, Requests and Communications
10. Town Manager’s Comments & Legislative Update
Doug Robertson, Town Manager, provided an update of current events, upcoming events and activities in the Town of Apple Valley.
11. Closed Session
To adjourn the regular meeting to move into Closed Session at 8:13 p.m. to discuss the following:
11.1 CLOSED SESSION
A. Negotiations with Real Property Negotiator – Property: APN 308- 005-133; 22311 Bear Valley Road, Building A, Apple Valley, CA 92308; Negotiating Parties: HS Cluster, LLC; Town Negotiator(s) - Town Manager, or Designee; Under Negotiation: Price and terms of payment.
Upon returning from Closed Session at 8:47 p.m. Thomas Rice, Town Attorney, announced that no formal action was taken, but that direction was given to the Town’s real property negotiator, the Town Manager.
8 12. Adjournment
Motion by: Council Member Emick
Seconded by: Council Member Bishop
To adjourn the meeting of the Apple Valley Town Council at 8:47 p.m.
Carried Unanimously
Scott Nassif, Mayor La Vonda M. Pearson, Town Clerk
Town Council Agenda Report
Date: June 27, 2023
To: Honorable Mayor and Town Council
Subject: ACCEPTANCE OF WORK FOR THE CIVIC CENTER PARK POOL DECK REPLACEMENT.
From: Douglas Robertson, Town Manager
Submitted by: Orlando Acevedo, Assistant Town Manager
Parks and Recreation
Budgeted Item: Yes No N/A
RECOMMENDED ACTION
A. Accept the work completed on the Civic Center Park Pool Deck Replacement Project for a total contract cost of $151,324.51.
B. Direct the Town Clerk to file the Notice of Completion for the contract work.
C. Direct the Finance Director to release the retained funds 30 days after the Notice of Completion has been filed, provided no claims are filed against the contractor.
BACKGROUND
Over the years, the deck surrounding the Town’s pool has deteriorated creating a jagged walking surface for pool staff and guests. The Civic Center Park Pool Deck Replacement Project provided the materials, equipment, and labor necessary to sawcut and remove 12’ of existing concrete and rebar around the perimeter of the pool and replace it, in kind, with new brushed concrete and rebar. During construction, a change order was issued to the contractor to pour a new walkway and exterior patio adjacent to the lifeguard break area. Additionally, the contractor was asked to provide bonding of the metal sleeves to the existing deck.
ANALYSIS
Facilities and recreation staff inspected the project area and deemed the work to be complete and acceptable.
FISCAL IMPACT
Funding for this project has been appropriated in the adopted FY 2022-2023 budget using account 1001-6640-9300-0000. The original contract price was $134,954.89, and Change Order No. 1 increased the cost by $16,359.62. The final cost to Jergensen Construction is $151,324.51.
ATTACHMENTS
A. Notice of Completion
Recording Requested by:
Town of Apple Valley
When Recorded mail to:
Town of Apple Valley
Town Clerk’s Office
14955 Dale Evans Parkway
Apple Valley, CA 92307
FOR RECORDER’S USE ONLY
Notice of Completion
This document is recorded at the request of and for the benefit of the Town of Apple valley, California, and is therefore exempt from the payment of the recording fee pursuant to Government Code Section 27383 and from the payment of the documentary transfer tax pursuant to Revenue and Taxation code 11922.
NOTICE IS HEREBY GIVEN, that
1. The undersigned, Andy Shoup, is the duly appointed and qualified Interim Parks and Recreation Manager of the Town of Apple Valley, a municipal corporation of the State of California, and which is located within the County of San Bernardino, in said State, and the address of the undersigned is 14955 Dale Evans Parkway, Apple Valley, California 92307.
2. That on the 13th day of December, 2022, and pursuant to approval of the Town Council of the said Town, the Town entered into a contract with Jergensen Construction, 9320 Daisy Road, Oak Hills, Ca. 92344 for the construction of the Pool Deck Replacement Project in the Town of Apple Valley in accordance with the Town of Apple Valley's Plans and Specifications.
3. That all of the said work or improvement was located on APN 3112-251-08 in the Town of Apple Valley.
4. That all of the said work or improvement contemplated in and under said contract was completed, and accepted by Council action, on June 27, 2023.
5. That the Surety on the Performance Bond of said Contractor and the surety on the Labor and Material Bond of said Contractor, under said contract, was and is $151,324.51 and $151,324.51.
6. Owners - Town of Apple Valley.
7. Nature of Interest – In fee/easement.
The undersigned, being the first duly sworn, says: That he is the duly appointed and qualified Town Engineer of the Town of Apple Valley, the political subdivision of the state of California which conducted the proceedings for the improvement located at 14955 Dale Evans Parkway, in said Town, described or referred to in the foregoing Notice; and that he has read the foregoing "Notice of Completion;" and knows the contents thereof, and that the facts recited therein are true.
I certify under penalty of perjury the foregoing is true and correct.
Apple Valley, CA. June 27, 2023
Andy Shoup, Interim Parks and Recreation Manager of the Town of Apple Valley, California
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
TOWN OF APPLE VALLEY )ss.
Town Council Agenda Report
Date: June 27, 2023
To: Honorable Mayor and Town Council
Subject: AWARD JAMES WOODY RESTROOM REPLACEMENT PROJECT
From: Douglas Robertson, Town Manager
Submitted by: Orlando Acevado, Assistant Town Manager
Parks and Recreation
Budgeted Item: Yes No N/A
RECOMMENDED ACTION
Award a Construction Contract to Hitt Construction Company, Inc. for the James Woody Restroom Replacement project subject to “Approval as to Form” by the Town Attorney and “Approval as to Content” by the Town Manager.
BACKGROUND
The Town of Apple Valley received a 2018 Parks Bond Act Per Capita Grant from the State of California Department of Parks and Recreation to install a new prefabricated restroom near the southerly playground and replace fencing at baseball fields 5, 6, 7, and 8, playground area and eastside perimeter of James Woody Park.
ANALYSIS
On June 6, 2023, the Town received three proposals for the subject project from the following firms:
Hitt Construction $230,000
TSR Construction & Inspection Option A $234,400
TSR Construction & Inspection Option B $294,300
Jergensen Construction $336,612.87
Upon receipt, the proposals were evaluated by members of the Parks & Recreation, Facilities, and Engineering departments using the following criteria:
Proposed design services, restroom facility, and associated components. Background and experience of the Contractor in providing similar services or materials elsewhere, including experience working with municipalities. Responsiveness and compliance with RFP guidelines.
Timeframe of services and delivery of materials.
Overall project cost.
The review team selected Hitt Construction Company, Inc. for the following reasons:
Quality of the proposed facility;
Availability of the proposed facility and the contractor’s ability to install within a month after award;
Hitt Construction Company’s proposed cost for this project is $230,000.00 which is within the estimated grant budget.
For all the reasons mentioned above, staff recommends that Hitt Construction Company, Inc. be awarded a Construction Contract for the James Woody Park Restroom Replacement project.
FISCAL IMPACT
The cost for the James Woody Park Restroom Replacement project is $230,000. Funding is included in the adopted Fiscal Year 2023-2024 budget.
ATTACHMENTS
A. Project Location
B. Contract for Construction
Attachment A
Project Location
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TOWN OF APPLE VALLEY
SHORT FORM CONSTRUCTION CONTRACT
James Woody Restroom Replacement
1. PARTIES AND DATE.
This Contract is made and entered into this 27th day of June, 2023 by and between the Town of Apple Valley, a municipal corporation organized under the laws of the State of California with its principal place of business at 14955 Dale Evans Parkway, Apple Valley, California, 92307 (“Town”) and Hitt Construction Company, Inc., a Corporation, with its principal place of business at 13609 Hitt Rd, Apple Valley, CA 92308 (“Contractor”). Town and Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Contract.
2. RECITALS.
2.1 Town. Town is a public agency organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.
2.2 Contractor. Contractor desires to perform and assume responsibility for the provision of certain construction services required by the Town on the terms and conditions set forth in this Contract. Contractor represents that it is duly licensed and experienced in providing modular restroom installation related construction services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the services in the State of California, and that it is familiar with the plans of Town. The following license classifications are required for this Project: A
2.3 Project. Town desires to engage Contractor to render such services for the James Woody Restroom Replacement (“Project”) as set forth in this Contract.
2.4 Project Documents & Certifications. Contractor has obtained, and delivers concurrently herewith, insurance documents as required by the Contract.
3. TERMS
3.1 Compensation and Payment.
3.1.1 Amount of Compensation. As consideration for performance of the Work required herein, Town agrees to pay Contractor the Total Contract Price of Two Hundred Thirty Thousand Dollars ($230,000.00) (“Total Contract Price”) provided that such amount shall be subject to adjustment pursuant to the applicable terms of this Contract or written change orders approved and signed in advance by the Town.
3.1.2 Payment of Compensation. If the Work is scheduled for completion in thirty (30) or less calendar days, Town will arrange for payment of the Total Contract Price upon completion and approval by Town of the Work. If the Work is scheduled for completion in more than thirty (30) calendar days, Town will pay Contractor on a monthly basis as provided for herein.
On or before the fifth (5th) day of each month, Contractor shall submit to the Town an itemized application for payment in the format supplied by the Town indicating the amount of Work completed since commencement of the Work or since the last progress payment. These applications shall be supported by evidence which is required by this Contract and such other
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documentation as the Town may require. The Contractor shall certify that the Work for which payment is requested has been done and that the materials listed are stored where indicated.
Contractor may be required to furnish a detailed schedule of values upon request of the Town and in such detail and form as the Town shall request, showing the quantities, unit prices, overhead, profit, and all other expenses involved in order to provide a basis for determining the amount of progress payments.
3.1.3 Prompt Payment. Town shall review and pay all progress payment requests in accordance with the provisions set forth in Section 20104.50 of the California Public Contract Code. However, no progress payments will be made for Work not completed in accordance with this Contract. Contractor shall comply with all applicable laws, rules and regulations relating to the proper payment of its employees, subcontractors, suppliers or others.
3.1.4 Contract Retentions. If this Contract is greater than Five Thousand dollars ($5,000), from each approved progress estimate, five percent (5%) will be deducted and retained by the Town, and the remainder will be paid to Contractor. All Contract retention shall be released and paid to Contractor and subcontractors pursuant to California Public Contract Code Section 7107.
3.1.5 Other Retentions. In addition to Contract retentions, the Town may deduct from each progress payment an amount necessary to protect Town from loss because of:
(1) liquidated damages which have accrued as of the date of the application for payment; (2) any sums expended by the Town in performing any of Contractor’s obligations under the Contract which Contractor has failed to perform or has performed inadequately; (3) defective Work not remedied; (4) stop notices as allowed by state law; (5) reasonable doubt that the Work can be completed for the unpaid balance of the Total Contract Price or within the scheduled completion date; (6) unsatisfactory prosecution of the Work by Contractor; (7) unauthorized deviations from the Contract; (8) failure of Contractor to maintain or submit on a timely basis proper and sufficient documentation as required by the Contract or by Town during the prosecution of the Work; (9) erroneous or false estimates by Contractor of the value of the Work performed; (10) any sums representing expenses, losses, or damages as determined by the Town, incurred by the Town for which Contractor is liable under the Contract; and (11) any other sums which the Town is entitled to recover from Contractor under the terms of the Contract or pursuant to state law, including Section 1727 of the California Labor Code. The failure by the Town to deduct any of these sums from a progress payment shall not constitute a waiver of the Town’s right to such sums.
3.1.6 Substitutions for Contract Retentions. Pursuant to California Public Contract Code section 22300, Contractor may substitute securities for any money withheld by the Town to ensure the performance under the Contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the Town, with the State or a federally chartered bank as the escrow agent, who shall return such securities to Contractor upon satisfactory completion of the Contract. Deposit of securities with an escrow agent shall be subject to a written agreement between the escrow agent and the Town, which provides that no portion of the securities shall be paid to Contractor until the Town has certified to the escrow agent, in writing, that the Contract has been satisfactorily completed. The Town shall certify that the Contract has been satisfactorily completed within sixty (60) days of work "completion" as defined in Section 7107(c) of the California Public Contract Code. Securities eligible for investment under this section shall be limited to those listed in Section 16430 of the Government Code, bank or savings & loan certificates of deposit, interest-bearing demand deposit accounts, stand-by letters of credit, or any other security mutually agreed to by Contractor.
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3.1.7 Payment to Subcontractors. Contractor shall pay all subcontractors for and on account of work performed by such subcontractors in accordance with the terms of their respective subcontracts and as provided for in Section 7108.5 of the California Business and Professions Code. Such payments to subcontractors shall be based on the measurements and estimates made and progress payments provided to Contractor pursuant to this Contract.
3.1.8 Title to Work. As security for partial, progress, or other payments, title to Work for which such payments are made shall pass to the Town at the time of payment. To the extent that title has not previously been vested in the Town by reason of payments, full title shall pass to the Town at delivery of the Work at the destination and time specified in this Contract.
Such transferred title shall in each case be good, free and clear from any and all security interests, liens, or other encumbrances. Contractor promises and agrees that it will not pledge, hypothecate, or otherwise encumber the items in any manner that would result in any lien, security interest, charge, or claim upon or against said items. Such transfer of title shall not imply acceptance by the Town, nor relieve Contractor from the responsibility to strictly comply with the Contract, and shall not relieve Contractor of responsibility for any loss of or damage to items.
3.1.9 Labor and Material Releases. Contractor shall furnish Town with labor and material releases from all subcontractors performing work on, or furnishing materials for, the Work governed by this Contract prior to final payment by Town.
3.2 Incorporation of Documents. This Contract includes and hereby incorporates in full by reference the following documents, including all exhibits, drawings, specifications and documents therein, and attachments and addenda thereto:
• Services/Schedule (Exhibit “A”)
• Plans and Specifications (Exhibit “B”)
• Special Conditions (Exhibit “C”)
• Contractor’s Certificate Regarding Workers’ Compensation (Exhibit “D”) • Public Works Contractor Registration Certification (Exhibit “E”) • Addenda
• Change Orders executed by the Town
• Current Edition of the Standard Specifications for Public Works Construction (The Greenbook), Excluding Sections 1-8
• Notice Inviting Bids, if any
• Instructions to Bidders, if any
• Contractor’s Bid
To the extent there is a conflict between any portions of this Contract, the order of precedence shall be as follows: change orders, special conditions, technical specifications, plans/construction drawings, general contract terms, scope of work, standard plans, advertisements for bid/proposals, bids/proposals or other documents submitted by Contractor.
3.3 Contractor’s Basic Obligation; Scope of Work.
3.3.1 Scope of Work. Contractor promises and agrees, at its own cost and expense, to furnish to the Town all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately complete the Project, including all structures and facilities necessary for the Project or described in the Contract (hereinafter sometimes referred to as the “Work”), for a Total Contract Price as specified pursuant to this Contract. All
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Work shall be subject to, and performed in accordance with the above referenced documents, as well as the exhibits attached hereto and incorporated herein by reference. The plans and specifications for the Work are further described in Exhibit “B” attached hereto and incorporated herein by this reference. Special Conditions, if any, relating to the Work are described in Exhibit “C” attached hereto and incorporated herein by this reference.
3.3.2 Change in Scope of Work. Any change in the scope of the Work, method of performance, nature of materials or price thereof, or any other matter materially affecting the performance or nature of the Work shall not be paid for or accepted unless such change, addition or deletion is approved in advance and in writing by a valid change order executed by the Town.
3.3.3 Change Orders. Changes to the Contract Time (as defined in Section
3.3) or Total Contract Price shall be in the form of a written Change Order, either signed by both parties or issued unilaterally by the Town. No adjustment shall be made to the Contract Time unless the delay impacts the critical path to completion and the delay was not caused in whole or in part by the Contractor. The Town’s liability to Contractor for delays for which the Town is responsible shall be limited to only an extension of time unless such delays were unreasonable under the circumstances. Failure to timely request a Change Order shall constitute a waiver of any right to adjust the Contract Time or the Total Contract Price. All requests for Change Orders shall be accompanied by detailed supporting documentation, including but not limited to payroll records, invoices, schedules, and any other documentation requested by the Town for the purpose of determining the additional costs or the impact of any delay. If the change involves Work bid at a unit price, then the Total Contract Price shall be increased at the unit price. If there is no unit price, then the Total Contract Price shall be adjusted to account for costs actually incurred plus an allowed mark-up of fifteen percent (15%), which shall constitute the entire amount of profit, mark-ups, field or home office overhead costs, including personnel, equipment or office space, any materials, or any costs of equipment idle time for such work. Regardless of ownership, equipment rates shall not exceed the listed prevailing rates at local equipment rental agencies, or distributors, at the time the work is performed. Nothing herein shall prevent the Parties from agreeing to a lump sum cost.
3.3.4 Changes Ordered By Town. Town may at any time issue a written directive ordering additions, deletions, or changes to the Work. Contractor shall proceed with the work in accordance with the directive. To the extent the directive results in extra work or requires additional Contract Time, Contractor shall request a Change Order within seven (7) days of receiving the Work Directive. If any costs are not capable of being determined within seven (7) days, then Contractor shall request a Change Order within seven (7) days of when the costs are capable of being determined.
3.3.5 Changes Requested By Contractor. With respect to any matter that may involve or require an adjustment to the Contract Time or the Contract Price, Contractor shall provide written notice of the underlying facts and circumstances that gave rise to the potential change within seven (7) days or prior to the alteration of conditions, whichever is earlier. Failure to give notice shall constitute a waiver of Contractor’s right to a change order. If any costs are not capable of being determined within seven (7) days, then Contractor shall request a Change Order within seven (7) days of when the costs are capable of being determined.
3.4 Substitutions/”Or Equal”. Pursuant to Public Contract Code Section 3400(b), the Town may make a finding that designates certain products, things, or services by specific brand or trade name. Unless specifically designated in this Contract, whenever any material,
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process, or article is indicated or specified by grade, patent, or proprietary name or by name of manufacturer, such Specifications shall be deemed to be used for the purpose of facilitating the description of the material, process or article desired and shall be deemed to be followed by the words “or equal.”
Contractor may, unless otherwise stated, offer for substitution any material, process or article which shall be substantially equal or better in every respect to that so indicated or specified in this Contract. However, the Town may have adopted certain uniform standards for certain materials, processes and articles. Contractor shall submit requests, together with substantiating data, for substitution of any “or equal” material, process or article no later than thirty-five (35) days after award of the Contract. To facilitate the construction schedule and sequencing, some requests may need to be submitted before thirty-five (35) days after award of Contract. Provisions regarding submission of “or equal” requests shall not in any way authorize an extension of time for performance of this Contract. If a proposed “or equal” substitution request is rejected, Contractor shall be responsible for providing the specified material, process or article. The burden of proof as to the equality of any material, process or article shall rest with Contractor.
The Town has the complete and sole discretion to determine if a material, process or article is an “or equal” material, process or article that may be substituted. Data required to substantiate requests for substitutions of an “or equal” material, process or article data shall include a signed affidavit from Contractor stating that, and describing how, the substituted “or equal” material, process or article is equivalent to that specified in every way except as listed on the affidavit. Substantiating data shall include any and all illustrations, specifications, and other relevant data including catalog information which describes the requested substituted “or equal” material, process or article, and substantiates that it is an “or equal” to the material, process or article. The substantiating data must also include information regarding the durability and lifecycle cost of the requested substituted “or equal” material, process or article. Failure to submit all the required substantiating data, including the signed affidavit, to the Town in a timely fashion will result in the rejection of the proposed substitution.
Contractor shall bear all of the Town’s costs associated with the review of substitution requests. Contractor shall be responsible for all costs related to a substituted “or equal” material, process or article. Contractor is directed to the Special Conditions (if any) to review any findings made pursuant to Public Contract Code section 3400.
3.5 Period of Performance and Liquidated Damages.
3.5.1 Contractor shall perform and complete all Work under this Contract within 30 working days, beginning the effective date of the Notice to Proceed (“Contract Time”).
Contractor shall perform its Work in strict accordance with any completion schedule, construction schedule or project milestones developed by the Town. Such schedules or milestones may be included as part of Exhibits “A” or “B” attached hereto, or may be provided separately in writing to Contractor. Contractor agrees that if such Work is not completed within the aforementioned Contract Time and/or pursuant to any such completion schedule, construction schedule or project milestones developed pursuant to provisions of the Contract, it is understood, acknowledged and agreed that the Town will suffer damage. Pursuant to Government Code Section 53069.85, Contractor shall pay to the Town as fixed and liquidated damages the sum of $100 per day for each and every calendar day of delay beyond the Contract Time or beyond any completion schedule, construction schedule or Project milestones established pursuant to the Contract.
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3.5.2 If Contractor is delayed in the performance or progress of the Work by a Force Majeure Event (as defined herein), then the Contractor shall be entitled to a time extension, as provided herein, when the Work stopped is on the critical path and shall not be charged liquidated damages. Such a non-compensable adjustment shall be Contractor’s sole and exclusive remedy for such delays and the Contractor will not receive an adjustment to the Total Contract Price or any other compensation. Contractor must submit a timely request in accordance with the requirements of the Contract.
3.5.3 A Force Majeure Event shall mean an event that materially affects a party’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the work); (4) pandemics, epidemics or quarantine restrictions; and (5) strikes and other organized labor action occurring at the project site and the effects thereof on the work, only to the extent such strikes and other organized labor action are beyond the control of Contractor and its subcontractors, of every tier, and to the extent the effects thereof cannot be avoided by use of replacement workers. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the Town in its capacity as a municipal authority.
3.6 Standard of Performance; Performance of Employees. Contractor shall perform all Work under this Contract in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Work. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Work assigned to them.
Finally, Contractor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Work, including a Town Business License, and that such licenses and approvals shall be maintained throughout the term of this Contract. As provided for in the indemnification provisions of this Contract, Contractor shall perform, at its own cost and expense and without reimbursement from the Town, any work necessary to correct errors or omissions which are caused by Contractor’s failure to comply with the standard of care provided for herein. Any employee who is determined by the Town to be uncooperative, incompetent, a threat to the safety of persons or the Work, or any employee who fails or refuses to perform the Work in a manner acceptable to the Town, shall be promptly removed from the Project by Contractor and shall not be re-employed on the Work.
3.7 Control and Payment of Subordinates; Contractual Relationship. Town retains Contractor on an independent contractor basis and Contractor is not an employee of Town. Any additional personnel performing the work governed by this Contract on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance under this Contract and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance.
3.8 Town’s Basic Obligation. Town agrees to engage and does hereby engage Contractor as an independent contractor to furnish all materials and to perform all Work according to the terms and conditions herein contained for the sum set forth above. Except as otherwise
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provided in the Contract, the Town shall pay to Contractor, as full consideration for the satisfactory performance by Contractor of the services and obligations required by this Contract, the belowreferenced compensation in accordance with compensation provisions set forth in the Contract.
3.9 Labor.
3.9.1 Prevailing Wages. Contractor is aware of the requirements of California Labor Code Section 1720 et seq., and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. Since the Work is being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. Town shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Contract. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at Contractor’s principal place of business and at the project site. Contractor shall defend, indemnify and hold the Town, its officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. Contractor and any subcontractor shall forfeit a penalty of up to $200 per calendar day or portion thereof for each worker paid less than the prevailing wage rates.
3.9.2 Apprenticeable Crafts. When Contractor employs workmen in an apprenticeable craft or trade, Contractor shall comply with the provisions of Section 1777.5 of the California Labor Code with respect to the employment of properly registered apprentices upon public works. The primary responsibility for compliance with said section for all apprenticeable occupations shall be with Contractor. The Contractor or any subcontractor that is determined by the Labor Commissioner to have knowingly violated Section 1777.5 shall forfeit as a civil penalty an amount not exceeding $100 for each full calendar day of noncompliance, or such greater amount as provided by law.
3.9.3 Hours of Work. Contractor is advised that eight (8) hours labor constitutes a legal day’s work. Pursuant to Section 1813 of the California Labor Code, Contractor shall forfeit a penalty of $25.00 per worker for each day that each worker is permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week, except when payment for overtime is made at not less than one and one-half (1-1/2) times the basic rate for that worker.
3.9.4 Payroll Records. Contractor and each subcontractor shall keep an accurate payroll record, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him or her in connection with the public work. The payroll records shall be certified and shall be available for inspection at all reasonable hours at the principal office of Contractor in the manner provided in Labor Code section 1776. In the event of noncompliance with the requirements of this section, Contractor shall have 10 days in which to comply subsequent to receipt of written notice specifying in what respects such Contractor must comply with this section. Should noncompliance still be evident after such 10-day period, Contractor shall, as a penalty to Town, forfeit not more than $100.00 for each calendar day or portion thereof, for each worker, until strict compliance is effectuated. The amount of the forfeiture is to be determined by the Labor Commissioner. A contractor who is
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found to have violated the provisions of law regarding wages on Public Works with the intent to defraud shall be ineligible to bid on Public Works contracts for a period of one to three years as determined by the Labor Commissioner. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payments then due. The responsibility for compliance with this section is on Contractor.
In accordance with Labor Code section 1771.4, the Contractor and each subcontractor shall furnish the certified payroll records directly to the Department of Industrial Relations (“DIR”) on a weekly basis and in the format prescribed by the DIR, which may include electronic submission.
The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.
3.9.5 Contractor and Subcontractor Registration. Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the DIR. No bid will be accepted nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the DIR to perform public work. Contractor is directed to review, fill out and execute the Public Works Contractor Registration Certification attached hereto as Exhibit “E” prior to contract execution. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
3.9.6 Labor Compliance; Stop Orders. This Project is subject to compliance monitoring and enforcement by the DIR. It shall be the Contractor’s sole responsibility to evaluate and pay the cost of complying with all labor compliance requirements under this Contract and applicable law. Any stop orders issued by the DIR against Contractor or any subcontractor that affect Contractor’s performance of Work, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay subject to any applicable liquidated damages and shall not be compensable by the Town. Contractor shall defend, indemnify and hold the Town, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Contractor or any subcontractor.
3.10 Performance of Work; Jobsite Obligations.
3.10.1 Water Quality Management and Compliance.
3.10.1.1 Water Quality Management and Compliance. Contractor shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Work including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); local ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State.
3.10.1.2 Compliance with the Statewide Construction General Permit.
Contractor shall comply with all conditions of the most recent iteration of the National Pollutant Discharge Elimination System General Permit for Storm Water Discharges Associated with
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Construction Activity, issued by the California State Water Resources Control Board (“Permit”). It shall be Contractor’s sole responsibility to file a Notice of Intent and procure coverage under the Permit for all construction activity which results in the disturbance of more than one acre of total land area or which is part of a larger common area of development or sale. Prior to initiating work, Contractor shall be solely responsible for preparing and implementing a Storm Water Pollution Prevention Plan (SWPPP) as required by the Permit. Contractor shall be responsible for procuring, implementing and complying with the provisions of the Permit and the SWPPP, including the standard provisions, and monitoring and reporting requirements as required by the Permit. The Permit requires the SWPPP to be a “living document” that changes as necessary to meet the conditions and requirements of the job site as it progresses through difference phases of construction and is subject to different weather conditions. It shall be Contractor’s sole responsibility to update the SWPPP as necessary to address conditions at the project site.
3.10.1.3 Other Water Quality Rules Regulations and Policies. Contractor shall comply with the lawful requirements of any applicable municipality, drainage Town, or local agency regarding discharges of storm water to separate storm drain systems or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.
3.10.1.4 Cost of Compliance. Storm, surface, nuisance, or other waters may be encountered at various times during construction of the Work. Therefore, the Contractor, hereby acknowledges that it has investigated the risk arising from such waters and assumes any and all risks and liabilities arising therefrom.
3.10.1.5 Liability for Non-Compliance. Failure to comply with laws, regulations, standards, ordinances, and permits listed in Sections 3.10.1.1, 3.10.1.2, 3.10.1.3, and 3.10.1.4 of the Contract is a violation of federal and state law. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to defend, indemnify and hold harmless the Town and its directors, officials, officers, employees, volunteers and agents for any alleged violations. In addition, Town may seek damages from Contractor for any delay in completing the Work in accordance with the Contract, if such delay is caused by or related to Contractor’s failure to comply with the Permit.
3.10.1.6 Reservation of Right to Defend. Town reserves the right to defend any enforcement action brought against the Town for Contractor’s failure to comply with the Permit or any other relevant water quality law, regulation, or policy. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to be bound by, and to reimburse the Town for the costs (including the Town’s attorney’s fees) associated with, any settlement reached between the Town and the relevant enforcement entity.
3.10.1.7 Training. In addition to the standard of performance requirements set forth in this Contract, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations and policies described in paragraph 3.10.1.
Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by Town, regarding the requirements of the laws, regulations and policies described in paragraph 3.10.1 as they may relate to the Work provided under this Contract. Upon request, Town will provide the Contractor with a list of training programs that meet the requirements of this paragraph.
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3.10.2 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. Contractor shall comply with the requirements of the specifications relating to safety measures applicable in particular operations or kinds of work. In carrying out its Work, 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, adequate life protection and lifesaving equipment; adequate illumination for underground and night operations; instructions in accident prevention for all employees, such as machinery guards, safe walkways, scaffolds, ladders, bridges, gang planks, confined space procedures, trenching and shoring, fall protection and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and adequate facilities for the proper inspection and maintenance of all safety measures. Furthermore, Contractor shall prominently display the names and telephone numbers of at least two medical doctors practicing in the vicinity of the Project, as well as the telephone number of the local ambulance service, adjacent to all telephones at the Project site.
3.10.3 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Contract or the Work, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with the Work. If Contractor observes that the drawings or specifications are at variance with any law, rule or regulation, it shall promptly notify the Town in writing. Any necessary changes shall be made by written change order. If Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the Town, Contractor shall be solely responsible for all costs arising therefrom. Town is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Contract to the same extent as though set forth herein and will be complied with. Contractor shall defend, indemnify and hold Town, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Contract, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
3.10.4 Permits and Licenses. Contractor shall be responsible for securing Town permits and licenses necessary to perform the Work described herein, including, but not limited to, a Town Business License. While Contractor will not be charged a fee for any Town permits, Contractor shall pay the Town’s applicable business license fee. Any ineligible contractor or subcontractor pursuant to Labor Code Sections 1777.1 and 1777.7 may not perform work on this Project.
3.10.5 Trenching Work. If the Total Contract Price exceeds $25,000 and if the Work governed by this Contract entails excavation of any trench or trenches five (5) feet or more in depth, Contractor shall comply with all applicable provisions of the California Labor Code, including Section 6705. To this end, Contractor shall submit for Town’s review and approval 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.
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3.10.6 Hazardous Materials and Differing Conditions. As required by California Public Contract Code Section 7104, if this Contract involves digging trenches or other excavations that extend deeper than four (4) feet below the surface, Contractor shall promptly, and prior to disturbance of any conditions, notify Town of: (1) any material discovered in excavation that Contractor believes to be a hazardous waste that is required to be removed to a Class I, Class II or Class III disposal site; (2) subsurface or latent physical conditions at the site differing from those indicated by Town; and (3) unknown physical conditions of an unusual nature at the site, significantly different from those ordinarily encountered in such contract work. Upon notification, Town shall promptly investigate the conditions to determine whether a change order is appropriate. In the event of a dispute, Contractor shall not be excused from any scheduled completion date and shall proceed with all Work to be performed under the Contract, but shall retain all rights provided by the Contract or by law for making protests and resolving the dispute.
3.10.7 Underground Utility Facilities. To the extent required by Section 4215 of the California Government Code, Town shall compensate Contractor for the costs of: (1) locating and repairing damage to underground utility facilities not caused by the failure of Contractor to exercise reasonable care; (2) removing or relocating underground utility facilities not indicated in the construction drawings; and (3) equipment necessarily idled during such work.
Contractor shall not be assessed liquidated damages for delay caused by failure of Town to provide for removal or relocation of such utility facilities.
3.10.8 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Although CARB limits and requirements are more broad, Contractor shall specifically be aware of their application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify Town against any fines or penalties imposed by CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Contract.
3.10.9 State Recycling Mandates. Contractor shall comply with State Recycling Mandates. Any recyclable materials/debris collected by the contractor that can be feasibly diverted via reuse or recycling must be hauled by the appropriate handler for reuse or recycling.
3.10.10 Inspection Of Site. Contractor has visited sites where Work is to be performed and has become acquainted with all conditions affecting the Work. Contractor warrants that it has made such examinations as it deems necessary to determine the condition of the Work sites, its accessibility to materials, workmen and equipment, and to determine the Contractor’s ability to protect existing surface and subsurface improvements. No claim for allowances–time or money–will be allowed as to such matters.
3.10.11 Field Measurements. Contractor shall make field measurements, verify field conditions and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents before commencing activities.
Errors, inconsistencies or omissions discovered shall be reported to the Town immediately and prior to performing any work or altering the condition.
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3.11 Completion of Work. When Contractor determines that it has completed the Work required herein, Contractor shall so notify Town in writing and shall furnish all labor and material releases required by this Contract. Town shall thereupon inspect the Work. If the Work is not acceptable to the Town, the Town shall indicate to Contractor in writing the specific portions or items of Work which are unsatisfactory or incomplete. Once Contractor determines that it has completed the incomplete or unsatisfactory Work, Contractor may request a re-inspection by the Town. Once the Work is acceptable to Town, Town shall pay to Contractor the Total Contract Price remaining to be paid, less any amount which Town may be authorized or directed by law to retain. Payment of retention proceeds due to Contractor shall be made in accordance with Section 7107 of the California Public Contract Code.
3.12 Claims; Government Code Claim Compliance.
3.12.1 Intent. Effective January 1, 1991, Section 20104 et seq., of the California Public Contract Code prescribes a process utilizing informal conferences, non-binding judicial supervised mediation, and judicial arbitration to resolve disputes on construction claims of $375,000 or less. Effective January 1, 2017, Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims.
The intent of this Section is to implement Sections 20104 et seq. and Section 9204 of the California Public Contract Code. This Section shall be construed to be consistent with said statutes.
3.12.2 Claims. For purposes of this Section, “Claim” means a separate demand by the Contractor, after a change order duly requested in accordance with the terms of this Contract has been denied by the Town, for (A) a time extension, (B) payment of money or damages arising from Work done by or on behalf of the Contractor pursuant to the Contract, or (C) an amount the payment of which is disputed by the Town. A “Claim” does not include any demand for payment for which the Contractor has failed to provide notice, request a change order, or otherwise failed to follow any procedures contained in the Contract Documents.
3.12.3 Filing Claims. Claims governed by this Section may not be filed unless and until the Contractor completes all procedures for giving notice of delay or change and for the requesting of a time extension or change order, including but not necessarily limited to the change order procedures contained herein, and Contractor’s request for a change has been denied in whole or in part. Claims governed by this Section must be filed no later than fourteen (14) days after a request for change has been denied in whole or in part or after any other event giving rise to the Claim. The Claim shall be submitted in writing to the Town and shall include on its first page the following in 16 point capital font: “THIS IS A CLAIM.” Furthermore, the claim shall include the documents necessary to substantiate the claim. Nothing in this Section is intended to extend the time limit or supersede notice requirements otherwise provided by contract for the filing of claims, including all requirements pertaining to compensation or payment for extra Work, disputed Work, and/or changed conditions. Failure to follow such contractual requirements shall bar any claims or subsequent lawsuits for compensation or payment thereon.
3.12.4 Supporting Documentation. The Contractor shall submit all claims in the following format:
3.12.4.1 Summary of claim merit and price, reference Contract Document provisions pursuant to which the claim is made
3.12.4.2 List of documents relating to claim:
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(A) Specifications
(B) Drawings
(C) Clarifications (Requests for Information)
(D) Schedules
(E) Other
3.12.4.3 Chronology of events and correspondence
3.12.4.4 Analysis of claim merit
3.12.4.5 Analysis of claim cost, including calculations and supporting documents
3.12.4.6 Time impact analysis in CPM format
3.12.5 Town’s Response. Upon receipt of a Claim pursuant to this Section, Town shall conduct a reasonable review of the Claim and, within a period not to exceed 45 days of receipt of the Claim, or as extended by mutual agreement, shall provide the Contractor a written statement identifying what portion of the Claim is disputed and what portion is undisputed. Any payment due on an undisputed portion of the Claim will be processed and made within 60 days after the Town issues its written statement.
3.12.5.1 If Town needs approval from its governing body to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the Claim, and the governing body does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a Claim sent by registered mail or certified mail, return receipt requested, Town shall have up to three (3) days following the next duly publicly noticed meeting of the governing body after the 45-day period, or extension, expires to provide the Contractor a written statement identifying the disputed portion and the undisputed portion.
3.12.5.2 Within 30 days of receipt of a Claim, Town may request in writing additional documentation supporting the Claim or relating to defenses or claims Town may have against the Contractor. If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of Town and the Contractor.
Town’s written response to the Claim, shall be submitted to the Contractor within 30 Days (if the Claim is less than $50,000, within 15 Days) after receipt of the additional documentation, or within a period of time no greater than that taken by the Contractor in producing the additional information or requested documentation, whichever is greater.
3.12.6 Meet and Confer. If the Contractor disputes Town’s written response, or Town fails to respond within the time prescribed, the Contractor may so notify Town, in writing, within 15 Days of receipt of Town’s response or the Town’s failure to respond, and demand an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand, Town shall schedule a meet and confer conference within 30 Days for settlement of the dispute.
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3.12.7 Mediation. Within 10 business days following the conclusion of the meet and confer conference, if the Claim or any portion of the Claim remains in dispute, Town shall provide the Contractor a written statement identifying the portion of the Claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the Claim shall be processed and made within 60 Days after Town issues its written statement. Any disputed portion of the Claim, as identified by the Contractor in writing, shall be submitted to nonbinding mediation, with Town and the Contractor sharing the associated costs equally. Town and Contractor shall mutually agree to a mediator within 10 business days after the disputed portion of the Claim has been identified in writing, unless the Parties agree to select a mediator at a later time.
3.12.7.1 If the Parties cannot agree upon a mediator, each Party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Each Party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator.
3.12.7.2 For purposes of this section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the Parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this section.
3.12.7.3 Unless otherwise agreed to by Town and the Contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced.
3.12.7.4 The mediation shall be held no earlier than the date the Contractor completes the Work or the date that the Contractor last performs Work, whichever is earlier. All unresolved Claims shall be considered jointly in a single mediation, unless a new unrelated Claim arises after mediation is completed.
3.12.8 Procedures After Mediation. If following the mediation, the Claim or any portion remains in dispute, the Contractor must file a claim pursuant to Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code. For purposes of those provisions, the running of the period of time within which a claim must be filed shall be tolled from the time the Contractor submits his or her written Claim pursuant to subdivision (a) until the time the Claim is denied, including any period of time utilized by the meet and confer conference or mediation.
3.12.9 Civil Actions. The following procedures are established for all civil actions filed to resolve Claims of $375,000 or less:
3.12.9.1 Within 60 Days, but no earlier than 30 Days, following the filing or responsive pleadings, the court shall submit the matter to non-binding mediation unless waived by mutual stipulation of both Parties or unless mediation was held prior to commencement of the action in accordance with Public Contract Code section 9204 and the terms of these procedures.
The mediation process shall provide for the selection within 15 Days by both Parties of a disinterested third person as mediator, shall be commenced within 30 Days of the submittal, and shall be concluded within 15 Days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court.
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3.12.9.2 If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1114.11 of that code. The Civil Discovery Act of 1986 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration.
3.12.9.3 In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible, be experienced in construction law, and (B) any party appealing an arbitration award who does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, also pay the attorney’s fees on appeal of the other party.
3.12.10 Government Code Claim Procedures.
3.12.10.1 This section does not apply to tort claims and nothing in this section is intended nor shall be construed to change the time periods for filing tort claims or actions specified by Chapter 1 (commending with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.5 of Title 1 of the Government Code.
3.12.10.2 In addition to any and all Contract requirements pertaining to notices of and requests for adjustments to the Contract Time, Contract Price, or compensation or payment for extra work, disputed work, claims and/or changed conditions, Contractor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the Town.
3.12.10.3 Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to adjustment of the Contract Time, Contract Price, or compensation or payment for extra work, disputed work, claims, and/or changed conditions have been followed by Contractor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor may not file any action against the Town.
3.12.10.4 A Government Code claim must be filed no earlier than the date the work is completed or the date the Contractor last performs work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved Claims known to the Contractor excepting only new unrelated Claims that arise after the Government Code claim is submitted.
3.12.11 Non-Waiver. Town’s failure to respond to a Claim from the Contractor within the time periods described in this section or to otherwise meet the time requirements of this section shall result in the Claim being deemed rejected in its entirety and shall not constitute a waiver of any rights under this section.
3.13 Loss and Damage. Except as may otherwise be limited by law, Contractor shall be responsible for all loss and damage which may arise out of the nature of the Work agreed to herein, or from the action of the elements, or from any unforeseen difficulties which may arise or be encountered in the prosecution of the Work until the same is fully completed and accepted by Town. In the event of damage proximately caused by an Act of God, as defined by Section 7105 of the Public Contract Code, the Town may terminate this Contract pursuant to the termination
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provisions in this Contract; provided, however, that the Town needs to provide Contractor with only one (1) day advanced written notice.
3.14 Indemnification.
3.14.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the Town, its officials, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor’s services, the Project or this Contract, including without limitation the payment of all expert witness fees, attorneys’ fees and other related costs and expenses.
Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Contractor’s indemnity obligation shall not apply to such loss or damage which is caused by the sole or active negligence or willful misconduct of the Town.
3.14.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of Town’s choosing and at Contractor’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against Town or its officials, employees, agents and authorized volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against Town or its officials, employees, agents and authorized volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse Town for the cost of any settlement paid by Town or its officials, employees, agents and authorized volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for Town’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse Town and its officials, employees, agents and authorized volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or termination of this Contract, and shall not be restricted to insurance proceeds, if any, received by the Town, its officials, employees, agents and authorized volunteers.
3.15 Insurance.
3.15.1 Time for Compliance. Contractor shall not commence Work under this Contract until it has provided evidence satisfactory to the Town that it has secured all insurance required under this section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the Town that the subcontractor has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the Town to terminate this Contract for cause.
3.15.2 Minimum Requirements. Contractor shall, at its expense, procure and maintain for the duration of the Contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder by Contractor, its agents, representatives, employees or subcontractors. Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Contract. Such insurance shall meet at least the following minimum levels of coverage:
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3.15.2.1 Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 00 01) OR Insurance Services Office Owners and Contractors Protective Liability Coverage Form (CG 00 09 11 88) (coverage for operations of designated contractor); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 00 01, code 1 (any auto); (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance; and (4) Builders’/All Risk: Builders’/All Risk insurance covering for all risks of loss, including explosion, collapse, underground excavation and removal of lateral support (and including earthquakes and floods if requested by the Town). Policies shall not contain exclusions contrary to this Contract.
3.15.2.2 Minimum Limits of Insurance. Contractor shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence and $4,000,000 general aggregate for bodily injury, personal injury and property damage; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; (3) Workers’ Compensation and Employer’s Liability: Workers’ compensation limits as required by the Labor Code of the State of California.
Employer’s Liability limits of $1,000,000 each accident, policy limit bodily injury or disease, and each employee bodily injury or disease; and (4) Builders’/All Risk: Completed value of the project.
Defense costs shall be available in addition to the limits. Notwithstanding the minimum limits specified herein, any available coverage shall be provided to the parties required to be named as additional insureds pursuant to this Contract.
3.15.2.3 Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the Town. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the Town evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Contract does not comply with these specifications or is canceled and not replaced, the Town has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the Town will be promptly reimbursed by Contractor or the Town may withhold amounts sufficient to pay premium from Contractor payments. In the alternative, the Town may suspend or terminate this Contract.
3.15.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements (amendments) on forms supplied or approved by the Town to add the following provisions to the insurance policies:
3.15.3.1 General Liability. (1) Such policy shall give the Town, its officials, employees, agents and volunteers additional insured status using ISO endorsements CG20 10 10 01 plus CG20 37 10 01, or endorsements providing the exact same coverage, with respect to the Work or operations performed by or on behalf of Contractor, including materials, parts or equipment furnished in connection with such work; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the Town, its officials, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any insurance or self-insurance
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maintained by the Town, its officials, employees, agents and volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it.
3.15.3.2 Automobile Liability. (1) Such policy shall give the Town, its officials, employees, agents and volunteers additional insured status with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by Contractor or for which Contractor is responsible; (2) all policies shall waive or shall permit Contractor to waive all rights of subrogation which may be obtained by the Contractor or any insurer by virtue of payment of any loss or any coverage provided to any person named as an additional insured pursuant to this Contract, and Contractor agrees to waive all such rights of subrogation; and (3) the insurance coverage shall be primary insurance as respects the Town, its officials, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of Contractor’s scheduled underlying coverage. Any insurance or self-insurance maintained by the Town, its officials, employees, agents and volunteers shall be excess of Contractor’s insurance and shall not be called upon to contribute with it in any way.
3.15.3.3 Workers’ Compensation and Employer’s Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the Town, its officials, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by Contractor.
3.15.3.4 All Coverages. Each insurance policy required by this Contract shall be endorsed to state that: (1) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the Town; and (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the Town, its officials, employees, agents and volunteers.
3.15.4 Builders’/All Risk Policy Requirements. The builders’/all risk insurance shall provide that the Town be named as loss payee. In addition, the insurer shall waive all rights of subrogation against the Town.
3.15.5 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the Town, its officials, employees, agents and volunteers.
3.15.6 Professional Liability Insurance. All architects, engineers, consultants or design professionals retained by Contractor shall also procure and maintain, for a period of five (5) years following completion of the Contract, errors and omissions liability insurance with a limit of not less than $1,000,000 per occurrence. This insurance shall name the Town, its directors, officials, officers, employees, agents and volunteers as additional and insureds with respect to Work performed, and shall otherwise comply with all requirements of this Section. Defense costs shall be paid in addition to the limits.
3.15.7 Deductibles and Self-Insurance Retentions. Any deductibles or selfinsured retentions must be declared to and approved by the Town. Contractor shall guarantee that, at the option of the Town, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Town, its officials, employees, agents and authorized volunteers; or (2) the Contractor shall procure a bond or other financial guarantee acceptable to
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the Town guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.
3.15.8 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VII, licensed to do business in California, and satisfactory to the Town. Exception may be made for the State Compensation Insurance Fund when not specifically rated.
3.15.9 Verification of Coverage. Contractor shall furnish Town with original certificates of insurance and endorsements effecting coverage required by this Contract on forms satisfactory to the Town. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms supplied or approved by the Town. All certificates and endorsements must be received and approved by the Town before work commences. The Town reserves the right to require complete, certified copies of all required insurance policies, at any time.
3.15.10 Subcontractors. All subcontractors shall meet the requirements of this Section before commencing Work. Contractor shall furnish separate certificates and endorsements for each subcontractor. Subcontractor policies of General Liability insurance shall name the Town, its officials, employees, agents and authorized volunteers as additional insureds using form ISO 20 38 04 13 or endorsements providing the exact same coverage. All coverages for subcontractors shall be subject to all of the requirements stated herein except as otherwise agreed to by the Town in writing.
3.15.11 Reporting of Claims. Contractor shall report to the Town, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the Work under this Contract.
3.16 Bond Requirements.
3.16.1 Payment Bond. If required by law or otherwise specifically requested by Town in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to Town concurrently with this Contract a Payment Bond in an amount required by the Town and in a form provided or approved by the Town. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the Town.
3.16.2 Performance Bond. If specifically requested by Town in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to Town concurrently with this Contract a Performance Bond in an amount required by the Town and in a form provided or approved by the Town. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the Town.
3.16.3 Bond Provisions. Should, in Town’s sole opinion, any bond become insufficient or any surety be found to be unsatisfactory, Contractor shall renew or replace the effected bond within (ten) 10 days of receiving notice from Town. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the Town, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Contract until any replacement bonds required by this Section are accepted by the Town. To the extent, if any, that the Total Contract Price is increased in
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accordance with the Contract, Contractor shall, upon request of the Town, cause the amount of the bond to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the Town. If Contractor fails to furnish any required bond, the Town may terminate the Contract for cause.
3.16.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in California Code of Civil Procedure Section 995.120, shall be accepted. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the Town.
3.17 Warranty. Contractor warrants all Work under the Contract (which for purposes of this Section 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 year (or the period of time specified elsewhere in the Contract 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 the Town of any defect in the Work or non-conformance of the Work to the Contract, commence and prosecute with due diligence all Work necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the Town 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 its 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 year period, commencing with the date of acceptance of such corrected Work.
Contractor shall perform such tests as the Town may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. 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 the Town, regardless of whether or not such warranties and guarantees have been transferred or assigned to the Town by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the Town. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the Town, the Town 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 the Town for any expenses incurred hereunder upon demand.
3.18 Employee/Labor Certifications.
3.18.1 Contractor’s Labor Certification. By its signature hereunder, Contractor certifies that he is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Work. A certification form for this purpose, which is attached to this Contract as Exhibit “D” and incorporated herein by reference, shall be executed simultaneously with this Contract.
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BB&K (2021) 21 SHORT FORM CONSTRUCTION CONTRACT
3.18.2 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
3.18.3 Verification of Employment Eligibility. By executing this Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subcontractors and sub-subcontractors to comply with the same.
3.19 Termination. This Contract may be terminated by Town at any time, either with our without cause, by giving Contractor three (3) days advance written notice. In the event of termination by Town for any reason other than the fault of Contractor, Town shall pay Contractor for all Work performed up to that time as provided herein. In the event of breach of the Contract by Contractor, Town may terminate the Contract immediately without notice, may reduce payment to Contractor in the amount necessary to offset Town’s resulting damages, and may pursue any other available recourse against Contractor. Contractor may not terminate this Contract except for cause. In the event this Contract is terminated in whole or in part as provided, Town may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. Further, if this Contract is terminated as provided, Town may require Contractor to provide all finished or unfinished documents, data, diagrams, drawings, materials or other matter prepared or built by Contractor in connection with its performance of this Contract.
Contractor shall be required to provide such document and other information within fifteen (15) days of the request.
3.20 General Provisions.
3.20.1 Town’s Representative. The Town hereby designates Andy Shoup, or his or her designee, to act as its representative for the performance of this Contract (“Town’s Representative”). Town’s Representative shall have the power to act on behalf of the Town for all purposes under this Contract. Contractor shall not accept direction or orders from any person other than the Town’s Representative or his or her designee.
3.20.2 Contractor’s Representative. Before starting the Work, Contractor shall submit in writing the name, qualifications and experience of its proposed representative who shall be subject to the review and approval of the Town (“′Contractor’s Representative”). Following approval by the Town, Contractor’s Representative shall have full authority to represent and act on behalf of Contractor for all purposes under this Contract. Contractor’s Representative shall supervise and direct the Work, using his best skill and attention, and shall be responsible for all construction means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Work under this Contract. Contractor’s Representative shall devote full time to the Project and either he or his designee, who shall be acceptable to the Town, shall be present at the Work site at all times that any Work is in progress and at any time that any employee or subcontractor of Contractor is present at the Work site. Arrangements for responsible supervision, acceptable to the Town, shall be made for emergency Work which may be required. Should Contractor desire to change its Contractor’s Representative, Contractor shall provide the information specified above and obtain the Town’s written approval.
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BB&K (2021) 22 SHORT FORM CONSTRUCTION CONTRACT
3.20.3 Contract Interpretation. Should any question arise regarding the meaning or import of any of the provisions of this Contract or written or oral instructions from Town, the matter shall be referred to Town’s Representative, whose decision shall be binding upon Contractor.
3.20.4 Anti-Trust Claims. This provision shall be operative if this Contract is applicable to California Public Contract Code Section 7103.5. In entering into this Contract to supply goods, services or materials, Contractor hereby offers and agrees to assign to the Town 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. Section 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 pursuant to the Contract. This assignment shall be made and become effective at the time the Town tender final payment to Contractor, without further acknowledgment by the Parties.
3.20.5 Notices. All notices hereunder and communications regarding interpretation of the terms of the Contract or changes thereto shall be provided by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid and addressed as follows:
CONTRACTOR:
HITT CONSTRUCTION COMPANY, INC.
ATTN: CHRIS HITT, PRESIDENT
13609 HITT RD.
P.O. BOX 638
APPLE VALLEY, CA 92308
TOWN:
TOWN OF APPLE VALLEY
14955 DALE EVANS PARKWAY
APPLE VALLEY, CALIFORNIA 92307
ATTN: TOWN ENGINEER
Any notice so given shall be considered received by the other Party three (3) days after deposit in the U.S. Mail as stated above and addressed to the Party at the above address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.20.6 Time of Essence. Time is of the essence in the performance of this Contract.
3.20.7 Assignment Forbidden. Contractor shall not, either voluntarily or by action of law, assign or transfer this Contract or any obligation, right, title or interest assumed by Contractor herein without the prior written consent of Town. If Contractor attempts an assignment or transfer of this Contract or any obligation, right, title or interest herein, Town may, at its option, terminate and revoke the Contract and shall thereupon be relieved from any and all obligations to Contractor or its assignee or transferee.
3.20.8 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
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BB&K (2021) 23 SHORT FORM CONSTRUCTION CONTRACT
3.20.9 Laws; Venue. This Contract shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Contract, the action shall be brought in a state or federal court situated in the County of San Bernardino, State of California.
3.20.10 Attorneys’ Fees. If either Party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all other costs of such action.
3.20.11 Counterparts. This Contract may be executed in counterparts, each of which shall constitute an original.
3.20.12 Successors. The Parties do for themselves, their heirs, executors, administrators, successors, and assigns agree to the full performance of all of the provisions contained in this Contract.
3.20.13 Solicitation. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Contract. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, Town shall have the right to terminate this Contract without liability.
3.20.14 Conflict of Interest. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Contract. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, Town shall have the right to rescind this Contract without liability. For the term of this Contract, no director, official, officer or employee of Town, during the term of his or her service with Town, shall have any direct interest in this Contract, or obtain any present or anticipated material benefit arising therefrom. In addition, Contractor agrees to file, or to cause its employees or subcontractors to file, a Statement of Economic Interest with the Town’s Filing Officer as required under state law in the performance of the Work.
3.20.15 Certification of License.
3.20.15.1 Contractor certifies that as of the date of execution of this Contract, Contractor has a current contractor’s license of the classification indicated below under Contractor’s signature.
3.20.15.2 Contractors are required by law to be licensed and regulated by the Contractors’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O.
Box 26000, Sacramento, California 95826.
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BB&K (2021) 24 SHORT FORM CONSTRUCTION CONTRACT
3.20.16 Authority to Enter Contract. Each Party warrants that the individuals who have signed this Contract have the legal power, right and authority to make this Contract and bind each respective Party.
3.20.17 Entire Contract; Modification. This Contract contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Contract may only be modified by a writing signed by both Parties.
3.20.18 Non-Waiver. None of the provisions of this Contract shall be considered waived by either party, unless such waiver is specifically specified in writing.
3.20.19 Town’s Right to Employ Other Contractors. Town reserves right to employ other contractors in connection with this Project or other projects. [Signatures on Next Page]
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BB&K (2021) 25 SHORT FORM CONSTRUCTION CONTRACT
SIGNATURE PAGE FOR CONSTRUCTION CONTRACT
BETWEEN THE TOWN OF APPLE VALLEY
AND HITT CONSTRUCTION COMPANY, INC.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
TOWN OF APPLE VALLEY
Approved:
By:
Douglas B. Robertson
Town Manager
ATTESTED:
By: _______________________________
Town Clerk
APPROVED AS TO FORM:
______________________________
Best Best & Krieger LLP
Town Attorney
HITT CONSTRUCTION COMPANY, INC.
By:
Its:
Printed Name:
By:
Its:
Printed Name:_________________________
____________________________________
Contractor’s License Number and
Classification
____________________________________
DIR Registration Number
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BB&K (20201 Exhibit A - 1 SHORT FORM CONSTRUCTION CONTRACT EXHIBIT “A”
SERVICES / SCHEDULE
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BB&K (2021) Exhibit B - 1 SHORT FORM CONSTRUCTION CONTRACT EXHIBIT “B”
PLANS AND SPECIFICATIONS
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BB&K (2021) Exhibit C - 1 SHORT FORM CONSTRUCTION CONTRACT EXHIBIT “C”
SPECIAL CONDITIONS
The Town has not made findings pursuant to Public Contract Code section 3400(b) regarding the use of specific materials, products, things, and/or services that must be utilized for the Work.
A. THE REQUIREMENTS: All work embraced herein shall be accomplished in accordance with the applicable portions of the Standard Specifications for Public Works Construction, 2021 Edition, and all subsequent supplements herein referred to as "Standard Specifications,” except as modified by these Special Conditions, Technical Specifications, and the Project Plans.
In addition to the above, the Contractor shall comply with the requirements of the following:
(a) Notice Inviting Sealed Bids
(b) Instructions to Bidders
(c) Proposal
(d) Bidder’s Bond to Accompany Proposal
(e) Information Required of Bidders
(f) Contract Agreement
(g) Performance Bond
(h) Payment Bond
B. DEFINITION OF TERMS: Wherever in the "Standard Specifications" terms are used, they shall be understood to mean and refer to the following:
Agency & Owner – Town of Apple Valley
Board - Town Council, Town of Apple Valley
Engineer - The Town Engineer, acting either directly or through the properly authorized agents, such agents acting within the scope of the particular duties entrusted to them.
Notice to contractors - Notice Inviting Sealed Bids
C. PROJECT PLANS: The location of the work, its general nature, extent, form and detail of the various features are listed as a part of these specifications.
D. SCOPE OF WORK: The Project consists of providing the necessary labor, equipment and materials for the removal of the existing restroom structure and installation of a new (contractor provided) prefabricated restroom in the same location near the southerly playground at James Woody Park. Delivery of the materials, site work, and installation of the restroom will be the responsibility of the Contractor.
E. NOTICE TO PROCEED: Upon award of this contract and signing the contract documents, the Town shall issue the Contractor a Notice to Proceed.
The work on this project shall commence within 10 calendar days of the Notice to Proceed and be completed within 30 Working Days. Working days will be counted from the date of the Notice to Proceed. Working days are defined by the Caltrans Working Days Calendar.
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BB&K (2021) Exhibit C - 2 SHORT FORM CONSTRUCTION CONTRACT The Town will not authorize any work to be done under these specifications before the contract agreement has been fully executed; and any work that is done by the contractor in advance of such time shall be considered as being done at his own risk and responsibility, and as a consequence will be subject to rejection by not having been done in the presence of an Engineer or Inspector.
In the event that the Town Engineer shall be of the opinion that the work is being inadequately or improperly executed in any respect, he/she may demand that the Contractor improve or change the execution of the work in such manner as to assure proper and timely completion.
F. UTILITIES: It is anticipated that the existing utilities will not interfere with the Contractor's construction operations. However, the Contractor shall exercise due care to ensure that these utility facilities are not damaged during his operations. When in doubt, the Contractor shall contact the utility concerned before proceeding further.
G. NOTIFICATION: The Contractor shall give written and reasonable notice to occupants or owners of property adjacent to the construction site at least forty-eight (48) hours prior to the beginning of construction in their respective areas. The notification shall include the date and time of street closures, parking and traffic access information and requirements, and precautionary information regarding the work to be done. A copy of all notifications shall be submitted to the Town Engineer for approval.
At least four (4) working days in advance of street closures, all emergency services, public transportation services, garbage collections services, and school bus services shall be notified by the Contractor in writing of the locations, time and date of the closure. In case of schedule changes, the emergency services, etc., shall be notified by telephone at least two (2) days in advance of the street closure.
H. ACCESS TO DRIVEWAYS: The Contractor shall notify in writing residents of property adjoining the location of the work at least forty-eight (48) hours before the start of construction on that street. The Contractor is responsible for posting "temporary no-parking" signs at least fortyeight (48) hours before using the parking lane for construction purposes. In the case of work requiring excavation of the roadway which may interfere with the use by residents or businesses of their driveways, suitable provisions shall be made by the Contractor at such time as the exigencies of construction may demand a temporary blocking of said driveways. Efforts shall be made by the Contractor to minimize the duration of said blocking and to notify the residents of this need well in advance. Further, the Contractor shall provide access to each residential or commercial establishment each evening.
I. STREET CLOSURES: No closure of any street shall be allowed unless prior written permission is obtained from the Town Engineer. If permission to close a street is granted, the Contractor is required to notify, in writing and at least four working days in advance, all emergency services, public transportation services, garbage collection services, and school bus services of the location, time and date of the closure.
J. CONFERENCE: The Contractor shall arrange a pre-construction meeting with the Town Engineer, which shall be held a minimum of five (5) working days prior to commencement of any work. The Contractor shall have his equipment available for inspection by the Town Engineer at the time of the pre-construction meeting.
K. PUBLIC CONVENIENCE AND SAFETY:
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BB&K (2021) Exhibit C - 3 SHORT FORM CONSTRUCTION CONTRACT (a) Attention is directed to Part 6 of the Standard Specifications and the California Manual on Uniform Traffic Control Devices (CA MUTCD) latest edition, published by the California Department of Transportation.
Full compensation for conforming to the requirements of Part 6 of the Standard Specifications, the above referenced CA MUTCD and these Special Provisions not otherwise provided for, shall be considered as included in the prices paid for the various contract items of work and no additional compensation will be allowed, therefore.
(b) WARNING AND PROTECTION DEVICES: The Contractor will be responsible for providing, placing and maintaining approved signs, barricades, pedestals, flashers, delineators, fences, barriers and flagmen where needed, and other necessary facilities in the vicinity of the construction area and where any dangerous conditions may be encountered as a result thereof, for the protection of the motoring public. The Contractor will not be allowed to proceed with the work until such time that a sufficient number of these protection devices have been delivered to the project site. Where parked vehicles are likely to interfere with the proposed work, the Contractor will supply and post at no less than 200-foot intervals on each side of the street "Temporary No Parking" signs twenty-four (24) hours before the start of construction and to report the time of posting to the Town's Police Department for the purpose of establishing "Tow Away" provisions. The Contractor shall be responsible for the removal of the temporary signs upon the completion of the work.
Should the Contractor appear neglectful or negligent in furnishing warning and protection devices as outlined above, the Town Engineer may direct attention to the existence of a hazard and the necessity of additional or different measures which shall be furnished and installed by the Contractor at his own expense, free of any cost to the Town. Should the Contractor refuse or fail to act in a timely manner to correct a hazardous condition, the Town Engineer may direct Town forces to provide the necessary protective and warning devices as deemed appropriate by the Town Engineer.
The cost accrued by the Town in connection therewith will be deducted from the Contractor's contract payment. Any action or inaction on the part of the Town in directing attention to the inadequacy of warning and protective measures or in providing additional protective and warning devices shall not relieve the Contractor from responsibility for public safety or abrogate his obligation to furnish and pay for these devices.
The Contractor shall submit his work schedule and traffic control plans to the Town Engineer for approval at the pre-construction conference. This schedule shall allow residents, on the streets to be improved, ample "on street" parking within an 800-foot (800’) distance from their homes.
L. SANITARY CONVENIENCE: Necessary sanitary facilities for the use of workman on the job shall be provided and maintained in an approved manner by the Contractor, properly secluded from public observation and in compliance with health ordinances and laws, and their use shall be strictly enforced by the Contractor.
M. CONSTRUCTION YARD: It shall be the Contractor's responsibility to locate any storage sites for materials and equipment well in advance of need. Any such sites, either located on public or private property, must be submitted in advance to the Town Engineer for review.
When storage sites are to be located upon private property, the Contractor shall adhere to the Town’s Municipal Code regarding Temporary Use Permits and submit to the Town Engineer
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BB&K (2021) Exhibit C - 4 SHORT FORM CONSTRUCTION CONTRACT copies of said permit and any conditions applicable thereto. In addition, the Contractor shall provide written approval from the record owner authorizing the use of the property by the Contractor.
N. CONSTRUCTION STAKING: The Contractor shall be required to provide any and all necessary construction survey staking required for the construction of the project. Unless a separate bid item is provided otherwise, full compensation for performing any needed construction survey staking, shall be considered as included in the prices paid for various contract items of work and no additional compensation will be allowed, therefore.
O. CONSTRUCTION METHODS:
General Requirements:
(a) Utilities: – The Contractor shall contact the affected utility companies for information regarding identification, location, and depth of all utilities. Contractor shall coordinate with utility companies for utility relocation, and shall allow utility companies’ construction crews to remove, relocate, and/or rebuild any and all necessary facilities within and around the job site. Contractor shall also schedule such work to be performed by others into his work schedule so as to complete the project within the allowable contract completion time. No additional compensation will be granted to the contractor for delays and/or other changes in the construction activities which are required as a result of the utility relocation work.
(b) Existing Surveying Monuments: – The Contractor’s Licensed Land Surveyor or Civil Engineer shall reference and protect all centerline monuments within the project limits. The survey monuments shall not be disturbed unless required by the construction of the proposed improvements. The Contractor shall coordinate the removal of any survey monuments with the Town Engineer. The re-establishing of the survey monuments once the construction has been completed will be the responsibility of the Contractor. All documentation, with regard to referencing all affected monuments, shall be submitted to the Town prior to commencement of construction and all documentation with regard to the re-establishing of all monuments shall be submitted to the Town prior to final approval of the project. (c) Preservation of Property: – Existing improvements in areas adjoining the property whereon demolition and removal is being performed shall be protected from injury or damage resulting from operations of the Contractor and the Contractor shall be responsible for such damage. In like manner any building, structure, tree, shrub, landscaping, or other item designated for preservation on the property where demolition and removal are being performed shall be similarly protected and preserved.
(d) Dust Control and Work Site Maintenance: – The Contractor shall provide and maintain a clean and public-safe work area and utilize dust laying equipment and methods as may be required to, control and mitigate airborne and migratory dust. All adjacent property shall be protected from annoyance or damage (including damage from dust) caused by construction operations, and failure to control such dust shall be cause for the Engineer to stop the work until said dust is controlled, and the Contractor shall have no recourse to collect from the Town for any loss of time or expense sustained by the contractor, due to such suspension of work. (e) Selected Materials: – Existing, native or on-site materials which have been excavated or generated by grading within the project limits, which meet the specifications for trench backfill, backfill, fill, engineered fill or other approved fill materials may be used to fulfill all or a portion of
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BB&K (2021) Exhibit C - 5 SHORT FORM CONSTRUCTION CONTRACT the requirements for such materials. No unsuitable material shall be incorporated into the work.
No additional compensation will be allowed for excavation, stockpiling, importing, removal or exporting, moisture conditioning, or placing selected materials within the scope of work. (f) Surplus Materials: – The Contractor shall furnish written consent from the owner of the property where it is intended to dispose of any surplus material. Surplus excavation, if any, shall become the property of the Contractor and shall be disposed of properly. (g) Furnishing and Applying Water: – Furnishing and applying water shall be considered as included in the bid price paid for the various contract items of work requiring such water and no additional compensation will be made, therefore.
(h) Compaction Testing: – The expense of the initial testing shall be borne by the Town. The expense of any re-testing required by the Town, if the initial compaction does not meet the required specifications shall be borne by the Contractor. All other material testing shall be borne by the Contractor.
(i) Construction Methods: – The Work shall consist of providing the necessary labor equipment, and materials for the application of Type II Microsurface and replacing thermoplastic striping on various streets within the Town of Apple Valley as specified in the Technical Specifications and as directed by the Town Engineer. Work shall include providing necessary temporary traffic control and surface preparation.
(j) Measurement and Payment: – Unless a separate bid item is provided otherwise the cost of all work described above in (a) through (i) shall be included in the contract unit prices bid for the various items of work requiring such work, and no additional compensation will be allowed.
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BB&K (2021) Exhibit D - 1 SHORT FORM CONSTRUCTION CONTRACT EXHIBIT “D”
CERTIFICATION
LABOR CODE - SECTION 1861
I, the undersigned Contractor, am aware of the provisions of Section 3700, et seq., of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of the Code, and I, the undersigned Contractor, agree to and will comply with such provisions before commencing the performance of the Work on this Contract.
HITT CONSTRUCTION COMPANY, INC.
By: _________________________
Signature
_________________________
Name (Print)
_________________________
Title (Print)
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BB&K (2021) Exhibit G - 1 SHORT FORM CONSTRUCTION CONTRACT EXHIBIT “E”
PUBLIC WORKS CONTRACTOR REGISTRATION CERTIFICATION
Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. See http://www.dir.ca.gov/PublicWorks/PublicWorks.html for additional information.
No bid will be accepted nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work.
Contractor hereby certifies that it is aware of the registration requirements set forth in Labor Code sections 1725.5 and 1771.1 and is currently registered as a contractor with the Department of Industrial Relations.1
Name of Contractor:
DIR Registration Number:
DIR Registration Expiration:__________________________
Small Project Exemption: _____ Yes or _____ No
Unless Contractor is exempt pursuant to the small project exemption, Contractor further acknowledges:
1. Contractor shall maintain a current DIR registration for the duration of the project.
2. Contractor shall include the requirements of Labor Code sections 1725.5 and 1771.1 in its contract with subcontractors and ensure that all subcontractors are registered at the time of bid opening and maintain registration status for the duration of the project.
3. Failure to submit this form or comply with any of the above requirements may result in a finding that the bid is non-responsive.
Name of Contractor:____________________
Signature:
Name and Title:
Dated:
1 If the Project is exempt from the contractor registration requirements pursuant to the small project exemption under Labor Code Sections 1725.5 and 1771.1, please mark “Yes” in response to “Small Project Exemption.”
Town Council Agenda Report
Date: June 27, 2023
To: Honorable Mayor and Town Council
Subject: AWARD OF CONTRACT FOR DESIGN OF CAPTAIN JOSEPH MCCONNELL JR., USAF PARK
From: Douglas Robertson, Town Manager
Submitted by: Orlando Acevedo, Assistant Town Manager
Parks and Recreation
Budgeted Item: Yes No N/A
RECOMMENDED ACTION
Award a Professional Services Agreement to Verde Design, Inc. for the Captain Joseph McConnell Jr, USAF Park Project subject to “Approval as to Form” by the Town Attorney and “Approval as to Content” by the Town Manager.
BACKGROUND
The Town of Apple Valley was awarded an $8,494,127.00 Statewide Park Development and Community Revitalization Program (Prop 68) grant from the State of California Department of Parks and Recreation to design, engineer, and reconstruct the southerly portion of the park located to the east of the property now serving as the Apple Valley Unified School District offices. The park was previously used as a sports complex for soccer and other recreational activities and was once a part of Apple Valley Junior High School. The sports fields were abandoned and have fallen into disrepair. On June 13, 2023, Council unanimously passed a resolution to name the new park Captain Joseph McConnell Jr, USAF Park. The new park will be home to the first Veterans’ Memorial in the Town and will also include, at minimum, the following amenities:
Running track with synthetic surface
Football field with lighting
Baseball field
Soccer fields
All-abilities inclusive playground
Walkways
Restroom
Small and large picnic shelters
Restrooms
Dog park
ANALYSIS
On May 26, 2023, the Town received seven proposals for the subject project. Upon receipt, the proposals were reviewed and scored by a selection panel using the following criteria:
Project understanding and approach
Project Manager’s experience with similar kinds of work Experience of assigned project team members and sub-consultants Relevant project examples
Capability of developing innovative and advanced techniques Completenes and overall quality of submission
The review team interviewed the top four candidates on June 13, 2023, and Verde Design, Inc. was unanimously selected for the following reasons:
Verde Design, Inc. displayed a clear understanding of the need for strong communication to ensure the Town’s needs were clearly met. Understanding of the project area and depth of research conducted prior the interview;
Demonstrated ability to coordinate with outside agencies to ensure timely project completion.
Strength of the project team members and balance of creativity, engineering, and scientific decision making tools;
With a consultant selected, staff reviewed their cost proposal. Verde Design, Inc.’s estimated costs for this project is $587,170.00 which is within the estimated grant budget.
For all the reasons mentioned above, staff recommends that Verde Design, Inc.. be awarded a Professional Services Agreement for the Captain Joseph McConnell Jr, USAF Park.
FISCAL IMPACT
Verde Design, Inc.’s proposed fee for the Captain Joseph McConnell Jr, USAF Park Project is $587,170.00. The grant includes up to $8,494,127.00 in reimbursable funds received from the California Department of Parks and Recreation.
ATTACHMENTS
A. Initial Conceptual Design showing project location
B. Professional services Agreement
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TOWN OF APPLE VALLEY
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this 27th day of June, 2023, by and between the Town of Apple Valley, a municipal corporation organized under the laws of the State of California with its principal place of business at 14955 Dale Evans Parkway, Apple Valley, California 92307 (“Town”) and Verde Design, Inc., a corporation, with its principal place of business at 3685 Main Street, Suite 350, Riverside, CA 92501 ("Consultant"). Town and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the Town on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing landscape architecture, engineering, and design services to public clients, is licensed in the State of California, and is familiar with the plans of Town.
2.2 Project.
Town desires to engage Consultant to render such professional services for the Joseph McConnell Jr., USAF Park project ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the Town all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional landscape architecture, engineering, and design services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from June 27, 2023 to December 31, 2025, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.
3.2 Fees and Payments
3.2.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth
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in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed Five Hundred Eighty-Seven Thousand One Hundred Seventy Dollars ($587,170.00) without written approval of the Town Council or Town Manager as applicable.
Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.2.2 Payment of Compensation. Consultant shall submit to Town a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice.
Town shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges. If the Town disputes any of Consultant's fees, the Town shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. Payment shall not constitute acceptance of any Services completed by Consultant. The making of final payment shall not constitute a waiver of any claims by the Town for any reason whatsoever.
3.2.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by Town, or included in Exhibit "C" of this Agreement.
3.2.4 Extra Work. At any time during the term of this Agreement, Town may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by Town to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the Town.
3.2.5 Rate Increases. In the event that this Agreement is renewed pursuant to Section 3.1.2, the rate set forth in Exhibit “C” may be adjusted each year at the time of renewal as set forth in Exhibit “C.”
3.3 Responsibilities of Consultant.
3.3.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. Town retains Consultant on an independent contractor basis and not as an employee. Any personnel performing the Services on behalf of Consultant shall not be employees of Town and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
3.3.2 Schedule of Services. Consultant shall perform the Services in a prompt and timely manner and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of Town, Consultant shall provide a more detailed schedule of anticipated performance
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to meet the Schedule of Services.
3.3.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of Town.
3.3.4 Substitution of Key Personnel. Consultant has represented to Town that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of Town. In the event that Town and Consultant cannot agree as to the substitution of key personnel, Town shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows: Mark Baginski, Principal in Charge, Chris Giannini, Associate, Senior Project Manager.
3.3.5 Town's Representative. The Town hereby designates Andy Shoup, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("Town's Representative"). Town's Representative shall have the power to act on behalf of the Town for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Services or change the total compensation due to Consultant under this Agreement. The Town Manager shall be authorized to act on Town's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Consultant's total compensation subject to the provisions contained in Section 3.2 of this Agreement. Consultant shall not accept direction or orders from any person other than the Town Manager, Town's Representative or his/her designee.
3.3.6 Consultant's Representative. Consultant hereby designates Mark Baginski, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.3.7 Coordination of Services. Consultant agrees to work closely with Town staff in the performance of Services and shall be available to Town's staff, consultants and other staff at all reasonable times.
3.3.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Consultant shall perform, at its own cost and expense and without reimbursement from the Town, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its subconsultants who is determined by the Town to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any
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employee who fails or refuses to perform the Services in a manner acceptable to the Town, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3.3.9 Period of Performance.
3.3.9.1 Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be separately agreed upon in writing by the Town and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Performance Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the Town will suffer damage.
3.3.9.2 Neither Town nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s performance and is one or more of the following: (1) Acts of God or other natural disasters; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Services); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of a public agency applicable to the Services and Agreement.
3.3.9.3 Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement.
3.3.9.4 Delays shall not entitle Consultant to any additional compensation regardless of the Party responsible for the delay. Notwithstanding the foregoing in this section, the Town may still terminate this Agreement in accordance with the termination provisions of this Agreement.
3.3.10 Laws and Regulations; Employee/Labor Certification. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement.
All violations of such laws and regulations shall be grounds for the Town to terminate the Agreement for cause.
3.3.10.1 Employment Eligibility; Consultant. Consultant certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subconsultants and sub-subconsultants to comply with the same. Consultant certifies that it has not committed
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a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement.
3.3.10.2 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of Town's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.3.10.3 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Consultant shall indemnify Town against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
3.3.10.4 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant 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.
3.3.11 Insurance.
3.3.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the Town that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the Town that the subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the Town to terminate this Agreement for cause.
3.3.11.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.
(A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact equivalent, with limits of not less than $1,000,000 per occurrence and no less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for
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contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement. (B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $1,000,000 combined limit for each occurrence. (C) Workers' Compensation: Workers' Compensation
Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. (D) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $1,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least five (5) years from termination or expiration of this Agreement.
3.3.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the Town to add the following provisions to the insurance policies:
(A) Commercial General Liability: (1) Additional Insured: The Town, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.
Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the Town except ten (10) days shall be allowed for non-payment of premium. (B) Automobile Liability. (1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the Town except ten (10) days shall be allowed for nonpayment of premium. (C) Professional Liability (Errors & Omissions): 1) Cancellation:
Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the Town except ten (10) days shall be allowed for non-payment of premium. (2) Contractual Liability Exclusion Deleted: This insurance shall include contractual liability applicable to this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend.
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(D) Workers' Compensation: (1) Cancellation: Required
insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the Town except ten (10) days shall be allowed for non-payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the Town, its officials, officers, employees, agents, and volunteers.
3.3.11.4 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the Town, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
3.3.11.5 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the Town, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against Town, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
3.3.11.6 Deductibles and Self-Insured Retentions. Any deductible or selfinsured retention must be approved in writing by the Town and shall protect the Town, its officials, officers, employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
3.3.11.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the Town, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the Town for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the Town. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the Town evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
3.3.11.8 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.3.11.9 Enforcement of Agreement Provisions (non estoppel).
Consultant acknowledges and agrees that actual or alleged failure on the part of the Town to
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inform Consultant of non-compliance with any requirement imposes no additional obligation on the Town nor does it waive any rights hereunder.
3.3.11.10 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.
3.3.11.11 Additional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the Town, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Town has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Town will be promptly reimbursed by Consultant or Town will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Town may cancel this Agreement.
(C) The Town may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (D) Neither the Town nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
(E) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the Town and shall not preclude the Town from taking such other actions available to the Town under other provisions of the Agreement or law.
(F) Consultant shall report to the Town, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
3.3.11.12 Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the Town, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the Town, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to
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commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the Town.
3.3.12 Water Quality Management and Compliance. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the Town’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority.
Consultant must additionally comply with the lawful requirements of the Town, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges. Town may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in this section, or any other relevant water quality law, regulation, or policy.
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Town shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the Town, its officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the DIR against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be
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Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the Town. Consultant shall defend, indemnify and hold the Town, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the DIR against Consultant or any subconsultant.
3.4.3 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5 Accounting Records.
3.5.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of Town during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.6 General Provisions.
3.6.1 Termination of Agreement.
3.6.1.1 Grounds for Termination. Town may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to Town, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause.
3.6.1.2 Effect of Termination. If this Agreement is terminated as provided herein, Town may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
3.6.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, Town may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.6.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Consultant: Verde Design, Inc.
[3685 Main Street, Suite 350
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Riverside, CA 92501
ATTN: Mark Baginski, Principal
Town: Town of Apple Valley
14955 Dale Evans Parkway
Apple Valley, California 92307
ATTN: Andy Shoup
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.6.3 Ownership of Materials and Confidentiality.
3.6.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for Town to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of Town, and shall not be used in whole or in substantial part by Consultant on other projects without the Town’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to Town reproducible copies of all Documents & Data, in a form and amount required by Town. Town reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by Town at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to Town upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to Town any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to Town upon the payment of actual reasonable duplication costs.
Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify Town and provide Town with the opportunity to obtain the documents.
3.6.3.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that Town is granted a non-exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the Town.
3.6.3.3 Right to Use. Town shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Consultant shall be at
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Town’s sole risk. If Town uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re-use of the Documents & Data on such other project. Consultant shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the Town upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.
3.6.3.4 Indemnification. Consultant shall defend, indemnify and hold the Town, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by Town of the Documents & Data, including any method, process, product, or concept specified or depicted.
3.6.3.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of Town, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use Town's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of Town.
3.6.3.6 Confidential Information. The Town shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the Town's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the Town shall notify Consultant of its intention to release Proprietary Information.
Consultant shall have five (5) working days after receipt of the release notice to give Town written notice of Consultant's objection to the Town's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the Town, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. Town shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Consultant fails to fully indemnify, defend (with Town's choice of legal counsel), and hold Town harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that Town release such information.
3.6.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
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3.6.5 Indemnification.
3.6.5.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of Town’s choosing), indemnify and hold the Town, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the Town. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the Town, its officials, officers, employees, agents, or volunteers.
3.6.5.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.6.6 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.6.7 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the Town. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the Town.
3.6.8 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.6.9 Town's Right to Employ Other Consultants. Town reserves right to employ other consultants in connection with this Project.
3.6.10 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
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3.6.11 Assignment; Subcontracting. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the Town, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Consultant shall not subcontract any portion of the Services required by this Agreement, except as expressly stated herein, without prior written approval of Town.
Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
3.6.12 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to Town include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.6.13 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.6.14 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.6.15 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.6.16 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.6.17 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the Town’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, Town shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of Town, during the term of his or her service with Town, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.6.18 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party
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warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.6.19 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.6.20 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination. [SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE TOWN OF APPLE VALLEY
AND VERDE DESIGN, INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
TOWN OF APPLE VALLEY
By:
Doug Robertson
Town Manager
ATTEST:
By:
La Vonda M-Pearson
Director of Government Services/Town
Clerk
APPROVED AS TO FORM:
By:
Thomas A. Rice, Best Best & Krieger,
LLP
Town Attorney
VERDE DESIGN, INC.
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Exhibit “A-I-1”
EXHIBIT "A"
SCOPE OF SERVICES
22 2. SCOPE AND SERVICES
Verde Design is a landscape architecture and civil
engineering firm that specializes in sports facility
development for Public Parks, K-12, Community College
and University facilities. As a result of our experience in the education market, we have extensive experience with sports facilities, including competitive running tracks with all-weather surfacing. Track design is an area of expertise for Verde Design and sets us apart from our competitors for this project.
We understand that the Town is open to the use of Preengineered or Pre-Manufactured buildings and shelters. We have found that there is cost efficiency in using this process without sacrificing the ability to customize and provide structures and buildings that have unique architectural style that is appropriate for each project. The structures are designed according to all current building and health codes. Our teaming partners are licensed professionals and will provide building floorplan layouts and elevations for review and approval. We are familiar with the required
process for this method of delivery and have used it on many other public projects with great success. As a result, full engineering or architectural drawings are deferred submittals that will be provided by the manufacturer once a purchase order has been issued.
We will work closely with the Town’s project manager, staff, and stakeholders during the design process to successfully complete the project goals and protect the interest of the Town.
Deliverables will include a conceptual designs, schematic design, construction drawings, specifications and estimates of probable construction cost, bid support, construction administration and record drawings.
PROJECT APPROACH
Our approach to the project and team leadership begins with clarity of expectations and proper documentation throughout the design process. You will note in our scope of work below our “Submittal Book” document. We begin developing this book at the beginning of the project when we establish the Basis of Design Document (summary of design intent) as a programming tool. The Submittal Book will provide clarity of expectations and communication for all members of the design team and will include other documents such as material cutsheets, updated cost estimates and schedules. As each deliverable is submitted, the Submittal Book is updated. The Book also includes tracking of critical questions and answers from the design team and Town that are critical to design decisions or design changes that may occur during the design
PALMDALE ACADEMY CHARTER SCHOOL PALMDALE
Exhibit A
A-2
23 2. SCOPE AND SERVICES
process. This “Design Log” serves as a record as to why decisions were made during the collaborative process. We encourage Town staff to review this Submittal Book as well as the plans, specifications, and estimates of probable cost documents to ensure that the collaborative design process is being documented accurately.
Our internal team scheduling and submittal milestone
dates are sent to production team and subconsultant team members as calendar invites so that we all have clear
understanding of the determined submittal dates. . We
also use this system to ensure we receive internal and
subconsultant information early to allow for internal quality control processes to occur along with packaging of the
materials to arrive on time to your team for review. If there are challenges with delivery dates either from the design team or client perspective, we discuss those issues and if scheduling changes are necessary.
As we approach milestone delivery dates, we also have
calendar dates scheduled for all team members for internal QA/QC review. This is typically 2-3 weeks prior to the
submittal date to the Town or City and allows our sub
consultants to review their own work as we review ours
however, it also allows us as the prime consultant to review our subconsultant’s work so that we can identify any items that may need to be addressed prior to the formal submittal to the client. Typically, this review process internally includes licensed professionals that have NOT been working on
the project so that personnel that are not familiar with the project can look at it from a fresh perspective. We have found that this review process provides great results in identifying concerns that must be addressed prior to the milestone submittal.
At Verde Design, we use Bluebeam review to set up “studio sessions” where internal plan reviewers can access the
drawings and provide comments in real time, even if others are also reviewing the documents at the same time. This allows everyone to see the progress of comments and
address them more efficiently. We can also invite the Town to join the studio and provide comments in that way as well if it is efficient for them to do so.
SCOPE OF WORK
TASK 1: PROJECT KICK-OFF AND DATA
COLLECTION
A. Kick-Off Meeting: Meet with project stakeholders /
Town staff to recap and refine the project intent, scope, project budget, schedule, and milestones.
1. Identification of roles and responsibilities of consultant team, and Town staff.
2. Review the project’s goals and objectives with staff.
3. Establish availability of files, maps, reports, and inhouse documentation.
4. Discuss Town requirements, standards, and regulations.
B. Provide topographical survey using vertical datum
NAVD88, that includes the limits of scope of work for
the project site, including areas immediately adjacent to limits of work and existing right of way. This survey will include 1-foot contours. Existing trees, visible utilities, irrigation valve boxes, structures, fencing, recorded easements, and other physical improvements will be included.
The Survey documents will be provided in AutoCAD
format and will serve as the bases for our design improvement drawings. Copies of the topographic survey files and field notes will be provided to the Town.
C. Review existing topo documents, record, and utility
plans as well as other background data and visit the
sites to verify/compare with existing conditions as well as to familiarize ourselves with existing conditions and improvements.
D. Underground utility scanning study and potholing.
E. Coordinate and send utility letters/correspondence
with affected utility companies to request plans regarding existing improvements and prior rights improvements and to analyze existing and proposed improvements
relative to conflicts. Utility research and potential conflicts will be documented.
F. Geotechnical investigation.
1. Structural and percolation borings etc.
Exhibit A
A-3
24 2. SCOPE AND SERVICES
TASK 2: CONCEPTUAL DESIGN
A. Using the topographic survey document as our site
plan we will prepare two (2) unique conceptual design
alternatives for the park for review and comment with
the intent that the Town will select one final conceptual plan. Concepts will include at a minimum, all park elements as shown in the project RFP.
B. Once the Town has selected a preferred conceptual
design, we will provide a schematic design plan (30%
design level) that will include preliminary grading, utilities, finishes and amenities.
C. Prepare estimates of probable construction costs for the two alternative conceptual designs.
D. Consultant will participate in three (3) meetings during this phase.
E. Basis of Design Document:
1. Once a final design has been selected, we will
prepare a “Basis of Design” document establishing/summarizing the project scope, programming, and design criteria. The Basis of Design document
will include size / capacity, quantity, materials, and
architectural style as well as deferred submittals
and direct purchase options for cost savings. Our
fee assumes deferred submittals for prefabricated
and/or pre-engineered furnishings once a purchase
order has been issued. This typically occurs once
the contractor has contracted with the manufacturer unless the Town enters into a direct purchase agreement prior to commencement of construction.
F. Preliminary Estimate of Probable Cost:
1. Revised estimate of probable construction cost will
be prepared for the Schematic Plan.
TASK 3: CONSTRUCTION DOCUMENTS
Construction document submittals will occur at 65%, 95% and 100% complete milestones. We will provide the Town
with electronic copies in AutoCAD and PDF formats as
requested. Drawings will comply with adopted Federal,
State, and local laws, ordinances and codes and will be developed using AutoCAD Version 2022 and documents will be developed using Microsoft Office Suite.
A. Our Construction Drawings packages will include the
following plan sheets below.
1. Cover sheet.
2. Existing Conditions Plan.
3. Demolition Plan.
4. Erosion Control Plan.
5. Grading Plan.
6. Drainage Plan.
7. Utility Plan.
8. Horizontal Control Plan.
9. Materials and Detail Reference Plans (site Plan).
10. Irrigation Plan.
11. Planting Plan.
12. Electrical Plans and Details.
13. Construction Details and Enlargements.
14. Hydrology/hydraulic study – WQMP.
15. SWPPP.
B. All improvements within scope of work will comply with ADA and State Accessibility requirements and shall
comply with Town of Apple Valley Design Guidelines,
Standards and Specifications.
MEMORY LANE PARK, SANTA ANA (DESIGNED AND
MANAGED BY CHRIS WHILE WITH A PRIOR FIRM)
Exhibit A
A-4
25 2. SCOPE AND SERVICES
C. Technical specifications will be set up in CSI format utilizing Town standards and will also reference Standard Specifications for Public Works Construction.
We understand that the Town will provide their own
updated “front-end” and general conditions documents
(Divisions 00 and 01) to align with the project. Technical specifications will be provided relative to the improvement plans.
D. Attendance at three (3) project Meetings during the
construction drawing phase will be provided. Additional informal phone calls/discussions with the Town’s project manager are also included throughout the design process.
E. A Submittal book which will supplement the plans and specifications will be provided and will include:
1. Estimate of Probable Construction Cost updates.
2. Material Reference and Product Catalog Cut
Sheets for all proposed elements if not already
provided within construction drawing sheets.
3. Design Log /List of design process questions &
directives.
4. Basis of Design document.
F. Consultant shall adhere to the GIS design criteria noted in the RFP to ensure appropriate integration into the
Town’s GIS network.
Deliverables: Hard copies and/or e-mailed or Box
download digital copies of drawings noted above.
Construction drawings and specifications will be bid ready.
The CD plan sheets will be drawn no smaller than 1”= 20’ scale and will be subject to agency review.
TASK 4: BIDDING SUPPORT
A. Attend and assist in Pre-bid Meeting/ Site walk.
B. Respond to Bidder’s questions/RFIs.
C. Write addendums in response to bidder questions and
design changes.
D. Assist in reviewing and analyzing Bids. Recommend approval of lowest responsive bid for Town Consideration and award.
TASK 5: CONSTRUCTION SUPPORT/
RECORD DRAWINGS
A. Attend one (1) pre-construction meeting, prepare meeting minutes.
B. Respond to construction questions, request for information, and provide clarifications.
C. Review submittals and shop drawings.
D. Provide design directives or Architect’s Supplemental Information (ASI) if necessary.
E. Review price requests and change orders.
F. Attend milestone construction meetings and site visits.
We are including seven (7) milestone construction/site
observation meetings.
G. Attend weekly PDT meetings throughout the construction phase. We are anticipating a construction phase of roughly 7 months therefore are assuming roughly 28 PDT
mtgs. As noted in the RFP we anticipate that these will primarily be done virtually.
H. Review of conformance survey for sports fields.
I. Final field and site punch walk.
J. Review contractor as-built red lined plans and setup a CAD file of the plans and provide As-built / Record
drawings. Original record drawings will be provided
in both electronic files (CAD and PDF) as well as hard
copies if requested. NOTE - As we provide RFI responses and/or field directive responses, we update our CAD files during construction.
SPECIAL PROVISIONS
A. Services or information requested from The Town:
1. Improvement plans or available as-builts for existing improvements and utilities servicing the site such as storm drain, water, sewer, electrical and
irrigation plans.
2. On-going development plans that may be related
to the project site.
3. Applicable Town standards and guidelines.
4. Town standard specifications, details, and electronExhibit A
A-5
26 2. SCOPE AND SERVICES
ic title block or logos.
5. Inspection and testing during construction.
6. Property Title Reports to establish property boundaries and/or easements if applicable.
7. Daily construction management of the project
construction.
8. Town signed bid set copies for project team (PDF is
acceptable).
B. For purposes of clarity, the following items are specifically not included in the Scope of Services because they were not expressly requested in the RFP however
additional services and relative fees can be provided
upon request:
1. Meetings other than those listed.
2. Improvements outside the limits of work.
3. 3D-colored renderings or presentations beyond
what is included in the Scope of Work.
4. Permit fees associated with the project.
5. Inspection and testing required during construction.
6. Design for areas not identified in the project understanding.
7. Legal Descriptions and assessments.
8. Drainage Design within public ROW areas or new
Town/Public Utility systems.
9. Construction Staking.
10. Mapping Services not specifically noted such as
private easements, quit claims, ALTA’s, ROW dedications, record of survey and property boundary survey.
11. Separate bid packages or construction phasing sequences implementation beyond what is proposed.
12. Significant design revision requests at the 65% CD
submittal and beyond.
13. Street Improvement Plans.
14. CEQA or other environmental studies/reports.
15. Public street lighting, traffic control, and offsite utilities.
KEZAR STADIUM TRACK, SAN FRANCISCO
Exhibit A
A-6
Exhibit “B”-1
EXHIBIT "B"
SCHEDULE OF SERVICES
27 3. TIME SCHEDULE
PROJECT SCHEDULE
The preliminary draft project schedule below aligns with the scope and process, as described in our approach. At the kick-off meeting, we will review the overall project scope, schedule, identify critical path items, discuss any project constraints, confirm milestones events and funding deadlines. A revised project schedule that incorporates actual dates based upon the Town’s NTP will then be prepared in Microsoft Project for consideration and approval.
TASK 1
NTP / Contract establishment/signing/approvals RFP notes June 13, 2023 Kick-off Meeting / Site Investigation 6/20/23
Data Gathering, Research and Analysis 6/14/23 -7/4/23
Topographic Survey 6/20/23- 7/18/23
Geotechnical Investigation Report 6/21/23- 7/26/23
TASK 2
Conceptual Plan Options 6/21/23 - 7/18/23
Estimate of Probable Construction Cost 7/11/23 - 7/18/23 Town Review and Comment 7/19/23 - 7/26/23
30% Schematic Design 7/27/23 - 8/23/23
Town Review and Comment 8/24/23 – 9/4/23
TASK 3
Construction PSE’s 65% 9/5/23 - 11/7/23
Town Review 11/8/23 – 11/22/23
Construction PSE’s 95% 11/23/23 -2/1/24
Town Review 2/2/24 – 2/22/24
Final 100% PSE’s 2/23/24 – 3/15/24
TASK 4
Bid Advertisement 3/18/24 – 4/8/24
Bid Opening 4/8/24
Bid Award and NTP 4/15/24
TASK 5
Construction Begins 5/6/24
INDIVIDUAL TASKS SEQUENCING & DURATION
Exhibit B
C-2
Exhibit “C”-1
EXHIBIT "C"
COMPENSATION
In the event that this Agreement is renewed pursuant to Section 3.1.2, the rates set forth above may be increased or reduced each year at the time of renewal, but any increase shall not exceed the Consumer Price Index, All Urban Consumers, Riverside-San Bernardino-Ontario.]
Exhibit C
C-2
Exhibit C
C-3
Town Council Agenda Report
Date: June 27, 2023
To: Honorable Mayor and Town Council
Subject: ACCEPT THE FINAL MAP FOR PARCEL MAP NO. 20369
APPLICANT: DOUG VANCE
From: Douglas Robertson, Town Manager
Submitted by: Mike Podegracz, Town Engineer
Engineering
Budgeted Item: Yes No N/A
RECOMMENDED ACTION
It is recommended that the Town Council accept the Final Map for Parcel Map No. 20369.
BACKGROUND
On February 2, 2022, the Planning Commission approved Tentative Parcel Map No. 20369. The applicant has complied with all conditions of approval placed on the Tentative Parcel Map. This final parcel map subdivides a 2.53-acre property into two (2) parcels.
The site is located on the east side of Temecula Road, 660 feet south of Cholena Road.
ATTACHMENTS
A. Location Map
B. Final Map
C. Conditions of Approval
LOCATION MAP
Town Council Agenda Report
Date: June 27, 2023
To: Honorable Mayor and Town Council
Subject: ACCEPT THE FINAL MAP FOR PARCEL MAP NO. 20571
APPLICANT: DOUG VANCE
From: Douglas Robertson, Town Manager
Submitted by: Michael Podegracz, Town Engineer
Engineering
Budgeted Item: Yes No N/A
RECOMMENDED ACTION
It is redcommended that the Town Council accept the Final Map for Parcel Map No. 20571
BACKGROUND
On August 17, 2022, the Planning Commission approved Tentative Parcel Map No. 20571. The applicant has complied with all conditions of approval placed on the Tentative Parcel Map. This final parcel map subdivides a 10-acre property into four (4) parcels and a remainder. The site is located at the southeast corner of Central Road and Temecula Road.
ATTACHMENTS
A. Location Map
B. Final Map
C. Conditions of Approval
Location Map
August 18, 2022
Altec Engineering
19531 Highway 18
Apple Valley, CA 92307
Subject: Tentative Parcel Map No. 20571
Dear Applicant:
At its August 17, 2022, regularly scheduled meeting, the Planning Commission approved the above-mentioned proposal to create a Tentative Parcel Map to subdivide 10- acres into four (4), one-acre parcels and a remainder parcel in the Residential Equestrian (REQ) District located at the southeast corner of Cholena & Temecula Roads This action of the Town of Apple Valley shall not be final for a period of ten (10) days from the date of this letter to allow for the filing of any appeal pursuant to the Town’s Development Code, Section 9.12.250, with the Town Clerk of the Town of Apple Valley.
This approval shall expire on August 17, 2025, unless the construction has substantially commenced in accordance with the Development Code.
Enclosed you will find the conditions as approved by the Planning Commission and as accepted by you at the public hearing. If you have any questions on this matter, please contact at (760) 240-7200 ext. 7202, [email protected]. Town offices are open Monday through Thursday between 7:30 a.m. and 5:30 p.m., and alternating Fridays between 7:30 a.m. and 4:30 p.m. (closed the subsequent Fridays).
Sincerely,
Amanda Malone
Assistant Planner
Tentative Parcel Map No. 20571
1 TOWN OF APPLE VALLEY
CONDITIONS OF APPROVAL
Tentative Parcel Map No. 20571
Please note: Many of the suggested Conditions of Approval presented herewith are provided for informational purposes and are otherwise required by the Municipal Code.
Failure to provide a Condition of Approval herein that reflects a requirement of the Municipal Code does not relieve the applicant and/or property owner from full conformance and adherence to all requirements of the Municipal Code.
Planning Division Conditions of Approval
P1. This tentative subdivision shall comply with the provisions of the State Subdivision Map Act and the Town Development Code. This tentative approval shall expire three (3) years from the date of approval by the Planning Commission/Town Council. A time extension may be approved in accordance with the State Map Act and Town Ordinance, if an extension application is filed and the appropriate fees are paid thirty (30) days prior to the expiration date. The Tentative Parcel Map becomes effective ten (10) days from the date of the decision unless an appeal is filed as stated in the Town’s Development Code.
P2. Prior to approval of the Final Map, the following agencies shall provide written verification to the Planning Division that all pertinent conditions of approval and applicable regulations have been met:
a. Apple Valley Fire Protection District
b. Apple Valley Public Works Division
c. Apple Valley Engineering Division
d. Apple Valley Planning Division
e. Liberty Utilities
P3. The filing of a Notice of Exemption requires the County Clerk to collect a documentary handling fee of fifty dollars ($50.00). The fee must be paid in a timely manner in accordance with Town procedures. The check shall be delivered to the Planning Division for processing and be made payable to the Clerk of the Board of Supervisors, 385 North Arrowhead, 2nd Floor, San Bernardino, CA 92415.
P4. Tentative Parcel Map No. 20571 shall adhere to all requirements of the Development Code.
P5. The applicant shall defend at his sole expense (with attorneys approved by the Town) and indemnify the Town against any action brought against the Town, its agents, officers or employees resulting from or relating to this approval. The applicant shall reimburse the Town, its agents, officers or employees for any judgment, court costs and attorney's fees which the Town, its agents, officers or
Tentative Parcel Map No. 20571
2 employees may be required to pay as a result of such action. The Town may, at its sole discretion, participate at its own expense in the defense of any such action, but such participation shall not relieve the applicant of these obligations under this condition.
P6. Approval of the Tentative Parcel Map No. 20571 by the Planning Commission is understood as acknowledgement of Conditions of Approval by the applicant, unless an appeal is filed in accordance with Section 9.12.250, Appeals, of the Town of Apple Valley Development Code.
P7. Development of the parcel is subject to the Town’s Interim Local Policy and Procedures on the Western Joshua Tree published July 21, 2021 or amendment thereof.
P8. The project shall conform to the Equestrian Residential (R-EQ) development standards for front, side and rear yard-building setbacks.
P9. If the tract/parcel map is adjacent to existing development, a fence/wall plan shall be submitted with the grading and landscape/irrigation plans to identify how new fencing or walls will relate to any existing fences or walls located around the perimeter of the tract/parcel map. The developer shall be required to connect to the existing fencing/walls or collaborate with the adjacent property owners to provide new fencing/walls and remove the existing fence/wall, both options at the developer’s expense. Double fencing shall be avoided and review and approval of the fencing/wall plan is required prior to issuance of grading permits.
P10. All new development of residential structures shall be designed and constructed in compliance with the “Single Family Infill Plotting Criteria” subject to the review and approved by the Planning Division.
P11. Landscape and irrigation plans shall be submitted prior to the issuance of Building Permits in accordance with Chapter 9.31 “Residential Design Standards” and Chapter
9.75 “Water Conservation/Landscape Regulations” of the Development Code and installed prior to issuance of occupancy permits subject to approval by the Planning Division.
P12. Prior to map recordation, all accessory structures shall be relocated in compliance with the minimum setbacks as required by the Equestrian Residential (R-EQ) zoning designation.
Engineering Division Conditions of Approval
EC1. A final drainage plan with street layouts shall be submitted for review and approval by the Town Engineer showing provisions for receiving and conducting offsite and onsite tributary drainage flows around or through the site in a manner which will not adversely affect adjacent or downstream properties. This plan shall consider
Tentative Parcel Map No. 20571
3 reducing the post-development site-developed flow to 90 percent of the predevelopment flow for a 100-year design storm.
EC2. A 30-ft wide half-width road dedication along Temecula Road shall be granted to the Town of Apple Valley prior to Final Map Approval.
EC3. A 64-ft wide half-width road dedication along Central Road shall be granted to the Town of Apple Valley prior to Final Map Approval.
EC4. An encroachment permit shall be obtained from the Town prior to performing any work in any public right of way.
EC5. The developer shall present evidence to the Town Engineer that he has made a reasonable effort to obtain a non-interference letter from any utility company that may have rights of easement within the property boundaries.
EC6. Utility lines shall be placed underground in accordance with the requirements of the Town. (Municipal Code Section 14.28)
EC7. Traffic impact fees adopted by the Town shall be paid by the developer.
EC8. Any developer fees adopted by the Town including but not limited to drainage fees shall be paid by the developer.
EC9. A Storm Water Pollution Prevention Plan (SWPPP) in accordance with the National Pollutant Discharge Elimination System (NPDES) shall be required.
Park District Conditions of Approval
PR1. This project is subject to applicable Quimby Fees as determined by the Town.
Quimby Fees shall be collected at time of issuance of building permit and shall be the fee adopted by the Town Council at the time of permit issuance.
Public Works Division Conditions of Approval
No Conditions
Building and Safety Department Conditions of Approval
BC1. An engineered grading report including soils report shall be submitted to and approved by the Building Official prior to recordation of the final map or issuance of permits for grading in excess of 1000 cubic yards.
Fire Protection District Conditions of Approval
Tentative Parcel Map No. 20571
4 1. The above referenced project is protected by the Apple Valley Fire Protection District.
Prior to construction occurring on any parcel, the owner shall contact the Fire District for verification of current fire protection development requirement.
2. All new construction shall comply with applicable sections of the California Fire Code, California Building Code, and other statutes, ordinances, rules, and regulations regarding fires and fire prevention adopted by the State, County, or Apple Valley Fire Protection District.
3. The development and each phase thereof may be required to have two points of paved access for fire and other emergency equipment, and for routes of escape which will safely handle evacuations. Each of these points of access shall provide an independent route into the area in which the development is located. This shall be completed prior to any combustible construction.
4. Approved numbers or addresses shall be placed on all new and existing buildings in such a position as to be plainly visible and legible from the street or road fronting the property. Said numbers shall contrast with their background. New dwelling addresses shall be posted with a minimum of 4-inch numbers visible from the street, and during the hours of darkness the numbers shall be internally illuminated. Where building setbacks exceed 75 feet from the roadway, additional contrasting 4-inch numbers shall be displayed at the property entrance.
5. Plans for fire protection systems designed to meet the fire flow requirements specified in the Conditions of Approval for this project shall be submitted to and approved by the Apple Valley Fire Protection District and water purveyor prior to the installation of said systems.
A. Unless otherwise approved by the Fire Chief, on-site fire protection water systems shall be designed to be looped and fed from two (2) remote points.
B. System Standards:
*Fire Flow 1500 GPM @ 20 psi Residual Pressure on 8” minimum water main size.
Duration 2 Hour
Hydrant Spacing 660 Feet
NFPA 13D (RESIDENTIAL AUTOMATIC FIRE SPRINKLER SYSTEM): REQUIRED This residence shall be constructed with an automatic fire sprinkler system (NFPA 13D) throughout the structure, including garage. Plans shall be submitted by a licensed C-16 contractor to the Fire District for review and approval along with plan review fees. Fire Sprinkler work shall not commence until plan approval and a job card have been issued.
An approved fire alarm system shall be installed that will provide a local alarm for water flow to be audible throughout the premises. NOTE: The Fire District shall be notified a minimum of 24 hours prior to the desired final inspection date.
6. A letter shall be furnished to the Fire District from the water purveyor stating that the required fire flow for the project can be met prior to the Formal Development Review Committee meeting.
Tentative Parcel Map No. 20571
5 7. Apple Valley Fire Protection District Final Subdivision/Tract/Development fees shall be paid to the Fire District prior to final map acceptance according to the current Apple Valley Fire Protection District Fee Ordinance.
END OF CONDITIONS
Town Council Agenda Report
Date: June 27, 2023
To: Honorable Mayor and Town Council
Subject: FY 2023-24 STATE ADVOCACY SERVICES
From: Douglas Robertson, Town Manager
Submitted by: Julie Ryan, Special Projects Manager
Town Manager
Budgeted Item: Yes No N/A
RECOMMENDED ACTION
That the Town Council approve a one-year extension to the Professional Services Agreement with Niemela Pappas & Associates for State Legislative Advocacy Services for Fiscal Year 2023-24.
BACKGROUND
The Town has contracted with state legislative advocacy firm Niemela Pappas & Associates (NPA) since January 2015. NPA acts as the Town’s liaison with the California Legislature and Administration in Sacramento advocating for the Town’s position on legislative, regulatory, and programmatic matters of interest. NPA also facilitates meetings with various State agencies to discuss funding opportunities and grant programs. The Town has also benefited from their presence in Sacramento due to the strong working relationships with the Governor, Legislature, and agencies of the State government by communicating and broadening the understanding of the Town’s priorities and needs.
ANALYSIS
NPA has worked with Town staff on numerous occasions to discuss specific legislative issues and potential grant projects. NPA continues to update the Town on legislative issues and activity in Sacramento, including assisting in monitoring and tracking the progress of specific legislation and attending legislative hearings before Senate and Assembly Committees on the Town’s behalf.
The Town’s contract with NPA expires on June 30, 2023, and staff recommends a oneyear contract extension through June 30, 2024, allowing the State Advocacy Service contract to align with the Town’s fiscal year calendar. Staff further believes that NPA’s Scope of Work and monthly fee is commensurate with the work they have performed
since 2015. Attached is the Scope of Services and Schedule of Compensation. If approved, the Town Attorney’s Office will be asked to prepare a simple amendment to the existing agreement with NPA for execution by the Town Manager.
FISCAL IMPACT
NPA has a current fee of $3,000 per month plus reimbursement for approved expenses up to $200 per month, or $38,400 for Fiscal Year 2023-24. Funding has been included in the FY 2023-24 budget for State Legislative Advocacy Services.
ATTACHMENTS
A. Scope of Services and Schedule of Compensation
ATTACHMENT “A”
TO
TOWN OF APPLE VALLEY AGREEMENT FOR LOBBYING SERVICES
SCOPE OF SERVICES
The scope of work to be provided by Niemela Pappas & Associates (“NPA”) to the Town of Apple Valley (“Town”) will include monitoring California’s legislative, regulatory, and administrative processes to identify potential legislation and administrative actions affecting the Town’s interests. In addition, NPA will provide advice and counsel, strategic planning, intelligence gathering, and lobbying related to the Town’s efforts to garner State funds for infrastructure improvements.
NPA’s role in monitoring and intelligence gathering will also be directed to frequent contact with legislators, the Governor’s Office, state agencies and key staff of primary committees affecting the Town. This contact is essential in order to obtain early notice regarding the development of future legislation and administrative actions affecting the Town’s interests. Through the establishment of a continued dialogue with legislators and agency representatives, NPA will keep policy makers aware of the potential effect of specific legislation and actions of relevance to the Town.
SCHEDULE OF COMPENSATION
Total compensation for work under this contract shall not exceed Three Thousand Dollars ($3,000.00) per month, plus approved expenses not to exceed Two Hundred Dollars ($200.00) per month, beginning July 1, 2023, through June 30, 2024.
Town Council Agenda Report
Date: June 27, 2023
To: Honorable Mayor and Town Council
Subject: RESOLUTION NO. 2023-21, A RESOLUTION OF THE TOWN
COUNCIL OF THE TOWN OF APPLE VALLEY, CALIFORNIA,
APPROVING THE LEVY AND COLLECTION OF ASSESSMENTS FOR
FISCAL YEAR 2023-24 WITHIN THE APPLE VALLEY VILLAGE
PROPERTY AND BUSINESS IMPROVEMENT DISTRICT (PBID)
From: Douglas Robertson, Town Manager
Submitted by: Orlando Acevedo, Assistant Town Manager
Economic Development
Budgeted Item: Yes No N/A
RECOMMENDED ACTION
That the Town Council adopt Resolution No. 2023-21, approving the Levy and Collection of Assessments for Fiscal Year 2023-24 within the Apple Valley Village Property and Business Improvement District (Attachment 1).
SUMMARY:
Each year the Town is required to submit an updated assessment roll (“Exhibit A”) to the County of San Bernardino for the Village PBID Assessment District (PBID). Accordingly, the Town Council annually adopts a resolution approving the levy and collection of assessments against parcels of real property within the PBID.
The estimated FY2023-24 annual assessment to be levied to private parcel owners is $209,321.32 (272 parcels), $17,865.24 to other public agencies including one privately owned street easement parcel that can’t be placed on the county property tax rolls (17 publicly owned), and $13,087.06 of those funds will be directly charged to the Town (12 parcels). As described in the tiered assessment formula within the adopted Management District Plan, the amount to be levied and collected for each fiscal year is increased where building area is expanded or newly constructed and may be increased up to 6% per year per a majority vote of the PBID Association Board. The PBID Association Board voted to increase assessments for FY2023-24 by 6%.
Public agencies for which the County does not bill a PBID assessment will receive a hand bill. The PBID assessment revenues collected by the County and paid to the Town will be remitted to the PBID as applicable and in accordance with the PBID’s adopted Management District Plan. The PBID assessments are collected by the County with the annual property tax billing. The County returns the PBID assessment funds to the Town, who then either spends them directly for specified PBID programs (i.e. Highway 18 Median Landscape Project; supplemental County Sheriff services) or remits them, as applicable, to the Village PBID Association to pay for and manage other PBID related programs and improvements (i.e. marketing/promotions, administration). The handbills for parcels not on the County’s property tax roll (including 12 Town owned parcels) have been prepared and will be delivered around October 1, 2023, to align with the County Assessor’s property tax bill mailing.
The Village PBID Association remains accountable for all funds it directly administers and is required to submit expense reports and financial statements to the Town annually. An annual Agreed-Upon Procedures Report will be completed by a third-party Certified Public Accountant by October 1, 2023, and subsequently submitted to the Town to receive and file.
Accordingly, staff recommends adoption of the form motion.
BACKGROUND:
The Village PBID Association unanimously adopted its FY2023-24 Budget on May 17, 2023, approving key programs and services consistent with its adopted 2022-2032 Management District Plan, approved as part of the ten-year renewal of the PBID.
The Council will review the PBID Budget under a separate agenda item scheduled for July 11, 2023.
FISCAL IMPACT:
A financial impact in the form of assessments levied on twelve (12) Town-owned properties within the PBID, estimated at $13,087.06 for FY2023-24.
ATTACHMENTS:
Attachment 1: Resolution No. 2023-21 A RESOLUTION OF THE TOWN COUNCIL OF
THE TOWN OF APPLE VALLEY, CALIFORNIA, APPROVING THE LEVY AND COLLECTION OF ASSESSMENTS FOR FISCAL YEAR 2023-24 WITHIN THE APPLE
VALLEY VILLAGE PROPERTY AND BUSINESS IMPROVEMENT DISTRICT (PBID) (Attachment 1).
Exhibit A: FY2023-24 Assessment Roll
RESOLUTION NO. 2023-XX
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF
APPLE VALLEY, CALIFORNIA, APPROVING THE LEVY AND
COLLECTION OF ASSESSMENTS FOR FISCAL YEAR 2023-24
WITHIN THE APPLE VALLEY VILLAGE PROPERTY AND
BUSINESS IMPROVEMENT DISTRICT
Pursuant to the Property and Business Improvement District Law of 1994, Part 7 of Division 18 of the California Streets and Highways Code, commencing with Section 36600:
The Town Council of the Town of Apple Valley resolves:
Section 1. The levy and collection of assessments against lots and parcels of real property within the Village PBID for FY2023-24 is ordered as described in the Management District Plan and incorporated herein by reference.
Section 2. The purpose of this Village PBID is to provide and manage supplemental services and improvements for this important business center, including improvement projects along Highway 18 and other streets within the PBID, facade and beautification enhancement projects, supplemental public safety services and other activities which benefit businesses and real property in the Village PBID.
Section 3. The estimated FY2023-24 annual assessment to be levied to private parcel owners is $209,321.32 (272 parcels), with $4,778.18 to be hand billed to other public agencies (5 parcels), and $13,087.06 of directly charged to the Town (12 parcels) for a total of $17,865.24 of additional assessments.
Section 4. The Town of Apple Valley Finance Department is hereby authorized to request the County of San Bernardino to collect assessments for the District for FY2023-24.
Section 5. The Town Clerk’s Office is hereby authorized and directed to transmit a certified copy of the Resolution and the Report to the San Bernardino County Auditor, as may be required to place said assessment on the secured property tax roll for FY2023-24.
APPROVED and ADOPTED by the Town Council of the Town of Apple Valley this 27th day of June 2023.
Scott Nassif, Mayor
ATTEST:
La Vonda M-Pearson, Town Clerk
APN
YR 2 2023-24
PBID ASSMT
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209321.32
Town Council Agenda Report
Date: June 27, 2023
To: Honorable Mayor and Town Council
Subject: Approve execution of Real Property Donation Agreement with HS Cluster LLC and execution of Certificate of Acceptance for receiving donation of approximately 4.27 acres of certain real property located at 22311 Bear Valley Road, Building A, Apple Valley, C
From: Douglas Robertson, Town Manager
Submitted by: Douglas B. Robertson, Town Manager
Town Attorney
Budgeted Item: Yes No N/A
RECOMMENDED ACTION
Approve execution of Real Property Donation Agreement with HS Cluster LLC and execution of Certificate of Acceptance for receiving donation of approximately 4.27 acres of certain real property located at 22311 Bear Valley Road, Building A, Apple Valley, CA 92308 (Assessor's Parcel Number 308-005-133).
BACKGROUND
Recently in the last few months, the Town of Apple Valley (“Town”) was approached by Harbinder Singh from HS Cluster LLC (“Owner”), the owner of approximately 4.27 acres of certain real property located at 22311 Bear Valley Road, Building A, Apple Valley, CA 92308 (Assessor’s Parcel Number 308-005-133) (“Property”). The Property has a movie theater. The theater had AMC Theatres as a tenant until recently when AMC Theatres decided to cease their business operations at that site. The Owner has offered to donate the Property to the Town for free.
Potential uses for the site include but are not limited to public meeting places, a performing arts center, use by San Bernardino County as a library annex, partnerships with local high schools regarding performing arts, and display of historical artifacts display. No current development is proposed on the site. There is no proposed commitment by the Town, or restrictive covenant by the Owner, to use the site for any specific purpose.
The Owner desires to complete the deal as quickly as possible.
Environmental Review
Staff has determined that the execution of the Donation Agreement and Certificate of Acceptance and acceptance of the Grant Deed is not subject to review under the California Environmental Quality Act (“CEQA”) because it is not a “project” under State CEQA Guidelines section 15378(a) or 15004(b)(2)(A). In addition, if these actions were to be considered a project under CEQA, they are categorically exempt from further CEQA review under State CEQA Guidelines section 15301 (existing facilities). In addition, the donation is exempt under CEQA Guidelines section 15061(b)(3) as it can be seen with certainty that there is no possibility that these actions may have a significant effect on the environment. The donation merely involves a change of ownership and no development is proposed. None of the exceptions to these categorical exemptions apply, and consequently, these actions are exempt from further CEQA review.
Fiscal Impact
None at this moment. The property is being donated to the Town for free. There will be undetermined ongoing maintenance and/or staffing costs.
Attachments
A. Donation Agreement and Certificate of Acceptance
28314.00023\41344706.2
-1-
TOWN OF APPLE VALLEY
REAL PROPERTY DONATION AGREEMENT
This DONATION AGREEMENT (“Agreement”) is made this 27th day of June, 2023 by and between the TOWN OF APPLE VALLEY, a general law city and municipal corporation, herein called “the Town,” and HS CLUSTER, LLC, a Texas limited liability company herein called “Donor.” Town and Donor are sometimes individually referred to as “Party” and collectively as “Parties.”
A. WHEREAS, Donor desires to donate in fee title to the Town of approximately 4.27 acres of certain real property commonly known as 22311 Bear Valley Road, Building A, Apple Valley, CA 92308 and with the Assessor’s Parcel Number 308-005-133, as more particularly described on Exhibit “A” and shown on Exhibit “B” attached hereto and incorporated herein by this reference (the “Donated Property” or “Property”) for use by the Town, subject to the conditions described in this Agreement.
B. WHEREAS, the Town desires to acquire the Property.
NOW, THEREFORE, the Town and Donor agree as follows:
1. Donation of Property. Donor shall offer to donate the Property to the Town and the Town shall accept the offer of donation of the Property upon the terms and conditions set forth in this Agreement.
2. Obligations of Donor.
2.1 Fee Interest. Upon acceptance by the Town, Donor shall convey, assign and transfer its fee interest in the Property to the Town, free and clear of all liens, encumbrances, easements, leases (recorded or unrecorded), bonds, assessments, and taxes except for: (i) liens for non-delinquent property taxes and assessments, accruing for the remainder of the fiscal year in effect as of the Closing Date; and (ii) those encumbrances and easements reflected in the Preliminary Report, which are approved by the Town as defined below (“Approved Exceptions”).
2.2 Representations and Warranties of Donor. Donor represents and warrants to the Town that as of the date of this Agreement and as of the Closing Date:
2.2.1 Hazardous Substances. To the best of Donor’s knowledge and except as set forth in any environmental reports delivered or made available to the Town, the Property is: (i) free from Hazardous Substances; (ii) contains no buried or partially buried storage tanks located on the Property; (iii) has not been used for the generation, storage or disposal of any Hazardous Substance and no Hazardous Substance has been spilled, disposed of, or stored on, under, or at the Property; and (iv) has never been used as a dump or landfill;
2.2.2 Leases. To the best of Donor’s knowledge and except as set forth in the Title Policy, there are no leases, licenses, or other agreements allowing any third party rights to use the Property that are now or will be in force as of the Closing Date;
28314.00023\41344706.2
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2.2.3 Litigation and Investigations. There is no pending or, to the best of Donor’s knowledge, threatened litigation, administrative proceeding, or other legal or governmental action with respect to the Property, and Donor has received no notice, warning, administrative complaint, judicial complaint, or other formal or informal notice alleging that conditions on the Property are or have been in violation of any Laws or Environmental Laws, or informing Donor that the Property is subject to investigation or inquiry regarding the violation of any Laws or Environmental Laws;
2.2.4 No Insolvency Proceedings. Donor has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by its creditors; (iii) suffered the appointment of a receiver to take possession of all or substantially all of its assets; (iv) suffered the attachment or other judicial seizure of substantially all of its assets; or (v) admitted in writing its inability to pay its debts as they come due;
2.2.5 No Other Agreements, Undertakings or Tenancies. Donor will not enter into any agreements or undertake any new obligations prior to the Closing Date which will in any way burden, encumber or otherwise affect the Property without the prior written consent of the Town; and
2.2.6 Warranty as to Property Ownership; Authority to Enter Agreement. Donor represents and warrants that the individuals who have signed this Agreement on behalf of Donor have the legal power, right, and authority to make this Agreement.
2.3 Definitions.
2.3.1 “Environmental Laws” means all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any government authority regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous Substance (as defined subsequently in this Agreement), or pertaining to occupational health or industrial hygiene (and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or about the Property), occupational or environmental conditions on, under, or about the Property, as now in effect.
2.3.2 “Hazardous Substances” includes without limitation:
(i) Those substances included within the definitions of “hazardous substance,” “hazardous waste,” “hazardous material,” “toxic substance,” “solid waste,” or “pollutant or contaminant” in any Environmental Law; (ii) Those substances listed in the United States Department of Transportation (DOT) Table [49 CFR 172.101], or by the Environmental Protection Agency (EPA), or any successor agency, as hazardous substances [40 CFR Part 302]; (iii) Other substances, materials, and wastes that are or become regulated or classified as hazardous or toxic under federal, state, or local laws or regulations; and
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(iv) Any material, waste, or substance that is: a petroleum or refined petroleum product, asbestos, polychlorinated biphenyl, designated as a hazardous substance pursuant to 33 U.S.C.A. § 1321 or listed pursuant to 33 U.S.C.A. § 1317, a flammable explosive, or a radioactive material.
2.3.3 “knowledge” means the best knowledge of Harbinder Singh on behalf of Donor after due investigation or inquiry.
3. Escrow. By this Agreement, the Town and Donor establish an escrow (“Escrow”) with Touchstone Escrow or another reputable title company chosen by Donor (the “Escrow Agent”), subject to the provisions of the standard conditions for acceptance of escrow and the terms and conditions in this Agreement, with a signed counterpart of this document to be delivered as escrow instructions to Escrow Agent. In the event of any conflict between the terms of this Agreement and the standard conditions for acceptance of escrow, the terms of this Agreement shall control. The Town’s agent for matters related to the Closing of Escrow shall be the Town Manager or his designee.
4. Title.
4.1 Immediately following the execution of this Agreement by both Parties, the Town shall obtain (with a copy to Donor) an updated preliminary report for an ALTA Standard Policy of Title Insurance, setting forth all liens, encumbrances, easements, restrictions, conditions, pending litigation, judgments, administrative proceedings, and other matters affecting Donor’s title to the Property (“Preliminary Report”), together with copies of all documents relating to title exceptions referred to in the Preliminary Report. The Town shall have a period of
4.2 Following the full execution of this Agreement by both Parties, the Town may cause a survey and/or an ALTA Survey of the Property to be prepared by a registered surveyor or professional engineer (“Survey”). Donor agrees to deliver to the Town, promptly following the full execution and delivery of this Agreement, copies of any survey of the Property in the possession of Donor.
5. Close of Escrow.
5.1 Title. Simultaneously with the Close of Escrow, Escrow Agent shall issue an ALTA Standard Policy of Title Insurance (formerly referred to as a CLTA Title Policy) (“Title Policy”) in the amount of $2,900,000.00, subject only to (i) liens for real property taxes, bonds, and assessments not delinquent and any not then due for any fiscal year following the fiscal year in effect as of the Closing Date, and (ii) the Approved Exceptions.
5.2 Donor’s Deposits into Escrow. Donor shall deposit with Escrow Agent on or prior to the Close of Escrow the following documents:
(i) a grant deed in the form attached hereto as Exhibit “C” executed and acknowledged by Donor, conveying to the Town fee simple title to the Property, subject only to the Approved Exceptions (“Deed”);
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(ii) Donor’s affidavit of non-foreign status as contemplated by Section 1445 of the Internal Revenue Code of 1986, as amended (“FIRPTA Affidavit”); (iii) all funds required to be placed in escrow by Donor; and (iv) Donor’s approval of the draft of Escrow Agent’s closing statement.
5.3 The Town’s Deposits into Escrow. The Town shall deposit with Escrow Agent on or prior to the Close of Escrow the following documents:
(i) The Town’s approval of the Survey, if any;
(ii) All funds required to be placed in escrow by Town; and (iii) The Town’s approval of the draft of Escrow Agent’s closing statement.
5.4 Closing Date. The conveyance of the Property to the Town and the closing of this transaction (“Close of Escrow”) shall take place on the later of the date which is sixty (60) days following the establishment of an Escrow pursuant to Section 3 of this Agreement or ten (10) business days following the satisfaction of the conditions set forth in Section 6.1.1, below (“Closing Date”).
5.5 Closing Statements. No more than two (2) days prior to the Closing Date, Escrow Agent shall deliver to the Town and to Donor, for their respective approvals, drafts of Escrow Agent’s closing statement showing all receipts and disbursements of the Escrow.
5.6 Closing Instructions. On the Closing Date (or any extension thereof), Escrow Agent shall close Escrow as follows:
(i) record the Deed (marked for return to the Town) with the San Bernardino County Recorder;
(ii) issue the Title Policy;
(iii) prorate taxes, assessments, rents, and other charges as provided in Section 5.7 below;
(iv) prepare and deliver to both the Town and Donor one signed copy of Escrow Agent’s closing statement showing all receipts and disbursements of the Escrow;
(v) deliver to the Town the FIRPTA Affidavit, and the
Withholding Affidavit; and
(vi) If Escrow Agent is unable to simultaneously perform all of the instructions set forth above, Escrow Agent shall notify the Town and Donor and retain all
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funds and documents pending receipt of further instructions jointly issued by the Town and Donor.
5.7 Closing Costs and Pro-rations.
5.7.1 The Town shall pay the following closing costs and pro-rations through the Close of Escrow:
(i) All the fees and charges in connection with issuance of the Title Policy in the amount of $2,900,000.00;
(ii) All costs associated with any environmental reports, including the Phase I Environmental Site Assessment Report, and any further testing and reports which may be reasonably necessary as a result of such report; (iii) All charges related to any survey undertaken in connection with an ALTA Extended Policy of Title Insurance;
(iv) The recording charges in connection with recordation of the Deed; and
(v) All the fees and charges levied by Escrow Agent.
5.7.2 Donor shall pay the following closing costs and pro-rations through the Close of Escrow:
(i) All governmental conveyancing fees and taxes, if any, due upon transfer of the Property;
(ii) The cost of discharging any liens or monetary
encumbrances for the Property; and
(iii) Donor shall pay real property taxes and assessments for the remainder of the fiscal year in effect as of the Closing Date based on the most current real property tax bill available, including any additional property taxes that may be assessed after the Closing Date but that relate to a period prior to the Closing Date, regardless of when notice of those taxes is received or who receives the notice. Donor may seek reimbursement from the San Bernardino County Tax Assessor’s office for any property taxes that have been assessed for a period after the Closing Date as the Town is a municipal corporation exempt from payment of such taxes. The Town further agrees to cooperate with Donor to provide any necessary information to the Assessor’s office in connection with such request for refund. All installments of any bond or assessment that constitutes a lien on the Property at the Closing Date shall be paid by Donor.
6. Acceptance.
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6.1.1 The acceptance of the Property by the Town and the Closing Date (as defined in Section 5.4) are subject to the satisfaction of the following no later than the Closing Date:
(i) The Town’s approval of the physical condition of the Property and title to the Property ;
(ii) The Town’s approval of the Phase 1 Report commissioned for the Property.
(iii) The representations and warranties of Donor set forth in Section 2.2 shall be true and accurate as of the Closing Date; (iv) Donor’s delivery to Escrow of a Grant Deed in
substantially the form attached hereto as Exhibit “C” transferring title to the Property to the Town
(v) Donor’s performance of all obligations under this
Agreement;
(vi) No adverse material change shall have occurred with respect to the condition of the Property from the execution of this Agreement through the Closing Date; and
(vii) Donor shall ensure that the Town has access to the Property, should such access not be available through a public roadway.
7. Right to Terminate. This Agreement may be terminated by the Town or Donor upon three (3) days written notice to the other Party if the conditions to closing in favor of such Party as set forth in Section 6 have not been fulfilled on or before the Closing Date.
8. Notices. As used in this Agreement, notice includes but is not limited to, the communication of any notice, request, demand, approval, statement, report, acceptance, consent, waiver and appointment. All notices must be in writing. Notice is given either (i) when delivered in person to the person or company intended named below, (ii) when delivered via facsimile with confirmation from the receiving party via return fax; or (iii) when sent via reputable overnight courier (such as Federal Express), addressed by name and addressed to the party or persons intended, as follows:
To Town: Town of Apple Valley
14955 Dale Evans Parkway
Apple Valley, CA 92307
Phone: (760) 240-7000
Attention: Town Manager
With copy to: Best Best & Krieger LLP
2855 E. Guasti Road, Suite 400
Ontario, CA 91761
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Phone: (909) 989-8584
Attention: Town Attorney, Town of Apple Valley
To Donor: HS Cluster, LLC
10159 Alondra Boulevard
Bellflower, CA 90706
Phone: On file
Attention: Harbinder Singh
With copy to: Reserved
To Escrow: Touchstone Escrow
12138 Industrial Boulevard, Suite 260
Victorville, Ca 92395
Phone: (760) 985-6461
Attention: Norma Szakas (Escrow Officer)
until such time as a party gives notice of the change of address in accordance with the terms of this section.
9. Amendments. This Agreement shall not be changed, modified or amended except upon the written consent of the Parties hereto.
10. Survival. Unless otherwise specifically provided herein, the provisions of this Agreement shall survive the Close of Escrow, provided, however, the representations and warranties of Donor as set forth in Sections 2.2.1, 2.2.2, 2.2.3 or 2.2.5 shall be of no further force or effect two (2) years following the Closing Date.
11. AS-IS. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND
WARRANTIES OF DONOR SET FORTH HEREIN, THE TRANSFER OF A PROPERTY TO THE TOWN SHALL BE ON A STRICTLY "AS-IS" BASIS WITHOUT ANY COVENANTS OR WARRANTIES (EXPRESS OR IMPLIED) OF ANY KIND.
12. Integration. This Agreement is the result of negotiations between the Parties and is intended by the Parties to be a final expression of their understanding with respect to the matters herein contained. This Agreement supersedes any and all other prior agreements and understandings, oral or written, in connection therewith.
12. Assignment. Donor, their assigns and successors in interest, shall be bound by all the terms and conditions contained in this Agreement, and all the parties thereto shall be jointly and severally liable thereunder. The Town shall not have any right to assign its rights under this Agreement without the prior written consent of Donor which may be withheld in Donor's sole and absolute discretion.
13. Applicable Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California applicable to agreements made and to be performed within the state. This Agreement has been negotiated at arm’s length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. In
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addition, each party has been represented by experienced and knowledgeable legal counsel.
Accordingly, any rule of law (including California Civil Code Section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effect the purpose of the parties and this Agreement. No provision contained herein shall be construed against any party solely because it prepared this Agreement in its executed form.
14. Agreement Approval. This Agreement is not binding until executed by the Town Manager of the Town of Apple Valley, following approval by the Town Council in an open meeting, and Donor’s signatories set forth below.
15. No Further Town Obligations. Notwithstanding any other provision of this Agreement or any other agreement between any of the Parties hereto, once the Property is conveyed to and accepted by the Town, the Town shall have no right or obligation to return the Property to the Donor under any circumstances, except in the sole and exclusive discretion of the Town. The Parties shall have such other remedies at law and equity as are appropriate to their obligations hereunder.
16. Form 8283. The Town agrees to cooperate with Donor to acknowledge receipt of the donation of the Property, the size of which is to be determined by Donor to be eligible for a charitable contribution deduction, by signing Internal Revenue Form 8283 (Non-Cash Charitable Contributions) and any other tax-related forms or documents reasonably requested by Donor and to return any such forms to Donor within thirty calendar (30) days after the Town’s receipt of such forms from Donor. Notwithstanding the foregoing, the Town makes no representation or warranty to Donor regarding the tax attributes of this transaction, nor shall the Town endorse or otherwise acknowledge any valuation of the Property for tax purposes, it being understood that the Donor has obtained its own appraisals and tax advice for such purposes.
17. Counterparts. This Agreement may be executed in one or more counterparts.
Each shall be deemed an original and all, taken together, shall constitute one and the same instrument.
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IN THE WITNESS THEREOF, the Parties have caused this Agreement to be executed by their duly-authorized representatives on the date and year set forth below.
DONOR: THE TOWN:
Date: _____________________ Date:____________________
HS Cluster, LLC Town of Apple Valley
A Texas limited liability company a general law city and municipal corporation By:_____________________________ By:_____________________________ Harbinder Singh Douglas B. Robertson, Town Manager
its managing member
ATTEST:
By:_____________________________
La Vonda M-Pearson, Town Clerk
APPROVED AS TO FORM:
By:_____________________________
Thomas A. Rice, Town Attorney
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EXHIBIT A
LEGAL DESCRIPTION
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EXHIBIT B
MAP/DEPICTION OF PROPERTY
APN: 308-005-133; Address: 22311 Bear Valley Road, Building A, Apple Valley, CA 92308
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EXHIBIT C
GRANT DEED
Recorded at request of and return to:
Town of Apple Valley
14955 Dale Evans Parkway
Apple Valley, CA 92307
Attention: Town Manager
DOCUMENTARY TRANSFER TAX $0* (Space Above For Recorder's Use) * Computed on the consideration or value of property
conveyed; OR
Computed on the consideration or value less liens or encumbrances remaining at time of sale. Signature of Declarant or Agent determining tax–Firm Name
GRANT DEED
APN: 308-005-133
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, HS CLUSTER, LLC, a Texas limited liability company, herein called “Donor/Grantor”, hereby GRANTS to TOWN OF APPLE VALLEY, a California general law city and municipal corporation (“Grantee”), the real property in the County of San Bernardino, State of California, as more particularly described on Exhibit "A", attached hereto and incorporate herein by this reference..
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the __th day of _______, 2023.
HS CLUSTER, LLC,
a Texas limited liability company
By:
Harbinder Singh, its managing member
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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of ______________________ )
On _________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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EXHIBIT A
LEGAL DESCRIPTION
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CERTIFICATE OF ACCEPTANCE
This is to certify that the real property conveyed by HS Cluster, LLC, on the Grant Deed dated _______________, 2023, to the TOWN OF APPLE VALLEY (Grantee), is hereby accepted by the undersigned officer on behalf of the Grantee, pursuant to authority conferred by the Town Council of the Town of Apple Valley.
GRANTEE:
Date: __________, 2023 TOWN OF APPLE VALLEY
By: ___________________________________
Douglas B. Robertson, Town Manager
ATTEST:
By: ___________________________________
La Vonda M-Pearson, Town Clerk
Resolution No. 2023-22
Town Council Agenda Report
Date: June 27, 2023
To: Honorable Mayor and Town Council
Subject: ADOPTION OF FISCAL YEAR 2023-2024 APPRORIATIONS LIMIT
From: Douglas Robertson, Town Manager
Submitted by: Sydnie Harris, Director of Finance
Finance
Budgeted Item: Yes No N/A
RECOMMENDED ACTION
Adopt Resolution No.2023-22 of the Town Council of the Town of Apple Valley, California, establishing the Fiscal Year 2023-2024 Appropriations Limit for the Town at $49,887,624 by using the Town’s population growth for the population adjustment and the California per capita income growth for the inflationary adjustment.
SUMMARY
Since the addition of Article XIII-B to the Constitution of California in November 1979, the Town has been required to annually establish an Appropriations Limit. The ideology behind establishing an annual appropriation limit is that if an agency’s ability to spend tax proceeds each year is controlled, then the growth in tax revenues can be systematically and incrementally managed to lessen the impact or tax burden upon taxpayers throughout the State.
In June 1990, Article XIII-B and its implementing legislation Chapter 1205/80 were modified by Proposition 111 and SB 88. The modifications changed the annual adjustment factors for determining the Appropriations Limit. Beginning with the calculation of the Appropriations Limit for Fiscal Year 1990-1991, the Town may choose one of the following factors to use for inflationary adjustment:
• The growth in California per capita income; or
• The growth in the non-residential assessed valuation due to new construction within the Town.
Resolution No. 2023-22
In addition, the Town may choose to use either the population growth of the Town or the population growth within the County. These two adjustment factors, one for inflation and one for population, are both annual elections for the Town in determining its Appropriations Limit.
BACKGROUND
The methodology used to determine the Town’s Appropriations Limit is to multiply the inflation and population adjustment factors by the prior year’s Appropriations Limit. For Fiscal Year 2023-2024, the inflation and population figures provided by the State Department of Finance are as follows:
California Per Capita Income Percentage Change 4.44%
Town of Apple Valley’s Population Growth - 0.37%
Since the growth in non-residential assessed valuation due to new construction is not available at this time, the growth in California Per Capita Income must be used as the inflationary factor. The Town’s Appropriations Limit for Fiscal Year 2023-2024 is calculated at $49,887,624. This amount is the result of applying the 4.44% California per capita personal income factor and the -0.37% Town of Apple Valley population growth factor to the Fiscal Year 2022-2023 adopted Appropriations Limit of $44,944,206.
The total estimated revenues generated from general tax proceeds for Fiscal Year 2023- 2024 is $24,651,200. This estimate is $25,236,424 or 49.41% below the proposed Appropriations Limit for Fiscal Year 2023-2024.
FISCAL IMPACT
The Town’s total estimated revenue from general tax proceeds is $24,651,200 or 49.41% below the proposed Fiscal Year 2023-2024 Appropriations Limit. Therefore, the Town is well within its Appropriations Limit established pursuant to Section 7910 of the Government Code of the State of California and will not exceed this limit during Fiscal Year 2023-2024.
ATTACHMENTS
A. Resolution No. 2023-22
B. Approptiations Limit Computation
RESOLUTION NO. 2023-22
A RESOLUTION OF THE TOWN COUNCIL OF THE
TOWN OF APPLE VALLEY, CALIFORNIA,
ESTABLISHING THE FISCAL YEAR 2023-2024
APPROPRIATION LIMIT FOR THE TOWN OF
APPLE VALLEY
WHEREAS, Article XIIIB of the California Constitution and Section 7910 of the California Government Code require that each year the Town of Apple Valley shall, by resolution, establish an appropriations limit for the Town for the following fiscal year; and WHEREAS, the Director of Finance of the Town has heretofore prepared and submitted data and documentation required for and to be used in the determination of an appropriations limit for the Town for Fiscal Year 2023-2024 and such data and documentation has been available to the public for at least fifteen (15) days prior to adoption of this Resolution; and
WHEREAS, the Town of Apple Valley established its Fiscal Year 2022-2023 Appropriation Limit of $47,944,206 (Forty-Seven Million, Nine Hundred Forty-Four Thousand, Two Hundred Six Dollars); and
WHEREAS, to the best of the Town's knowledge and belief the State Department of Finance figures reflect the following statistics relevant to the calculation of the Fiscal Year 2023-2024 Appropriation Limit:
Per Capita Personal Income Change for Fiscal Year 2023-2024: 4.44% Population Adjustment - January 1, 2023: -.70%
NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF APPLE VALLEY AS FOLLOWS:
Section 1. Based on the foregoing figures and the provisions of Article XIIIB of the Constitution of the State of California, the following figure accurately represents the Fiscal Year 2023-2024 Appropriation Limit of the Town of Apple Valley to be $49,887,624 (and said sum is hereby determined and established as the appropriation limit for the Town of Apple Valley for Fiscal Year 2023-2024).
Section 2. The Town Clerk shall certify to the passage of the Resolution.
Resolution No. 2023-22
APPROVED and ADOPTED by the Town Council of the Town of Apple Valley this 27th day of June 2023.
ATTEST: Scott Nassif, Mayor
__________________________
La Vonda M-Pearson, Town Clerk
TOWN OF APPLE VALLEY
APPROPRIATIONS LIMIT COMPUTATION
2023 – 2024
2022-23
Change in Per Capital Personal Income 7.55%
Population Change Town Population Growth -0.70%
Change in Per Capita Personal Income Converted to a Ratio 1.0755 Population Change Converted to a Ratio 0.9930
Calculation of Growth Factor 1.0679
2021 - 2022 Appropriations Limit $ 44,895,783
2022 - 2023 Appropriations Limit $ 47,944,206
($44,895,783 X 1.0679)
Town Council Agenda Report
Date: June 27, 2023
To: Honorable Mayor and Town Council
Subject: REVIEW OF THE FISCAL YEAR 2023-2024 STATEMENT OF
INVESTMENT POLICY
From: Douglas Robertson, Town Manager
Submitted by: Sydnie Harris, Director of Finance
Finance
Budgeted Item: Yes No N/A
RECOMMENDED ACTION
Adopt Resolution No. 2023-23 approving the Statement of Investment Policy for Fiscal Year 2023-2024 and delegating the investment activities to the Town Treasurer.
BACKGROUND
The California Government Code Section 53646 requires the Town Treasurer to submit a “Statement of Investment Policy” to the legislative body each fiscal year. Effective January 1, 1996, this Code Section was reinstated and requires annual adoption of the policy statement. This Investment Policy has been designed and developed according to the specific needs of the Town of Apple Valley and complies with the California Government Code, guidelines recommended by the California Municipal Treasurer’s Association (CMTA) and guidelines recommended by the Association of Public Treasurers of the United States and Canada (APTUS&C).
Pursuant to the Government Code, the Town Treasurer has the responsibility to submit a quarterly Treasurer’s Report to the Town Council regarding the status of receipts, disbursements, cash balances by fund and investment of cash balances within thirty (30) days following the end of the quarter covered by the report.
The Finance Department updates cash flow spreadsheets, reviews revenue projections and performs investment functions on a daily basis. The Finance Department analyzes the cash flow requirements of the Town each morning. Idle funds are invested daily to effectively maximize the Town’s investment earnings within the parameters outlined in the Town’s adopted Investment Policy.
The single most important statutory duty of the Town Treasurer is set forth in California Government Code Section 41001 which provides that the “Treasurer shall receive and safely keep all money coming into the Treasury.” In light of these statutory responsibilities, the California Municipal Treasurer’s Association has established the following guidelines to prudent investment strategy for local treasurers to follow:
Legal Investment Authority: Temporary idle monies are to be invested in accordance with state and local statutes and in compliance with California Government Code Sections 53600 et. seq.
• Safety: It is the primary duty and responsibility of the Treasurer to protect, preserve, and maintain intact cash and investments placed in trust with the Treasurer on behalf of the citizens of the Town of Apple Valley.
• Liquidity: An adequate percentage of the portfolio should be maintained in liquid shortterm securities, which can be converted to cash if necessary, to meet disbursement requirements.
• Yield: The Treasurer shall obtain the highest possible yield within the parameters of the Town’s authorized investments, provided the criteria for safety and liquidity have been met.
ANALYSIS
The 2023-2024 Investment Policy adopted on June 27, 2023, has been revised to reflect the changes as referenced below:
Miscellaneous or other “housekeeping” changes such as “date” changes were made to the various sections of the Town’s Investment Policy as noted in the attached red-line copy of the policy statement.
Whenever revisions to the Investment Policy are considered, the proposed revisions are reviewed and discussed by Finance Department staff to ensure compliance with stated investment objectives, the Town’s adopted Investment Policy and State law.
CONCLUSION
The attached proposed Investment Policy has been revised to include the proposed changes referenced above. It is recommended that Town Council adopt the attached Resolution No. 2023-23 approving the attached Investment Policy for Fiscal Year 2023- 2024.
ATTACHMENTS
A. 2022-23 Red Lined Statement of Investment Policy
B. 2023-24 Proposed Statement of Investment Policy
Investment Guidelines and Strategy
Investment Procedures: Internal Controls - Guidelines
Cash Controls: Independent Auditors' Procedure
Segregation of Treasury Responsibilities
C. Glossary
D. Resolution No. 2023-23
2022-232023-24 Proposed Stmnt.docx2022-23 Red Lined Stmnt.docx
TOWN OF APPLE VALLEY
STATEMENT OF INVESTMENT POLICY
2022-232023-24
I.GENERAL INTRODUCTION
Under the laws of the State of California, it is the responsibility of the Town Treasurer, at the direction of the Town Council, to secure and protect the public funds of the Town, and to establish proper safeguards, controls, and procedures to maintain these funds in a lawful, rational and auspicious manner. Said maintenance shall include the prudent and secure investment of those funds that are deemed temporarily excess, in a manner anticipated to provide additional benefit to the people of the Town of Apple Valley.
This Statement of Investment Policy will be provided annually for the review and approval of the Town Council in an open public meeting. It will be provided to securities dealers, banks, and brokers currently approved for conducting investment transactions with the Town Treasurer’s office in the ongoing effort to manage the excess cash portfolio; to other affected persons or entities; and to any member of the electorate wishing to review this document upon request. The Treasurer reserves the right to provide these documents on a cost basis.
II. SCOPE
This Statement of Investment Policy pertains to those temporarily surplus funds under the control of the Treasurer, designated for the daily ongoing operations of the Town; and concerns the deposit, maintenance, safekeeping, and preservation of all such funds, and the investments made with these funds. This Policy does not apply to pension trust funds, deferred compensation funds, and certain other trust or non-operating funds.
III. PURPOSE
The purpose of this Statement of Investment Policy is to provide the Town Council, and those involved in servicing the investment requirements of the Town, and any other interested party, a clear understanding of the regulations and internal guidelines that will be observed in maintaining and investing those pooled funds deemed temporarily excess.
This statement is intended to provide guidelines for the prudent investment of the Town's temporary idle cash and outline the procedures for maximizing the efficiency of the Town's cash management system. The ultimate goal is to enhance the economic status of the Town while safeguarding its assets.
IV. OBJECTIVE
The Town's cash management system is designed to accurately monitor and forecast revenues and expenditures, thus enabling the Town to invest funds to the fullest extent possible. The Town attempts to obtain the highest yield possible only after the criteria established for safety and liquidity have been met.
The Town of Apple Valley operates its pooled idle cash investments with judgment and care, under circumstances then prevailing, which persons of prudence, discretion and intelligence exercise in the management of their own affairs, not for speculation, but for investment, considering the probable safety of their capital as well as the probable income to be derived. This affords the Town a broad spectrum of investment opportunities as long as the investment is deemed prudent and is allowable under current legislation of the State of California Government Code Section 53600 et seq. and the general laws of the Town of Apple Valley.
The Town of Apple Valley strives to maintain the level of investment of all idle funds as near 100% as possible, through daily and projected cash flow determinations. Idle cash management and investment transactions are the responsibility of the Town Treasurer or his/her designee.
Criteria for selecting investments and the order of priority are:
1. Safety: The safety and risk associated with an investment refers to the potential loss of principal, interest, or a combination of these amounts. The Town only operates in those investments that are considered very safe.
2. Liquidity: This refers to the ability to "cash in" at any moment in time with a minimal chance of losing some portion of principal or interest.
3. Yield: Yield is the potential dollar earnings an investment can provide, and sometimes is referred to as the rate of return.
4. Safekeeping: Securities purchased shall be held in third party safekeeping in the Trust Department of a financial institution, in the Town's name and control. The account established shall be protected from seizure by creditors should the financial institution holding the Town's securities file for bankruptcy protection. The basic premise underlying the Town's investment philosophy is and continues to be, to ensure that surplus funds are always safe and available when needed.
V. DELEGATION OF INVESTMENT AUTHORITY
Authority to manage the Town of Apple Valley's investment program is derived from Town of Apple Valley Council Resolution No. 20223-19XX Management responsibility for the investment program is hereby delegated for Fiscal Year 2022-232023-24 to the Town Treasurer or his/her designee, who shall establish written procedures for the operation of the investment program consistent with this Investment Policy. Procedures should include references to: safekeeping, repurchase agreements, wire transfer agreements, banking service contracts, and collateral/ depository agreements. Such procedures shall include explicit delegation of authority to persons responsible for investment transactions. No person may engage in an investment transaction except as provided under the terms of this policy and the procedures established by the Town Treasurer or his/her designee.
The Town Treasurer or his/her designee shall be responsible for all transactions undertaken and shall establish a system of controls to regulate the activities of subordinate officials.
VI. STANDARD OF PRUDENCE
The Treasurer shall perform the investment function in conjunction with the “Prudent Person Rule.” This rule states, in principle that whenever investing property for the benefit of others, a trustee shall exercise the judgment and care, under circumstances then prevailing that persons of prudence, discretion, and intelligence, would exercise in the management of their own affairs not in regards to speculation, but in regard to the permanent disposition of their funds, considering the probability of safety of, as well as the probable income from their capital. The Treasurer and his designees are considered to have a fiduciary, trustee, relationship with the public for the public funds and all investment decisions will be made in a manner sustaining this responsibility.
VII. AUTHORIZED INVESTMENTS
The California Government Code allows the Town to invest in the following media:
Securities of the U.S. Government, or its government sponsored agencies Small Business Administration loans
Certificates of deposit, placed with commercial banks and savings and loan companies Negotiable certificates of deposit
Bankers’ acceptances
Commercial paper
Corporate notes and bonds, including medium term notes
State of California Local Agency Investment Fund
Repurchase agreements
Reverse repurchase agreements
Passbook savings account demand deposits
County Treasurer demand deposits
Asset-backed and mortgage-backed securities
Money market mutual funds
As a matter of practice, however, the Town of Apple Valley generally limits its investments to the following vehicles:
U.S. Treasury Bills - Issued weekly with maturity dates up to one year. They are issued and traded on a discount basis with interest figured on a 360-day basis, actual number of days. They are issued in amounts of $10,000 and up, in multiples of $5,000. They are a highly liquid security.