AVALON CITY COUNCIL MEETING
TUESDAY, AUGUST 15, 2023— 5:00 PM
410 AVALON CANYON ROAD
THIS VIRTUAL MEETING IS HELD PURSUANT TO AB 361
AGENDA
In compliance with the Americans with Disability Act, if you need special assistance to participate in thismeeting, please contact the City Clerks Office (310) 510-0220. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. (28 CFR 35. 102-
35.104 ADA Title Il). All public records relating to an agenda item on this agenda are available for the publicinspection at the time the records are distributed to all! or a majority of all! members of the City Council. Such records shall be available at City Hall located at 410 Avalon Canyon Rd Due to social distancing recommendations from the Center for Disease Control and State of California Division of Occupational Safety and Health (Cal/OSHA) and the County of Los Angeles, and pursuant to findings made underAB 361, the CITY OFAVALON’S CITY COUNCIL SHALL GENERALLY BE AVAILABLE TO THE PUBLIC REMOTELY. The general public may attend the meeting in the Council Chambers however must adhere to social distancingrequirements. The public is encouraged to watch and participate from the safety of their homes while practicing social distancing.
Council Chambers are open to a maximum 30 members of the general public. Once the CouncilChambers reach maximum occupancy, the general public may participate in Oral Communication and address the City Council on an agenda item in person by waiting in the City Hall Court Yard and entering the Chambers one at a time at the appropriate time. No one will be admitted into the Council Chambers who is ill or exhibiting symptoms of COVID-19. Additionally, the general public may participate in Oral Communication and address the City Council on an agenda items by providing comments via Zoom or by sending comments toaskcityofavaIon .com.
For the public’s convenience, but not participation, the meeting can be viewed:
On local cable: Catalina Broadband Solutions channel 3
Streaming Online: www.cityofavalon.com/meetings *Streaming on Facebook Live: www.facebook.com/CityOfAvalonOfficial Streaming on YouTube: https://www.youtube.com/CityofAvalonCA
FOR REMOTE PUBLIC PARTICIPATION
1) Join the Meeting via Phone Conference (Voice Only):
Phone Number: (669) 444-9171,
Meeting ID: 826 8914 4048
Passcode: 35831
When you would like to comment during the meeting enter *9 on the phone’s key pad to activate the “raise hand” button at the time the Agenda Item is being presented for City Council consideration.
CITY COUNCIL AGENDA
AUGUST 15, 2023
PAGE 2
CALL TO ORDER I PLEDGE OF ALLEGIANCE I INVOCATION I ROLL CALL
ANNOUNCEMENTS I WRITTEN COMMUNICATIONS
DEPARTMENT HEAD REPORTS
CITY MANAGER REPORT I CITY ATTORNEY REPORT
COUNCILMEMBER REPORTS I MAYOR REPORT
ORAL COMMUNICATION
Members of the public may address the City Council at this time. No action will be taken on nonagenda items at this meeting. Speakers should limit comments to two (2) minutes each.
PRESENTATIONS — At the request of Mayor Marshall for quarterly reporting by Love Catalina Island, Jim Luttjohann will be making the second quarter/end of fiscal year report that highlights tourism promotion efforts. (10 minutes).
CONSENT CALENDAR
1. Minutes
Although the live recording is the official record of public meetings, actions are preparedfor the Council’s approval.
Recommended Action
Approve minutes from the August 1, 2023 regular City Council Meeting.
2. Warrants
Expenditures Submitted for Approval
o Warrants from the General Account in the amount of $1,165,248.26. o One payroll in the amount of $256,555.09.o Three electronic fund transfers totaling $123,694.04.
Recommended Action
Approve total expenditures for July 24, 2023 through August 4, 2023 totaling $1,545,497.39.
3. Findings to Continue to Hold Remote TeleconferenceNirtual City Council Meetings Pursuant to Assembly Bill 361
State and Municipal Codes require the Treasurer to submit within 30 days following each fiscal quarter a report summarizing the City’s cash and investment balances. The purpose of the report is to inform, on a quarterly basis, the City’s cash and investment balances, the investment types, yields, and market values, and to ensure that the City’s investments are in compliance with the City’s adopted investment policy.
CITY COUNCIL AGENDA
AUGUST 15, 2023
PAGE 3
Recommended ActionReconsider the circumstances of COVID-19 state of emergency proclaimed by the Governor and COVID-19’s continued impact and determine that state or local officials have imposed or recommended measures to promote social distancing in connection with COVID-19, and as such, that continuing to utilize the protections of Assembly Bill 361 willprotect the health and safely of attendees.
4. Grant Funding Application to the California Division of Boating and Waterways The City of Avalon submitted a grant application on August 1, 2023 to the California Division of Boating and Waterways for a Tier I Boating Infrastructure Grant. Though the grant application was executed by the City Manager on August 1, 2023, the grant requiresa resolution from the City Council designating the City Manager, or his designee, as anauthorized signer.
Recommended Action
Adopt a resolution authorizing the application of grant funds from the California Division of Boating and Waterways Boating Infrastructure Grant, and authorize the City Manager,or their designee, to be the authorized signature on the grant application.
5. Engineered Solution Group On-Call Engineering Services Contract Extension and Annual Increase
In January 2020, the City Council authorized a professional services contract for on-call engineering with Engineered Solution Group (ESG). The City utilizes the services of ESG for various civil engineering services. Due to the COVID-19 Pandemic, the City delayed implementation of many CIP projects. The delay in implementation as well as the growing and varied nature of current, ongoing City projects, has caused an increase in the utilization of ESG services in 2023.Recommended Action
Authorize the City Manager to execute an amendment to the City’s On-Call Engineering Professional Services Agreement with Engineered Solution Group, renewing the contract term for an additional two-year period effective January 1, 2024, and increasing the contracted maximum annual cumulative total for all services from $500,000 to $800,000 effective immediately.
GENERAL BUSINESS6. Resolution Amending Memorandum of Understanding Between the City of Avalon and International Association of Firefighters Local 2295In May 2022, the City Council adopted Resolution 22-25 approving the Memorandum ofUnderstanding (MOU) between the City and the International Association of FirefightersLocal 2295 (Fire Union) effective July 1, 2022 through June 30, 2025. Representatives from the Fire Union and the City Manager have held several meetings resulting in the mutual proposal of two amendments to the existing MOU agreement.
CITY COUNCIL AGENDA
AUGUST 15, 2023
PAGE 4
Recommended Action
Adopt a resolution amending the Memorandum of Understanding between the City of Avalon and the International Association of Firefighters Local 2295 for the contract period July 1, 2022 through June 30, 2025.
7. Transient Rental License Discussion
On August 1, 2023, the City Council voted unanimously to establish, by urgencyordinance, a moratorium on the issuance of Transient Rental Licenses for transient rental use to new applicants for a 45-day period. The moratorium was established to allow City Council, City Staff and the City Attorney time to study appropriate regulations to maintainpublic safety and health of the community.
Recommended ActionDiscuss the Staff proposal for analyzing transient rental issues. Provide direction to Staff.
8. Presentation and Discussion on Landlord Tenant Regulatory Options State law provides certain landlord tenant regulations throughout the state, but cities may enact additional regulations if they so choose.
Recommended Action
Consider existing landlord tenant regulations under state law, as well as City options for creating additional regulations, and direct Staff to prepare a tenant-landlord ordinance for future consideration if the Council deems it appropriate.
CLOSED SESSION
1. CONFERENCE WITH LABOR NEGOTIATORS
Agency designated representative: David Maistros, City Manager Employee Organizations:
1) SEUI 721 -Avalon Harbor Employee Association
2) SEUI 721 -Avalon Municipal Employee Association
3) International Association of Fire Fighters Local 2295 4) Unrepresented/Confidential Employees
5) Management
ADJOURN
NOTICE OF POSTING
I. Devin Elise Hart, declare that the City Council Agenda for Tuesday, August 15. 2023 was posted on Thursday, August 10, 2023 on the City’s website www.cityofavalon.com/agendacenter, and at City Hall, 410 Avalon Canyon Road. cfiyJ
Devin Elise Hart, Management Analyst
CITY OF AVALON CITY COUNCIL
MEETING DATE: August 15, 2023 AGENDA ITEM:ORIGINATING DEP: City Clerk CITY MANAGER: &3JJi.PREPARED BY: Gabrielle Morones, Deputy City Clerk SUBJECT: City Council Minutes
RECOMMENDED ACTION(S): Approve minutes from the July 18, 2023 Regular City Council Meeting.
REPORT SUMMARY: Although the live recording is the official record of public meetings, minutes are prepared for the Council’s approval.FISCAL IMPACTS: N/A.
GOAL ALIGNMENT: Not Aligned.CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: N/A.
FOLLOW UP ACTION: File minutes in the City Clerk’s office.
ADVERTISING, NOTICE AND PUBLIC CONTACT: The item was properly listed onthe posted agenda pursuant to the Brown Act.ATTACHMENTS:
• July 18, 2023 Regular City Council Meeting Minutes
AVALON CITY COUNCIL MEETING
TUESDAY, AUGUST 1, 2023
THIS VIRTUAL MEETING IS HELD PURSUANT TO AB 361
MINUTES
Due to social distancing recommendations from the Center for Disease Control and State of California Division of Occupational Safety and Health (Cal/OSHA) and the County of Los Angeles and pursuant to findings made under AB 361, the CITY OF AVALON’S CITY COUNCIL SHALL GENERALLY BE AVAILABLE TO THE PUBLIC REMOTELY. The general public may attend the meeting in the Council Chambers however must adhere to social distancing requirements. The public is encouraged to watch and participate from the safety of their homes while practicing social distancing.
Council Chambers are open to a maximum 30 members of the general public. Once the Council Chambers reach maximum occupancy, the general public may participate in Oral Communication and address the City Council on an agenda item in person by waiting in theCity Hall Court Yard and entering the Chambers one at a time at the appropriate time. No one wifl be admitted into the Council Chambers who is ill or exhibiting symptoms of COVID-19.Additionally the general public may participate in Oral Communication and address the City Council on an agenda items by providing comments via Zoom or by sending comments to [email protected] TO ORDER-5:00 p.m.
ROLL CALL-Present via Teleconference and In-Person: Mayor Anni Marshall, Councilmembers Lisa Lavelle, Michael Ponce, Mary Schickling and Yesenia De La Rosa. Also present: City Manager David Maistros, City Attorney Scott Campbell and Deputy City Clerk Gabrielle Morones.
WRITTEN COMMUNICATIONS-Staff received 8 written communications regarding Item #8 The Moratorium on the Issuance of Transient Rental Licenses for Transient Rental Use to New Applicants from Mary Stein and Randy Brannock, Cinde Cassidy, Leslie Warner, Lindsey and Pat Mattingly, Constance Rux, Greg Freeman, Donna Sharpe and Kate Ruddon. Copies were distributed to council and are on file in the City Clerk’s office.
PRESENTATIONS -NONE.CONSENT CALENDAR-There were 6 Items on the Consent Calendar. Motion to approve Items #1-#6 made by Michael Ponce. seconded by Lisa Lavelle. (All Ayes)
1. Minutes
Approved minutes from the July 18, 2023 regular City Council Meeting.
2. Warrants
Approved warrants from the General Account in the amount of $1,558,739.34, CaIPERS Unfunded Accrued Liability payment for FY 23-24 in the amount of $252,450.00, onepayroll in the amount of $249,949.01, three electronic fund transfers totaling $44,190.60 for a total expenditure of $2,966,307.09 for July 10, 2023 through July21, 2023.
CITY COUNCIL MINUTES
AUGUST 1, 2023
PAGE 2
3. Fiscal Year 2022-2023 Fourth Quarter Treasurer’s Report Adopted Resolution No. SA 23-25 of the City Council of the City of Avalon/Successor Agency to the Avalon Community Improvement Agency adopting the Treasurer’s Investment Report for Fiscal Year 2022/2023 Fourth Quarter.
4. Annual Sewer Project Request for Proposals
Authorized the City Manager or his designee to solicit a request for proposals for qualified firms to implement the City’s Annual Sewer Project Infrastructure Plan (Capital Improvement Project Number 205012).
5. Citywide Street Rehabilitation Program Request for Proposals Authorized the City Manager or his designee to solicit a request for proposals for qualified firms to implement the City’s Citywide Street Rehabilitation Program (Capital Improvement Project Number 180041).
6. Wastewater Treatment Plant Backup Generator Procurement Authorized the City Manager or his designee to procure a used backup generator in accordance with the City’s procurement standards for a not to exceed cost of $85,000.
PUBLIC HEARING
7. Revised Fiscal Year 2023-2024 Miscellaneous Fee Schedule
1. City Council heard a presentation regarding the Miscellaneous Fee Schedule.
2. Mayor Marshall opened the Public Hearing to hear public comments, no comments were made. 3. Mayor Marshall closed the Public Hearing. 4. Adopted the fee schedule with revisions as proposed and adopted Resolution No. 23-26 of the City of Avalon Setting Fees for Services, Facilities and Activities of the City of Avalon for Fiscal Year2023-24.
Motion to approve made by Lisa Lavelle, seconded by Michael Ponce. (All Ayes)
GENERAL BUSINESS
8. Moratorium on the Issuance of Transient Rental Licenses for Transient Rental Use to New Applicants
Adopted Urgency Ordinance No. U-1212-23 of the City of Avalon Establishing a Forty Five Day Moratorium on the Issuance of Transient Rental Licenses for Transient RentalUse to New Applicants.
Motion to approve made by Anni Marshall, seconded by Lisa Lavelle. (All Ayes)
CITY COUNCIL MINUTES
AUGUST 1, 2023
PAGE 3
Mayor Marshall adjourned the meeting at 6:19 p.m.
I, Gabrielle Morones, Deputy City Clerk, do hereby certify that the DVD videotape of the Regular City Council Meeting on August 1 2023, is the official record of the Council Meeting and is on file and maintained in City Hall.
Gabrielle Morones, Deputy City Clerk
CITY OF AVALON CITY COUNCIL
MEETING DATE: August 15, 2023 AGENDA ITEM: 2-
ORIGINATING DEP: Finance CITY MANAGER: JAJK
PREPARED BY: Matthew Baker, Finance Director
SUBJECT: Warrants
RECOMMENDED ACTION(S): Approve total expenditures for July 24, 2023 through August 4, 2023 totaling $1,545,497.39.
REPORT SUMMARY: These disbursements through August 4th are comprised of warrants from the General Account totaling $1,165,248.26, one payroll totaling $256,555.09, and otherelectronic fund transfers totaling $123,694.04.
ITEM DESCRIPTION AMOUNT DATE
GF US BANK WARRANTS CK# 36387-36568 $ 1,165,248.26 08/04/23 PAYROLL 256,555.09 07/28/23EFT -CALPERS MEDICAL 83,724.23 08/02/23EFT -CALPERS RETIREMENT 38,662.25 07/31/23 EFT -HARBOR/REC CREDIT CARD AND BANK SERVICE FEES 1,307.56 08/04/23 TOTAL DISBURSEMENTS $ 1,545,497.39
GOAL ALIGNMENT: Ongoing meeting of City obligations.FISCAL IMPACTS: There are sufficient funds available, and the expenditures are included in the FY22-23 Budget and FY23-24 Budget.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: N/A
FOLLOW UP ACTION: N/A
ADVERTISING, NOTICE AND PUBLIC CONTACT: Pursuant to the Brown Act.ATTACHMENTS: Audit Certificate, Warrant List,
CITY OF AVALON
JULY 24, 2023- AUGUST 4,2023 DISBURSEMENTS
August 15, 2023
E ITEM DESCRIPTION AMOUNT DATE SF L’S BANK WARRANTS CK# 36387-36568 $ 1,165,248.26 08/04/23 PAYROLL 256,555.09 07/28/23[FT -CALPERS MEDICAL 83,724.23 D8/D2/23EFI CALPERS RETIREMENT 38,662.25 07/31/23 EFT - HARBOR/REC CREDIT CARD AND BANK SERVICE FEES 1,307.56 08/04/23 TOTAL DISBURSEMENTS $ 1,545,497.39
CERTIFICATE
IN ACCORDANCE WITH SECTION 32702
OF THE GOVERNMENT CODE, I CERTIFY
THAT THE ABOVE DEMANDS ARE ACCURATEAND THAT FUNDS ARE AVAILABLE FOR PAYMENT.
APPROVED AND AUDITED THIS
15TH DAY CE AUGUST 2023 I CERTIFY UNDER PENALTY OF PERJURY
THAT THE FOREGOING IS TRUE AND
CORRECT.
AUDIT COMMI1TEE - LISA LAVELLE EXECUTED THIS 15TH DAY OF AUGUST 2023
AUDIT COMMITTEE -MARY SCHICKLING FINANCE DIRECTOR -MATTHEW BAKER
CITY OF AVALON
JULY 24, 2023- AUGUST 4,2023 DISBURSEMENTS
August 15, 2023
STILL,VAN, ERICA
CATALINA ISLAND MEDICAL CENTER
ALBERTSON COMPANIESAMAZON CAPITAL SERVICES, INC.CARUSO FORD
CATALINA BEVERAGE CO
CATALINA ISLAND MEDICAL CENTER
CIRA
CMC RESCUE, INC.CO. OF LOS ANGELES SHERIFF’S DEPT.CONEY ISLANDDEPARTMENT OF JUSTICE
ESG ENGINEERINGESG ENGINEERINGESG ENGINEERING
ESG ENGINEERING
ESG ENGINEERINGESG ENGINEERINGESG ENGINEERING
ESG ENGINEERING
ESG ENGINEERING
ESG ENGINEERING
FIRE ACE INC.
GALLS, LLC
jONES, PETER
MATTHEWS INTERNATIONAL CORPORATION
MONTROSE ENVIRONMENTAL SOLUTIONS
ORIGINAL JACKS RESTAURANT & BAKERYNAPA AUTO PARTSSANCHEZ, TIMOTHY
PIACENTINI, JOHN
QUA DIE NTSOUTHERN COUNTIES LUBRICANTS, LLCSUPERION, LLC
WITIMAN ENTERPRISES, LLC
AAA OIL, INCAIR SOURCE INDUSTRIESAMAZON CAPITAL SERVICES, INC.
AMAZON CAPITAL SERVICES, INC.
AMERGENTTECHS, INCAVALON ENVIRONMENTAL SVCSAVALON FREIGHT SERVICES, LLCAVALON MOORING & DIVING BEYOND SOFTWARE SOLUTIONSBOW-N-ARROW SHOP, INC.
CAL TIP
CARUSO FORDCASTRO, MICHELLECATALINA BEVERAGE CO
CATALINA BROADBAND SOLUTIONSCATALINA CHAMBER OE COMMERCECATALINA COASTAL TOURS & FSHING CATALINA COFFEE & COOKIE CO.CATALINA EXPRESS
LONG, DAVID
JACKSON, JOHN HENRY
CATALINA ISLAND JANITORIAL
DESCRIPTION
VOID -ENTRY ERRORSALES TAX PASS THRU
SUPPLIES-ALL DEPARTMENTSSUPPLIES -ALL DEPTARTMENTS
SUPPLIES -GARAGE
SUPPLIES -ALL DEPTARTMENTS
EMPLOYEE SCREENINGS
WORKER’S COMP 04-06/2023
SUPPLIES -FIRE
WATERFRONT PATROL
- 06/2023
SENIOR MEALS - 04-06/2023
EMPLOYEE SCREENINGS
SERVICE - PUBLIC WORKS
SERVICE - PUBLIC WORKSSERVICE - PUBLIC WORKS
SERVICE - PUBLIC WORKSSERVICE -PUBLIC WORKS
SERVICE - PUBLIC WORKSSERVICE -PUBLIC WORKSSERVICE -PUBLIC WORKSSERVICE -PUBLIC WORKS
SERVICE - PUBLIC WORKSSUPPLIES -ALL DEPARTMENTS
UNIFORMS -HARBOR
PROGRESS PAYMENT 3
SUPPLIES - CEMETERY
COWRACI SERVICES- 06/2023, REPAIRS
SENIOR MEALS - 04-06/2023
SUPPLIES -GARAGESERVICE -ADMINISTRATION
REFUND -CEMETERYPOSTAGE REFILL
SUPPLIES -GARAGESOFTWARE LEASE - FINANCE
SERVICE -FINANCE
FUEL - ALL DEPARTMENTS
SERVICE - FIREVOID - MULTI STUB CHECKSUPPLIES -ALL DEPARTMENTS SERVICE -HARBORCONTRACT SERVICES -07/2023, SWEEPER 07/2023FREIGHT -ALL DEPARTMENTSSERVICE -HARBOR
CONTRACT SERVICES - ITSUPPLIES -RECRETION
INSURANCE POLICY FY24
SUPPLIES -GARAGE
SERVICE -RECREATIONSUPPLIES - ALL DEPARTMENTSSERVICE -FIRE TOT -08/2023CONTRACT SERVICES - 08/2023SERVICE -4TH OF JULY SUBSIDY - 07/2023, TRAVEL - GARAGE/SHERIFFSCONTRACT SERVICES - CDO
SERVICE - PUBLIC WORKSSERVICE -ADMINISTRATION
ISSUED AMOUNT NAME
CHECK DATE
NUMBER
36387 07/24/2023 (200.00)36463 08/03/2023 141,6082736464 08/04/2023 39.10 3646S 08/04/2023 131.4036466 08/04/2023 298 1036467 08/04/2023 129.80 36468 08/04/2023 975.73
36469 08/04/2023 23,922.2436470 08/04/2023 669.2436471 08/04/2023 16,990.45 36472 08/04/2023 1,440.0036473 08/04/2023 32.00
36474 08/04/2023 2,913.6836475 08/04/2023 1,205.5036476 08/04/2023 180.00 36477 08/04/2023 8,915,3436478 08/04/2023 2,0880036479 08/04/2023 12,9)9.01 36380 08/04/2023 120.0036481 08/04/2023 1,864.0036482 08/04/2023 1,760.00 36483 08/04/2023 5400036484 08/04/2023 3,169.24
36485 08/04/2023 127.8936486 08/04/2023 24,25604
36487 08/04/2023 167.64
36488 08/04/2023 121,294.2436489 08/04/2023 366.00
36490 08/04/2023 5)7.9736491 08/04/2023 SS.00
36492 08/04/2023 200.0036493 08/04/2023 384.6136494 08/04/2023 9,640523649S 08/04/2023 3,554.30 36496 08/04/2023 2,117.5036497 08/04/2023 4,TST.S236498 08/04/2023 T4S.25 36499 08/04/2023 -36500 08/04/2023 9,714.6136501 08/04/2023 5,50000 36502 08/04/2023 312,580.1336503 08/04/2023 365.8436504 08/04/2023 2,140.00 36505 08/04/2023 3,066.3036506 08/04/2023 1,659.4836507 08/04/2023 31,106.0036508 08/04/2023 215.24 36509 08/04/2023 100.00
36510 08/04/2023 1821036511 08/04/2023 12763
36511 08/04/2023 128,333.3336513 08/04/2023 24,083.3336514 08/04/2023 1,816.00 36515 08/04/2023 20,586.7036516 08/04/2023 7,800.0036517 08/04/2023 300.00 36538 08/04/2023 110_on
CITY OF AVALON
JULY 24, 2023- AUGUST 4,2023 DISBURSEMENTS
August 15, 2023
CHECK DATE
NUMBER ISSUED AMOUNT
CATALINA ISLAND MEDICAL CENTERCATALINA ISLAND MEDICAL CENTERCATALINA ISLANDERCATALINA PEST CONTROLCRARLIES CATALINA CANTINA
CICCS/EAPCONEY ISLANDCOOK, AMANDADELTA DENTAL
DELTA DENTALDION & SONS MARINE FUELS INCDION & SONS MARINE FUELS INCEMS SAFETY SERVICES, INCFIDELITY SECLRTY LIFE INSURANCE
FELTS, DANIELGONZALES, ALIANAGOVINVEST INC
GRAINGER
HAAKER
HDLCOREN &CONEHERNANDEZ, ROGER
STILLMAN, ERICA
JORDAHL CONSTRUCTION
KING, MICHAELW.KONIGSMARK, ROBERT FRANKMCMASTER-CARR
MM INTERNET, INCMONTROSE ENVIRONMENTAL SOLUTIONS
ORIGINAL JACKS RESTAURANT & BAKERY
NAPA AUTO PARTS
OC RAMPS, INC.
SANCHEZ, TIMOTHY
QUADIENT LEASING USA, INC.
QUILL CORP
RICOH AMERICAS CORPRICOH USA, INC
RUBIO, LUIS
SIRIA’S CLEANNG SERVICESTANDARD INSURANCE COMPANYSTANDARD INSURANCE COMPANY
SUNBELT RENTALS
SUPERION. LLC
U LINE
WANDA STONE
WEST MARINE PROWESTERN PUMP, INC.WESTRIDGE ENVIRONMENTAL GROUPWITFMAN ENTERPRISES, LLCXEROX CORPORATION
MARINE DIESEL SERVICES
DESCRIPTION
EMPLOYEE SCREENINGS
EMPLOYEE SCREENINGS
ADVERTISING - ALL DEPARTMENTS
SERVICE -HARBOR
SERVICE -RECREATIONSERVICE -ADMINISTRATIONSUPPLIES - RECREATION
RETIREE INSURANCE
- 08/2023
VOID - MULTI STUB CHECK
DENTAL - 07-08/2023
VOID - MULTI STUB CHECK
FUEL - HARBOR
SUPPLIES - HARBOR
VISION -07/2023SERVICE - 4TH OF JULY
REIMB 0/P COSTS
ANNUAL FEE
SUPPLIES - PUBLIC WORKS
SUPPLIES - PUBLIC WORKSSERVICE -FINANCE
REIMB 0/P COSTS
SERVICE - RECREATIONSUPPLIES - PUBLIC WORKS
SERVICE - 4TH OF JULY
SERVICE - 4TH OF JULY
SUPPLIES - HARBORSERVICE - IT
EMERGENCY REPAIRS -WWTP
SENIOR MEALS - 07/2023SUPPLIES - GARAGE
SUPPLIES - RECREATIONEMPLOYEE SCREENINGPOSTAGE METER LEASESUPPLIES - ALL DEPARTMENTS
COPIER LEASE - PLANNING
COPIER LEASE -PLANNINGSERVICE - 4TH OF JULY
1ST HALF 08/2023
VOID - MULTI STUB CHECK
LIFE INSURANCE -07-08/2023
SUPPLIES -WWTP
SOFTWARE LEASE - FINANCESUPPLIES - PUBLIC WORKSSERVICE -HARBORSUPPLIES - HARBORSUPPLIES -FUEL DOCK SUPPLIES - VqWTPSERVICE - IINANCECOPIER LEASE - ADMINISTRATIONSERVICE - HARBOR $ 1,165,248.26
NAME
36519 06/04/2023 868.0036520 08/04/2023 405.0036521 08/04/2023 183.00 36522 08/04/2023 268.0036523 08/04/2023 314.8836524 08/04/2023 2,566.80 36525 08/04/2023 105.00
36526 08/04/2023 262.52
36527 08/04/2023 -36528 08/04/2023 13,569.3936529 08/04/2023 - 36530 08/04/2023 3,331.48 36531 08/04/2023 662.2636532 08/04/2023 1,058.03
36533 08/04/2023 250.0036534 08/04/2023 46.4936535 08/04/2023 5,775.00 36536 08/04/2023 4,194.0636537 08/04/2023 1,397.2536538 08/04/2023 1,461.8636539 08/04/2023 55.3536540 08/04/2023 200.00 36541 08/04/2023 202.4036542 08/04/2023 250.00
36543 08/04/2023 250.0036544 08/04/2023 1,500.3836545 08/04/2023 344.1036S46 08/04/2023 26,540.91 36547 08/04/2023 324.0036548 08/04/2023 7,055.8436549 08/04/2023 10,045.54 36550 08/04/2023 55.0036551 08/04/2023 723.6036552 08/04/2023 1,623.0436553 08/04/2023 59.9536554 08/04/2023 423.48 36555 08/04/2D23 250.00
36556 08/04/2023 9,357.9136557 08/04/2023 -36558 08/04/2023 2,411.78 36559 08/04/2023 6,145.2536560 08/04/2023 3,909.8136561 08/04/2023 75.7436562 08/04/2023 565.0036563 08/04/2023 277.16 36564 08/04/2023 31,820.8236565 08/04/2023 5,751.8536566 08/04/2023 1,402.5036567 08/04/2023 411.43 36568 08/04/2023 21,259.93
CITY OF AVALON CITY COUNCIL
MEETING DATE: August 15, 2023 AGENDA ITEM; 3ORIGINATING DEP: City Attorney CITY MANAGER: WIA.
PREPARED BY: Scoff Campbell, City Attorney
SUBJECT: Findings to Continue to Hold Remote TeleconferenceNirtual City Council Meetings Pursuant to Assembly Bill 361
RECOMMENDED ACTION(S): Reconsider the circumstances of COVID-1 9 state of emergencyproclaimed by the Governor and COVID-19’s continued impact and determine that state or localofficials have imposed or recommended measures to promote social distancing in connection with COVID-19, and as such, that continuing to utilize the protections of Assembly Bill 361 will protect the health and safely of attendees.REPORT SUMMARY: Traditionally, the Brown Act allows for teleconference or virtual meetings, provided that the physical locations of the legislative body’s members joining by teleconference are posted on the agenda, that those locations are open to the public and that a quorum of themembers is located within its jurisdiction. AB 361 provides an exception to these procedures inorder to allow for fully virtual meetings during proclaimed emergencies, including the COVID-1 9pandemic.
Since March of 2020 and the issuance of Governor Newsom’s Executive Order N-29-20, which suspended portions of the Brown Act relating to teleconferencing, the City Council has had virtual meetings without having to post the location of the legislative body members attending virtually.
Most public agencies have been holding public meetings using virtual platforms since this time.
In June of 2021, Governor Newsom issued Executive Order N-08-21, which provided that the exceptions contained in EO N-29-20 would sunset on September 30, 2021.
On September 10, 2021, the Legislature adopted AB 361, which allows public agencies to hold fully virtual meetings under certain circumstances without the posting of the agenda from each location a legislative body member is attending. Governor Newsom signed the bill into law on September 16, 2021. Because it contained an urgency provision, it took immediate effect.
Specific Findings Required underAB 361
As the State of Emergency has ended, the City Council can continue to hold virtual meetings without providing notice of the City Council’s teleconference location if the City Council makes the following two findings:
1. State or local officials have imposed or recommended measures to promote social distancing in connection with COVID-19; and
2. The City Council reconsiders the circumstances of the state of the emergency and danger presented by COVID-19;
65059.00000\34520481 .1
Having made the findings, the City Council can continue every 30 days to authorize meetings under AB 261 to protect the health or safety of attendees.
COVID-19 continues to present a threat to the health or safety of members of the public. Although vaccines are now widely available! many people in the State and County are still not fully vaccinated and remain susceptible to infection. The disease can still spread through person-toperson contact and those in close proximity. According to the most recently published data, 87% of those tested statewide for Covid-1 9 tested positive, that is 4% higher than indicated on the laststaff report regarding AB 361. Covid-19 Hospitalizations are also up, from a daily average of 595 to 890 persons each day. An average of 8 people in California die each day due to Covid-19.Additionally, Cal/QHSA has implemented COVID-19 Prevention Non-Emergency Regulations that will remain in effect until February 3, 2025. The City’s economy is dependent upon visitorsto the island, the presence of which increases the likelihood of transmission of the disease. Also, having members of the public attend council meetings at locations where council members arein attendance due to their desire to avoid exposure to COVID-19 poses a risk to the health or safety of attendees.
Re-Authorization is Required Within 30 Days
The City Council made the required findings at its July 18, 2023 City Council meeting. Consistent with the provisions of AS 361, the new findings must be made every 30 days. Thus, if the City Council desires to continue to meet remotely without having to post the location of each teleconference location, the City Council reconsider the facts of the state of emergency and continued impact of COVID-19, find that state or local officials have imposed or recommended measures to promote social distancing in connection with COVID-19, and therefore, that remote meetings under AB 361 should continue in order to protect the health or safety of attendees.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: The City Council will have to follow the Brown Act provisions that existed prior to the CCVI D-19 pandemic.
FOLLOW UP ACTION: That the City Council make the findings under AB 361 at its September 12, 2023 City Council meeting.
GOAL ALIGNMENT: N/A
FISCAL IMPACTS: None.
ADVERTISING, NOTICE AND PUBLIC CONTACT: This item was properly listed on the posted agenda pursuant to the Brown Act.
ATTACHMENTS: None.
65059.00000\3452048 1.1
CITY OF AVALON CITY COUNCIL
MEETING DATE: August 15, 2023 AGENDA ITEM:
ORIGINATING DEP: Administration CITY MANAGER:
PREPARED BY: Kevin Schmidt, Assistant Harbormaster
SUBJECT: Grant Funding Application to the California Division of Boating and Waterways
RECOMMENDED ACTION(S): Adopt a resolution authorizing the application of grant funds from the California Division of Boating and Waterways Boating Infrastructure Grant, and authorize the City Manager, or their designee, to be the authorized signature on the grantapplication.
REPORT SUMMARY: The City of Avalon submitted a grant application on August 1, 2023 to the California Division of Boating and Waterways for a Tier I Boating Infrastructure Grant.
Though the grant application was executed by the City Manager on August 1, 2023, the grant requires a resolution from the City Council designating the City Manager, or his designee. as an authorized signer. The California Division of Boating and Waterways allows a grace period forresolution to be submitted after the submission deadline.
The grant application is for a construction project to replace the Club Dinghy Dock pier, pilings, ramp, and dock complex. The goal of this project is to replace the current aged and worn infrastructure to improve public shore-access to recreational boaters.
The City applied for, and was awarded, funding through this grant program in 2017 for the replacement of the Pump-out Float. That project was completed this past spring.
The grant program is comprised of 75% grant funds, 25% local match. The total project cost is estimated to be $266,000. The City requested $199,500 in grant funds and the local match is $66,500.
GOAL ALIGNMENT: N/A
FISCAL IMPACTS: $66,500 in Harbor Funds if awarded.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: The submittedapplication will not be complete.
FOLLOW UP ACTION: Submit Resolution to the California Division of Boating and Waterways to complete the grant application.
ADVERTISING, NOTICE AND PUBLIC CONTACT: This item was properly listed on the posted agenda pursuant to the Brown Act.
ATTACHMENTS: Resolution
RESOLUTION NO.____________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AVALON
APPROVING THE SUBMITTAL OF AN APPLICATION FOR FUNDING FROM
THE STATE OF CALIFORNIA DEPARTMENT OF PARKS AND RECREATION
DIVISION OF BOATING AND WATERWAYS FOR THE TIER I BOATING
INFRASTRUCTURE GRANT
WHEREAS, The City of Avalon has the authority to construct, operate and maintain the public docks within the City of Avalon; and WHEREAS, The City of Avalon is requesting a grant from the Division of Boating and Waterways Tier I Boating Infrastructure Program; and WHEREAS, The City of Avalon desires to renovate and replace the Club Dinghy Dock including the pier, pilings, ramp and dock complex; and WHEREAS, Improvements will meet the needs of users and improve shore access for recreational boaters using Avalon Harbor, therefore:
BE IT RESOLVED by the City of Avalon that, pursuant and subject to all of the terms and provisions of the Boating Infrastructure Grant program, anapplication will be submitted to the State of California, Department of Parks and Recreation, Division of Boating and Waterways for funding; and BE IT FURTHER RESOLVED the City Manager, or his designee, is hereby authorized and directed to cause the necessary data to be prepared and application be signed and filed with the Division of Boating and Waterways.
Passed, Approved and Adopted on the 1 5th day of August, 2023 by the CityCouncil of the City of Avalon by the following vote:
Ayes:
Noes:
Absent:
Ann H. Marshall, Mayor
Gabrielle Morones, Deputy City Clerk
CITY OF AVALON CITY COUNCIL
MEETING DATE: August 15, 2023 AGENDA ITEM:
ORIGINATING DEP: Public Works CITY MANAGER: 4\jA’{LtPREPARED BY: Robert Greenlaw, Director of Public Works SUBJECT: Engineered Solution Group On-Call Engineering Services Contract Extension and Annual Increase
RECOMMENDED ACTION(S): Authorize the City Manager to execute an amendment to the City’s On-Call Engineering Professional Services Agreement with Engineered Solution Group, renewing the contract term for an additional two-year period effective January 1, 2024, and increasing the contracted maximum annual cumulative total for all services from $500,000 to$800,000 effective immediately.REPORT SUMMAR’Y: On January 7, 2020, the City Council authorized the City Manager to contract professional services for on-call engineering with Engineered Solution Group (ESG) for a not to exceed annual amount of $500,000. The original contract term was from January 8, 2020 to December 31, 2023, with two additional one-year renewal terms.
The City has several Capital Improvement Program (CIP) projects and on-going maintenance needs that occasionally require technical areas of service. The City utilizes the services of ESG for various civil engineering services including, but not limited to design, review, coordination, administration and construction engineering and technical support of day-to-day Public Works operations of City Staff and Capital Improvement Projects.Due to the COVID-19 Pandemic, the City delayed implementation of many CIP projects. The delay in implementation as well as the growing and varied nature of current, ongoing City projects, has caused an increase in the utilization of ESG services in 2023.Many of the City’s projects have a specific timeline. In some cases, the need for services is oflimited scope and timeline, making it beneficial from a cost and timing perspective to have someone “on-call.” Alternatively, a request for proposals for technical areas of engineeringservices could be solicited for each project and task. This option requires additional time andadministrative preparation for each contract and can be cost prohibitive for certain projects that have specific timelines or require immediate services.
Task orders for on-call services are driven by the approved budget. Annually funds cannot be spent unless they are a part of an approved, budgeted, project or account or receive additionalCity Council approval in accordance with the approved budget and fiscal policies of the budget.
Task orders related to grant funds may be eligible for reimbursement or payment through grants, and are accounted for in the grant project’s budget.
In order to continue to efficiently move CIP projects, and other maintenance programs, forward, City Staff recommend the City Council authorizes the City Manager, or his designee,to execute an amendment to the City’s On-Call Engineering Profes&onal Services Agreementwith Engineered Solution Group, renewing the contract term for an additional two-year period effective January 1, 2024, and increasing the contracted maximum annual cumulative total forall services from $500000 to $800,000 effective immediately.
The amendment will have negligible fiscal impact as all task orders associated with ESG’sscope of work are approved and budgeted within the CIP and maintenance program.
FISCAL IMPACTS: Not to exceed S800,000 for all task orders per fiscal year for all approved on-call engineer services, effective September 1, 2023. for an additional two year period expiring December 31, 2025. Funding will be allocated to the appropriate budgeted project.
GOAL ALIGNMENT: Efficient operations. Fiscal responsibility.CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: The City will need to procure the engineering related services for each project and task order which may take more time and cost additional funds.
FOLLOW UP ACTION: Implement City Council direction.
ADVERTISING, NOTICE AND PUBLIC CONTACT: Pursuant to the Brown Act.
ATTACHMENTS:
1. Professional Services Agreement.
2. Proposed Amendment.
r
CITY OF AVALON
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is. made and entered into this 8th day of January, 2020, by and between the City of Avalon, a municipal corporation organized under the laws of the State ofCalifornia with its principal place of business at 410 Avalon Canyon Road, Avalon, California 90704 (“City’1) and Engineered Solutions Group, a S-corporation, with its principal place of business at 1142 South Diamond Bar Boulevard, Suite 226, Diamond Bar, CA 91765 (“Consultant’). City and Consultant are sometimes individually referred to herein as “Party” andcollectively as “Parties.”
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement.Consultant represents that it is experienced in providing engineering services to public clients, islicensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional services for the on-call engineering services 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 City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional engineering consulting 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, andperformed in accordance with, this Agreement, the exhibits attached hereto and incorporatedherein by reference, and all applicable local, state and federal laws, rules and regulations.
Additionally, Consultant shall comply with all Federal requirements applicable to the Services as set forth in Exhibit “A-I” attached hereto and incorporated herein by this reference.
3.1.2 Term. The term of this Agreement shall be from January 1, 2020 to December 31, 2023, unless earlier terminated as provided herein The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more thantwo additional one-year terms.***] Consultant shall complete the Services within the term of this (BB&K 2019)
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Agreement, and shall meet any other established schedules and deadlines.
3.2 Responsibilities of Consultant.
3.2.1 Independent Contractor: Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine themeans, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Consultant relains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant’s exclusive direction and control. Neither City, nor any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultant’s officers, employees, or agents, except as set forth in this Agreement. 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 beresponsible for all reports and obligations respecting such additional personnel, including, but notlimited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
32.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit “B” attached hereto and incorporated herein by reference. Consultant represents that ithas the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant’s conformance with the Schedule, City shall respond to ConsultanCs submittals in a timely manner. Upon request of City, Consultant shallprovide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
3,2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Shouldone or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultantcannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to beuncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consuitant at the request of the City. The key personnel for performance of this Agreement areas follows; Michael Thomas, Director of Engineering, Angelo Reginaldo, Principal Civil Engineer, Aristotle Bondoc, Principal Civil Engineer, JR Rhoads, Principal Water/WastewaterEngineer, Gener Detera, Principal Electrical Engineer. (BB&K 2019)
32.5 CitYs Representative, The City hereby designates Robert Greenlaw, Public Works Director, or his/her designee, to act as its representative in all mailers pertaining to the administration and performance of this Agreement (“Cit/s Representative’). City’s Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Work or change the total compensation due to Consultant under this Agreement. The City Manager shall beauthorized to act on City’s behalf and to execute all necessary documents which enlarge the Scope of Work or change the Consultant’s total compensation subject to the provisions contained in Section 3.3 of this Agreement. Consultant shall not accept direction or orders from anyperson other than the City Manager, City’s Representative or hislher designee.
3.2.6 Consultanvs Representative. Consultant hereby designates Michael Thomas, Director of Engineering, 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 underthis Agreement. The Consultant’s Representative shall supervise and direct the Services, usinghis/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 Servicesunder this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, consultants and other staff at all reasonable times.
3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standardsgenerally recognized as being employed by professionals in the same discipline in the State ofCalifornia. Consultant represents and maintains that it is skilled in the professional callingnecessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Finally,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.As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary tocorrect errors or omissions which are caused by the Consultant’s failure to comply with thestandard of care provided for herein. Any employee of the Consultant or its sub-consultants whois determined by the City 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 employee who failsor refuses to perform the Services in a manner acceptable to the City, 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.
3.2.9 Period of Performance. 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’S” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agreesthat if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Project Milestones developed pursuant to provisions of this Agreement, it is (8B&K 2019)
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understood, acknowledged and agreed that the City will suffer damage.
3.2.10 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 forall violations of such laws and regulations in connection with Services. If Consultant performsany work knowing it to be contrary to such laws, rules and regulations, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees, agents, and volunteers free and harmless, pursuant to theindemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
3.2.10.1 Employment Eligibility; Consultant. By executing this Agreement, Consultant 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. Suchrequirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Consultant.
Consultant also verifies that it has not committed 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. Consultant shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by someother legally acceptable method. Consultant shall maintain records of each such verification, andshall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses relatedto Consultant’s compliance with the requirements provided for in Section 3.2.10 or any of its subsections.
3.2.10.2 Employment Eligibility; Subcontractors, Consultants, Subsubcontractors and Subconsultants. To the same extent and under the same conditions as Consultant, Consultant shall require all of its subcontractors, consultants, sub-subcontractors and subconsultants performing any work relating to the Project or this Agreement to make the sameverifications and comply with all requirements and restrictions provided for in Section3.2.10.1.
3.2.10.3 Employment Eligibility; Failure to Comply, Each person executing this Agreement on behalf of Consultant verifies that they are a duly authorized officer of Consultant, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Consultant or its subcontractors, consultants, subsubcontractors or subconsultants to meet any of the requirements provided for in Sections
3.2.10.1 013.2.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Consultant under Section
3.2.10.2); or (3) failure to immediately remove from the Project any person found not to be in compliance with such requirements.
3.2.10.4 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee (BB&K 2019)
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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 toinitial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City’s Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.2.10.5 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/orproviding services, including, but not limited to, emissions limits and permitting requirementsimposed by the South Coast Air Quality Management District (SCAQMD) and/or California AirResources Board (CARS). Although the SCAQMD and CARB limits and requirements are morebroad, Consultant shall specifically be aware of their application to ‘portable equipment”, which definition is considered by SCAQMD and CARS to include any item of equipment with a fuelpowered engine. Consultant shall indemnify City against any fines or penalties imposed bySCAQMD, CARS, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its sub-consultants, or others for whom Consultantis responsible under its indemnity obligations provided for in this Agreement.
3.2.10.6 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 Consultantshall 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, where applicable, shall include, but shall not be limited to: (A) adequate lifeprotection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subconsultants, such as safe walkways, scaffolds, fall protection ladders, bridges,gang planks, confined space procedures, trenching and shoring, equipment and other safetydevices, equipment and wearing apparel as are necessary or lawfully required to preventaccidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
3.2.11 Insurance.
3.2.11.1 Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured allinsurance 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 City thatthe subconsultant has secured all insurance required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreementfor cause.
3.2.11.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting theindemnity provisions of the Agreement, the Consultant, in partial performance of its obligationsunder 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.
(B B&K 201 9)
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(A) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office “occurrence form CG 0001, or the exact equivalent, with limits of not less than $1,000,000 per occurrence and no less than in the general aggregate. Defense costs shall be paid in addition to thelimits. The policy shall contain no endorsements or provisions (1) limiting coverage for 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.
‘iiIfl :3’QC)(
(B) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering “Any Auto” (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less
combined limit for each occurrence. If
Consultant does not own any company vehicles or may not be able to purchase a Business Automobile Insurance Policy, the requirement may be satisfied by providing either of the following:
(1) a Personal Automobile Liability policy for the Consultant’s own vehicle stipulating “Automobile Liability Insurance with a limit of not less than $1,000,000 each accident”; or (2) a non-owned auto endorsement to the Commercial General Liability policy if Consultant uses vehicles of others (eg., vehicles ot employees).
(B) 1 Where the services to be provided by Consultant under this Agreement are design professional services as that term is defined under Civil Code Section2782.8, Consultant agrees to indemnify, defend and hold harmless, the City, its officers,officials, employees and volunteers from any and all claims, demands, costs or liability that actually or allegedly arise out of, or pertain to, or relate to the negligence, recklessness or willfulmisconduct of Consultant and its agents in the performance of services under this contract, butthis indemnity does not apply to liability for damages for bodily injury, property damage or other loss, arising from the sole negligence, active negligence or willful misconduct by the City, itsofficers, official employees, and volunteers. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, then Consultant’s indemnification and defense obligations shall be reduced in proportion to the established comparative liability of the indemnified party and shall not exceed the Consultant’s proportionate percentage of fault.
As respects all acts or omissions which do not arise directly out of the performance of design professional services, including but not limited to those acts or omissions normally covered by general and automobile liability insurance, Consultant agrees to indemnity, defend and hold harmless the City, its officers officials, employees and volunteers for an against any claim, demands, losses, liability of any kind or nature arising out of or in connection with the Consultant’s performance or failure to perform under the terms of this contract, excepting those which arise out of the active negligence, sole negligence or willful misconduct of the City, its officers, officials, employees and volunteers
Insurance, as
not less than
(C) Workers’ Compensation: Workers’ Compensation
uired by the State of California and Employer’s Liability Insurance with a limit of per accident for bodily injury and disease.
(0) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession withlimits of not less than Covered professional services shall specifically include all (BS&K 2019)
:i OOO,OU
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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 ona claims-made basis, the retroactive date shall precede the effective date of the initial Agreementand 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. (E) Pollution Liability: Pollution Liability Insurance covering all of the consultant’s oporationo to include onoito and offoite coverage for bodily injury (including deathand menta! n uish , re erty damage, defense seats and cleanup costs with lim4s-ef-not-les& than ...a— The policy shall contain ne
ondorcomontc or provisions limiting contractual liability or covorage for cross liability of claims orsuits by one insured against another. If coverage is written on a claims mado basis, thoretroactive date shall precede the effective date of the initial Agreemc*and continuous coverage will bo maintainod or an extended reporting poriod will bo exorcised for a poriod of at least three (3) years from termination or expiration of this Agreemont.
3.2.11.3 Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability: (1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with (B8&K 2019)
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 coveragereduced until a thirty (30) day written notice of cancellation has been served upon the City 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 City except ten (10) days shall be allowed for non-paymentof 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 City except ten (10) days shall be allowedfor 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” theinsured and include a provision establishing the insurer’s duty to defend. (D) Workers’ Compensation: (1) Cancellation: Required
insurance policies shall not be canceled or the coverage reduced until a thirty (30) day writtennotice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that theinsurer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers.
3.2.11.4 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any otherinsurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or beendorsed to contain such provisions.
3.2.11.5 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 City, 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 City, and shall require similar written express waivers and insurance clauses from eachof its subconsultants.
3.2.11.6 Deductibles and Self-Insured Retentions. Any deductible or self insured retention must be approved in writing by the City and shall protect the City, 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.
(BB&K 2019)
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3.2.11.7 Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shalldeliver either certified copies of the required policies, or original certificates on forms approved bythe City, together with all endorsements affecting each policy. Required insurance policies shallnot be in compliance if they include any limiting provision or endorsement that has not beensubmitted to the City for approval. The certificates and endorsements for each insurance policyshall 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 City. If suchcoverage 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 City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
3.2.11.8 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 insurancethrough surplus line brokers under applicable provisions of the California Insurance Code or anyfederal law.
3.2.11.9 Enforcement of Agreement Provisions (non estoppel).
Consultant acknowledges and agrees that actual or alleged failure on the part of the City to informConsultant of non-compliance with any requirement imposes no additional obligation on the Citynor does it waive any rights hereunder.
3.2.11.10 Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, orother requirement, or a waiver of any coverage normally provided by any insurance.
3.2.11.11 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 theCity, 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, City has the right but not the duty to obtain the insurance it deems necessaryand any premium paid by City will be promptly reimbursed by Consultant or City will withholdamounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(C) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (BB&K 2019)
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(D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue ofthis 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 ofliability. Further the limits set forth herein shall not be construed to relieve the Consultant fromliability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
(F) Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Servicesunder this Agreement.
3.2.11.12 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 City, 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 City, its officials, officers, employees, agents andvolunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant tocommence work on any subcontract relating to this Agreement until it has received satisfactoryevidence 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 City.
3.2.12 Water Quality Management and Compliance.
3.2.12.1 Storm Water Management. Storm, surface, nuisance, or other waters may be encountered at various times during the Services. Consultant hereby acknowledges that it has investigated the risk arising from such waters, and assumes any and all risks and liabilities arising therefrom.
32.12.2 Compliance with Water Quality Laws, Ordinances and Regulations. Consultant shall keep itself and all subcontractors, staff, and employees fullyinformed of and in compliance with all local, state and federal laws, rules and regulations that mayimpact, or be implicated by the performance of the Services including, without limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1261, 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 lawfulrequirements of the City, 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.
(DB&I< 2019)
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3.2.12.3 Standard of Care. Consultant 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 inSection 3.2.12.2 of this Agreement. Consultant further warrants that it, its employees andsubcontractors have or will receive adequate training, as determined by the City, regarding these requirements as they may relate to the Services.
3.2.12.4 Liability for Non-compliance.
(A) Indemnity: Failure to comply with laws, regulations, and ordinances listed in Section 3.2.14.2 of this Agreement is a violation of federal and state law.
Notwithstanding any other indemnity contained in this Agreement, Consultant agrees to indemnify and hold harmless the City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, losses or liabilities of any kind or nature which the City, its officials, officers, agents, employees and authorized volunteers may sustain or incur fornoncompliance with the laws, regulations, and ordinances listed above, arising out of or inconnection with the Services, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers.
(B) Defense: City reserves the right to defend any enforcement action or civil action brought against the City for Consultant’s failure to comply with any applicable water quality law, regulation, or policy. Consultant hereby agrees to be bound by, and to reimburse the City for the costs associated with, any settlement reached between the City and the relevant enforcement entity.
(C) Damages: City 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 Section 3.2.12.2 of this Agreement, or any other relevant water quality law, re9ulation, or policy.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shallnot exceed $500,000 of executed task orders per fiscal year, ($500,000) without written approval of the City Council or City 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.
3.3.2 Payment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. Theinvoice 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.
City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges thereon. If the City disputes any of Consultant’s fees, the City shall givewritten notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed forany (BB&K 2019)
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expenses unless authorized in writing by City, or included in Exhibit “C” of this Agreement.
3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, “Extra Work” means any work whichis determined by City to be necessary for the proper completion of the Project, but which theParties 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 City.
3.3.5 Rate Increases. In the event that this Agreement is renewed pursuant lo 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.”
3.4 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. City shallprovide Consultant with a copy of the prevailing rates of per diem wages in effect at thecommencement 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 Consultanfs principalplace of business and at the project site. It is the intent of the parties to effectuate therequirements 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 City, itsofficials, officers, employees, agents, and volunteers free and harmless from any claim or liabilityarising 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 formaintenance 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 Department of Industrial Relations against Consultant or any subconsultarit that affect Consultant’s performance of services, including any delay, shall be 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 City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant. (885K 2019)
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3.4.3 Labor Certification. By its signature hereunder, Consuftant 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-insurancein accordance with the provisions of that Code, and agrees to comply with such provisions beforecommencing 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 suchrecords shall be clearly identifiable. Consultant shall allow a representative of City 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. City 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, Consultantshall be compensated only for those services which have been adequately rendered to City, 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, City may require Consultant to provide all finished or unfinished Documents andData 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 andother 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, City may procure, upon such terms and in such manner asit 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 therespective parties may provide in writing for this purpose:
Consultant: Engineered Solutions Group
1142 South Diamond Bar
Boulevard, Suite 226Diamond Bar, CA, 91765
ATTN: Michael Thomas
City: City of Avalon
410 Avalon Canyon Road
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Avalon, CA 90704
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ATTN: Robert Greenlaw, Public Works Director
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 itsapplicable address. Actual notice shall be deemed adequate notice on the date actual noticeoccurred, 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 City 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 inany 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 beprepared by Consultant under this Agreement (“Documents & Data”). All Documents
& Data shall
be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required
by City. City 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 City at the actual cost of duplication. In the event of a dispute regarding the amount of compensationto which the Consultant is entitled under the termination provisions of this Agreement, Consultantshall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City 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 City 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 City and provide City with the opportunity to obtain the documents.
3.6.3.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City 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 City.
3.6.3.3 Right to Use. City 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 Agreementor on a project other than this Project without employing the services of Consultant shall be at City’s sole risk. If City 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 thenegligent 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 City
(BD&K 2019)
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, aparty for whom the Consultant is legally responsible or liable, or anyone approved by theConsultant.
3.6.3.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless,pursuant to the indemnification provisions of this Agreement, for any alleged infringement of anypatent, copyilght, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including anymethod, 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, writteninformation, and other Documents & Data either created by or provided to Consultant inconnection with the performance of this Agreement shall be held confidential by Consultant. Suchmaterials shall not, without the prior written consent of City, be used by Consultant for anypurposes 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 useCity’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 City.
3.6.3.6 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information (“Proprietary Information”) unless the City’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 City 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 City writtennotice of Consultant’s objection to the City’s release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agentsfrom and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legalaction brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of the Objection Notice unless either: (1) Consultant fails to fully indemnify, defend (with City’s choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court ofcompetent jurisdiction requires that City 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.
3.6.5 Attorney’s 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 attorney’s fees and all other costs of such action.
3.6.6 Indemnification. To the fullest extent permitted by law, Consultant shall (B5&K 2019)
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defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causesof 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 toany 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’sServices, 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. Consultant’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
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 fullyincorporated 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.
3.6.7 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. This Agreement may only be modified by a writing signed by bothparties.
3.6.8 Governing Law; Government Code Claim Compliance. This Agreement shall be governed by the laws of the State of California. Venue shall be in Los Angeles 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 çq. prior to filing any lawsuit against the City. 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 issubmitted, or if any prerequisite contractual requirements are not otherwise satisfied as specifiedherein, Consultant shall be barred from bringing and maintaining a vald lawsuit against theCity.
3.6.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.6.10 City’s Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.
3.6.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.6.12 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and anyassignees,hypothecates or transferees shall acquire no right or interest by reason of such attempted (BB&K 2019)
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assignment, hypothecation or transfer.
3.6.13 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 termreferencing 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 subconsultantsof Consultant, except as otherwise specified in this Agreement. All references to City include itselected officials, officers, employees, agents, and volunteers except as otherwise specified in thisAgreement. The captions of the various articles and paragraphs are for convenience and easeof reference only, and do not define, limit, augment, or describe the scope, content, or intent ofthis Agreement.
3.6.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3,6.15 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 anycontractual rights by custom, estoppel, or otherwise.
3.6.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.6.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisionsshall continue in full force and effect.
3.6.18 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. Further, 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 considerationcontingent upon or resulting from the award or making of this Agreement. Consultant furtheragrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.6.19 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 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.
3.6.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
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3.7 Subcontracting.
3.7.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to allprovisions stipulated in this Agreement. [SIGNATURES ON NEXT PAGE)
(8B&K 2019)
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SIGNATURE PAGE TO
PROFESSIONAL SERVICES AGREEMENT BY AND
BETWEEN THE CITY OF AVALON AND ENGINEERED
SOLUTIONS GROUP
CITY OF AVALON Michael Thomas, P.E.
Engineered Solutions Group
By:
Denise A. Radde Michael Thomas
City Manager Chief Executive Officer
Attest;
City Clerk\Oets_t - Approved as to Form;
Best Best & Krieger LLP
City Attorney
(BB&i< 2019)
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SIGNATURE PAGE 10
PROFESSIONAL SERVICES AGREEMENT BY AND
BETWEEN THE CITY OF AVALON AND ENGINEERED
SOLUTIONS GROUP
CITY OF AVALON Michael Thomas, P.E.
Engineered Solutions Group
By:
Denise A. Radde 03) o Michael Thomas City Manager Chief Executive Officer Attest:
)&iL& citS City Clerk\OJ.
Approved as to Form:
Best Best & Krieger LiP
City Attorney
(BB&K 2019)
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EXHIBIT “A”
SCOPE OF SERVICES
The City of Avalon is requesting proposals for On-Call Engineering Services (“Services”). The selected consultant will perform the services outlined herein under the general direction of theCity’s Public Works Director. It is anticipated that the contract will commence January 1, 2020 for a three (3) year term. The cumulative dollar amount of executed task orders shall not exceed $500,000 per fiscal year. At the sole discretion of the City, an on-call contract may be extended for up to two (2) additional one (1) year terms following the close of the initial three (3) yearterm.
In general, the consultant shall perform Civil Engineering services, signed and stamped by a registered Civil Engineer in the State of California, on an “on-call” or “as-needed” basis for various civil engineering services including the design, review, coordination, administration, and construction engineering and technical support of day-to-day Public Works operations of City staff and Capital Improvement Project&The general engineering and technical areas of service req not limited to:
• Surveying And Mapping
• Civil Engineering• Geological/Geotechnical
Engineering
• Coastal Engineering• Water/Wastewater/Storm
Water/Drainage
• Street And Roadway• Traffic and Transportation• Site Planning, Permitting, Development, and Plan Review
uired by City may include, but are
• Environmental Documentation• CADD• Utility services and rates analysis• Construction Plans and Specifications
• Construction Reviews and Support• Construction Management• Estimating• Environmental Review and Reports• Public Outreach • Architectural
The consultant may be required to coordinate with other involved agencies. Coordination may include, but will not necessarily be limited to, the following:
Caltrans
• Federal Highway Administration• Federal and State Resource Agencies• California Coastal Commission• Regional and Local Agencies (such as Metro, Southern California Association of Governments, and Gateway Cities Council of Governments) • Regional Water Quality Control Board• Utility Companies The consultant shall be familiar with state and federal requirements regarding consultantselection and procurement processes for Architectural and Engineering (A&E) (Attachment 1) services defined as “program management, construction management, feasibility studies(includes environmental studies and analysis), preliminary engineering, design, engineering,surveying, mapping or architectural related services,” including:
On-call Engineering ServicesExhibit A Proposed Scope of Services A-i
• Federal aid highway projects such as Uniform Administrative Requirements, Cost principles, and Audit Requirements for Federal Awards in 2 CFR Part 2000, and consultant contract for engineering and design requirements (Architectural and Enineering or A&E) established in 23 USC Part 112, 40 USC Section 1101-1104 (Brooks Act), and 23 CFR Part 172.
• Public Contract Code (PCC) 10300-10334 (Goods) and 10335-1 0381 (non A&E Services)
• State A&E Consultant Agreement (Government Code 4525-4529.5) Caltrans Division of Local Assistance, Local Assistance Procedures Manual, Chapter 10, Consultant Selection (Attachment 2)
(BB&K 2018) Exhibit A’-I
See Attachment 1
EXHIBIT “A-I’
FEDERALLY REQUIRED PROVISIONS FOR SERVICES
(B3&K 2018) Exhibit A-I-1’
EXHIBIT “B”
SCHEDULE OF SERVICES
The consultant shall perform Civil Engineering services, signed and stamped by a registered Civil Engineer in the State of California, on an “on-call” or “as-needed” basis for various civil engineering services including the design, review, coordination, administration, and constructionengineering and technical support of day-to-day Public Works operations of City staff and Capital Improvement Projects.
(BB&K 2018) Exhibit 8-1
EXHIBIT “C”
COMPENSATION
Classification RateProject Manager $180Principal Engineer $160Senior Engineer $145DesignerlDrafter $120 Admin Services $65
1. Travel
GSA rates apply, with the following exception for Avalon, CA:Room rates will be invoiced actual costs not to exceed the amounts as follows:
Dates
Room Rate
April through September* $350/night
October through March* $220/night *Will use City-negotiated rates when possible
2. Other Direct Costs:
Actual amount invoiced.
3. Sub-consultants:
Actual invoiced rate plus 10%. Fees/rates to be agreed on Task Order basis. (BB&I< 2018) rxhibit c”-i
ATTACHMENT 1
Criteria
(Based on Z CFR Part
Type of Procurement 200, 1201 Acquisition
Public Contract Code All contracts for the acquisition or ease of goods in Goods (PCC) 10300 -1 0334 an amount oft wenty- five thousand dollars ($25,000), or a higher amount, shall be made or entered into with the lowest responsible biddermeeting specifications.
Consulting services contracts are exempt from theadvertising and bidding requirementsforcontracts inan amount of less than five thousand dollars Non A&E Services PCC 10 335-1 0381 ($5000)
State - A&E Consultant Government Code No dollar threshold stated, therefore, all A&E Agreement 4525-45 29.5 procurements must meet the GC requirements.
Federal - A&E Consultant 23 CFR 172 & 40 USC Nodollarthreshold allowed in CA, therefore, all Agreement 1100 (Brooks Act) A&E procurementsmust meet 085. >49 CFR Part 18 and 19 are cancelled by 2 CFR 200.> FHWA Implementation Guidance for 2 CFR 200 specifically requires that State and sub recipients willuse state-approved procurement procedures. > 2 CFR 200 states that sub recipients of States shall follow such policies and procedures allowed by theState when procuring property and seivices under a Federal award.>23 CFR 172 final rule for Small purchase states when a lower threshold for use of small purchaseprocedures is established in State law, regulation, or policy, the lower threshold shall apply to the use of FAHP funds.
ATTACHMENT 2
Local Assistance Procedures Manual Chapter 10
Consultant Selection
Chapter 10 Consultant Selection
Contents
Section 10.1: FEDERALLY FUNDED A&E CONTRACTS vi
10.1.1 General 1
Introduction 1Definition of an Architectural and Engineering Consultant 1 Architectural and Engineering Consultants 1
Non-A&E Consultants 2
Selecting the Project 2Subcontracted Services 2Organizational and Consultant Conflicts of Interest 2 Federal Regulation Governing Conflict of Interest (23 CFR 172.7(b)(4)) Requires tha 3 Consultants Performing Work on Multiple Phases of Federal-aid Projects 3
10.1.2 Identifying & Defining a Need for Consultants 4
Appointing the Contract Administrator 5Segmenting Consultant Work 6 Figure 10-2: Segmenting Consultant Work 7
Specify Products to be Delivered 7Scope of Consultant Work 7 Non-Discrimination Clause 7Disadvantaged Business Enterprise (DBE) Participation 7Determine Type of Contract 9Determining the Project Schedule 10Determine Method of Payment 11 Actual Cost-Plus-Fixed Fee 11
Cost Per Unit of Work 11
Specified Rates of Compensation 12
Lump Sum or Firm Fixed Price 12
10.1.3 A&E Consultant Audit and Review Process 12
Applicable Standards 13Audit Guidance Available 13Allowable Costs 14Approval or Acceptance of Indirect Cost Rates 15Cognizant Letters of Approval 15 Page i of ix
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Caltrans Acceptance of Indirect Cost Rate 15
Financial Review Performed Prior to Contract Execution 16 Local Agencies’ Responsibilities 17
Consultants’ Responsibilities (Both prime consultants and subconsultants) 18 Independent Office of Audits and Investigations’ Responsibilities 19 Audits and Reviews to be Performed 19
Indirect Cost Rate Audits 19
CPA Workpaper Reviews 19Contract Audits 20
Incurred Cost Audits 20
Audit Findings and Review Deficiencies 20
10.1.4 Consultant Selection Methods 22
One-Step RFP 23
One-Step RFQ 23
Two-Step (REQ Followed by RFP) 23
10.1.5 Consultant Selection Using the One-Step REP Method 26 Appoint Consultant Selection Committee 26
Develop Technical Criteria for Evaluation of Proposals 26Develop Schedule for Consultant Selection 27Prepare REP 27 Financial Management and Accounting System Requirements 28 Advertise for Consultants 28
Issue/Publish REP 29Conduct Proposer’s Conference or Answer Written Questions 29Receive and [valuate Technical Proposals 29Develop Final Ranking and Notify Consultants of Results 30Negotiate Contract with Top-Ranked Consultant 30
10.1.6 Consultant Selection Using the One-Step REQ Method 31 Appoint Consultant Selection Committee 32
Develop Technical Criteria for Evaluation of Qualifications 32 Develop Schedule for Consultant Selection 32Prepare RFQ 32 Financial Management and Accounting System Requirements 33 Advertise for Consultants 34Issue/Publish RFQ 34Receive/Evaluate Statements of Qualifications and Develop Shortlist 34 Page ii of ix
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Notify Consultants of Shortlist 35
Interview Top-Ranked Consultants.35
Develop Final Ranking and Notify Consultants of Results 36 Conduct Scoping Meeting 36
Request Cost Proposal 36Negotiate Contract with Top-Ranked Consultant 36
10.1.7 Consultant Selection Using the Two-Step RFQJRFP Method 38 Combined REQ and RFP 38
Categorize work 39
Establish Minimum Qualifications 40Issue REQ 40
Set-Up Evaluation Process 41
Evaluate Qualifications and Add Eirm to List 42
Maintain List 42
Issue REP to Pre-Qualified Consultants on List 42Conduct Proposer’s Conference or Answer Written Questions 43 Receive and Evaluate Technical Proposals 43
Develop Final Ranking and Notify Consultants of Results 43Request Cost Proposal and Negotiate Contract with Top-Ranked Consultant 44
10.1.8 Completing the Project 45
Develop the Final Contract 45Review and Approval of Contracts 45 Execute Contract and Issue Notice to Proceed to Consultant 46 Administer the Contract 47Substitution of Consultant Personnel and Subconsultants 47 Invoicing (or Progress Payments) 48
Contract Amendments 48
Performance Evaluation 49Project Records 49
Retention Clauses 51Review of Local Agency Actions 51
10,1.9 Miscellaneous Considerations 51
Agreements with Other Governmental Agencies 51Small Purchase Contracts 51 Noncompetitive Negotiated Contracts (Sole-Source) 52
Personal Services Contracts 52
Retaining a Consultant as an Agency Engineer or in Management Support Role 53 Construction Engineering Services 56
10.1.10 Program Management 56
10.1.11 References
.57
10.2 STATE-ONLY FUNDED A&E CONTRACTS 5910.2.1 General 60
10.2.2 Definition ofA&E 60
10.2.3 Minimum Audit Requirements 61
A. Written Procedures 61B. Conflict of Interest 61C. Records 61 D. Full
& Open competition 61
F. Selection Basis 62
F. Publication 62
G. Solicitation 62
H. Cost Analysis 621. Negotiations 62
10.3: NON-A&E CONTRACTS 67
Determining Non-A&E 67Example of Determining Non-A&E 67lnteliigent Transportation System (ITS) Projects 68Non-Infrastructure Projects 68 Governing Regulations and Codes for non-A&E 69
Procurement of Non-A&E Consultant Contracts 69
REP Basic Requirements 69
Additional Requirements and Evaluation Criteria 70
Consultant’s Proposal 70
Cost Proposal Worksheet 71DBE Consideration 71
Administrative Requirements 71Oral Presentations Optional 72 Cost-Effective/Public Interest Finding 72
Protest/Appeals/Reinstatement Procedures 72
Exhib its
Exhibits applicable to this chapter can be found at:
h ttps;//dot. ca. gov/programs/local-assistance/forms/local-assistance-procedures-rncinual-forms Exhibit 10-A; A&E Consultant Financial Document Review RequestExhibit 10-B: SuQqested Consultant Evaluation Sheet Exhibit 10-C: A&E Consultant Contract Reviewers Checklist Exhibit 10-G: Individual A&E Task Order OAf Utilization (needs linked) Exhibit 10-H: Sample Cost Proposal (Examplefli thru #4) Exhibit 10-I: Notice to Proposers DBE information
Exhibit 10-K: Consultant Annual Certification of Indirect Costs and Financial Management SystemExhibit 10-UI: Consultant Proposal OAF CommitmentExhibit 10 02: Consultant contracts DBE CommitmentExhibit 10-Q: Disclosure of Lobbying ActivitiesExhibit 10-It A&E Sample Contract Language Exhibit 10-5: Consultant Performance Evaluation
Exhibit lOt: Conflict of Interest & Confidentiality Statement Exhibit 10-U: Consultant in Management Support Role Conflict of interest and Confidentiality Statement Page v of ix
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Local Assistance Procedures Manual Chapter 10
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SECTION 10.1: FEDERALLY FUNDED A&E CONTRACTS
Procurement Planning
irsizzz> I1JI,J
*Select Project 3ldentify Need for Consultant *Estjmate cost of Consultant WorkSet Project Objectives Appoint Contract Administrator *Determine Type of Contract*Determine Project Schedule 4Segment Project Work (Project Specific or On-Call) *Obtain CTC Allocation/Federal *Define SOW of A&E Consultant Determine MOP: Lump Authorization to Proceed prior to *SPecify Products to be Sum; Actual Cost-Piusbeginning reimbursable work delivered Fixed-Fee; Cost Per Unft of *LAPM Exhibit 10-U: Work; or Specific Rate of
Consultant in Management Compensation
Support Role Conflict of
Interest and Confidentiality
Statement, if applicable:submit Conflict of Interestand Scope of Work (SOW) to DLA-HQ prior to
contract advertisement.
Figure la-i: A&E Contract Procurement Process Workflow Diagram Page vi of ix
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A&E Architectural and Engineering
IOAI = Caltrans Independent Office of Audits andInvestigations CT = Caltrans
DBE = Disadvantaged Business EnterpriseOLA = Division of Local AssistanceDLAE = District Local Assistance EngineerDLA-HQ = Division of Local Assistance-Headquarters LAPG = Local Assistance Program GuidelinesLAPM = Local Assistance Procedures ManualMOP = Method of PaymentRFP = Request for ProposalRFQ Request for Qualifications SOQ = Statement of QualificationsSOW = Statement/Scope of Work Local Assistance procedures Manual Chapter 10
Consultant Selection
s 16
[ [ ,ii4-(4g?J frzzz [. 4t;!1KEzz>
Determine Solicitation Document; *Prepare REP or REQ documents p Prepare to respond to RFP/RFQ REP or REQ lnclude SOW, evaluation questions *Appoint Consultant Selection process/criteria, DRE goals, MOP *Conduct Proposers Conference, if Committee and cost proposal format (see applicable
*Collect signed Conflict of Interest Exhibit 10-H: Sample Cost Receive Proposals or SOQs forms and Confidentiality Proposal) minimum requirementStatements (see Exhibit 10-T: of Proposal or 500. Notice to Conflict of Interest & Proposers OBF Information (seeConfidentiality Statement) from Exhibit 10-I: Notice to Proyosers all members involved in process OBE Information), subnittal *Determine Procurement Schedule deadline
tDevelop Technical Criteria *Advertise REP or REQ on public with level of importance forum (newspaper, technical
(weights) for Evaluation of publications, Web Hosting Site,Proposals or the 500 other local websites) *lssue RFP or RFQ (direct mailing,
web_posting)
Figure 10-1: A&E Contract Procurement Process Workflow Diagram- continued Page vii of ix
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A&E = Architectural and Engineering
IOAI = caltrans Independent Office of Audits andInvestigationsCT = CaltransDBE = Disadvantaged Business EnterpriseDLA = Division of Local Assistance DLAE = District Local Assistance EngineerDLA-HQ = Division of Local Assistance-HeadquartersLAPG = Local Assistance Program Guidelines LAPM = Local Assistance Procedures Manual
MOP = Method of PaymentRFP = Request for Propo5alRFQ = Request for Qualifications SOQ = Statement of QualificationsSOW = Statement/Scope of Work Local Assistance Procedures Manual Chapter 10
Consultant Selection
Evaluation and Selection of Consultant •-.‘j-h* >-•
ContrattNegótiation -
7 8 9
‘‘4J ‘4
‘Distribute Proposals or SOQs to -
Selection Committee members ‘Send out RFPs to Short List (two- ‘Open and analyze cost proposal ‘Ensure Committee members receive step process) from the Highest Ranked firm the appropriate score sheet to use
‘Conduct Interview of Short List (if
(see Exhibit 10-B: SuQgested needed)Consultant FyjypilonSheet) ‘Develop Final Ranking of ‘Convene Selec:ion Committee and Consultants, and notify allevaluate submittals; Perform interviewees ‘Reviev and evaluate 10-A
reference checks ‘Retain all original score sheets poekaqe and supporting ‘Develop Final Ranking or Short List * and summaries documents, if applicable‘Notify proposers of ranking/Short List Provide a copy of Standard ‘Issue Financial Review Letter if ‘Retain all original score sheets and Contract language to top a licable summa
ranked consultant and
ries
invite for negotiations
‘Perform contract audits and
(see Exhibit 70 R. A&E reviews, if applicable, or reviewSample COIIt’VCI of CPA audited ICR workpapers Language for standard to issue Cognizant Letter of
contract language and Approval
provisions)
Figure 10-1: A&E Contract Procurement Process Workflow Diagram- continued Page viii of ix
January 2019
A&E = Architectural and Engineering
IOAI = Caltrans Independent Office of Audits andInvestigations cT = Caltrans
DBE = Disadvantaged Business Enterprise
OLA = Division of Local AssistanceOLAE = District Local Assistance EngineerOLA-HQ = Division of Local Assistance-HeadquartersLAPG = Local Assistance Program Guidelines LAPM = Local Assistance Procedures ManualMOP = Method of PaymentRFP = Request for ProposalRFQ = Request for Qualifications SOQ = Statement of QualificationsSOW = Statement/Scope of Work Local Assistance Procedures Manual Chapter 10
Consultant Selection
Contract Negotiation
r
*Negotiate contract costs with the tFinalize contract, cost proposal most qualified consultant tRetain copy of contract Financial *prepare and retain record of cost Review Letter with acceptance, - ---- -— negotiations denial, or adjustment of the ICR *prior to concurring with invoice *Initiate CT IOAI Financial Review *sgn and Execute contract payment related to consultant Section (LAPM Section 1013) *offer and conduct debriefing services, ensure that district and send documents (Exhibit meetings with consultant who confirms acceptance of Exhibit10-A: A&E Consultant Financial asked for one 10-C and has a copy of thePQcQrtLent Review Request), if tSend copies of executed contract executed consultant contract onapplicable, to Caltrans IOAI and DBE Commitment (Exhibits file and 10-01 and 10-02. Also, tReceive and analyze findings of the 10-01: Consultant Proposal ODE check l0Al database to ensure Financial Review Letter from CT Commitment and Exhibit 10-02: that LAPM Exhibit 10-K:IOAI, if any Consultont Contract DDE Consultant Annual Certification *Address and resolve all findings by Commitment) to DLAE of Indirect Costs and Einoncial IOAI and incorporate into final tClose out contract procurement Management System, if contract and cost proposal process applicable, has been received by wlf negotiations with First ranked IOAI
firm is unsuccessful, formallyterminate cost negotiations with Consultant and begin Step 9 withnext ranked consultant *Perform Incurred Cost Audit, if *Send Exhibit 10-C to DLA-F-lQfor selected
acceptance prior to award
*Retain acceptance of Exhibit 10-C
from OLA-HQ
Figure 10-1: A&E Contract Procurement Process Workflow Diagram- continued Page ix of ix
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A&E = Architectural and Engineering
IOAI = Caltrans Independent Office of Audits andInvestigationsCT = Caltrans DBE = Disadvantaged Business EnterpriseDLA = Division of Local AssistanceDI.AE = District Local Assistance EngineerDI.A-HQ = Division of Local Assistance-HeadquartersLAPG = Local Assistance Program GuidelinesLAPM = Local Assistance Procedures ManualMOP = Method of PaymentRFP = Request for ProposalRFQ = Request for Qualifications SOQ = Statement of QualificationsSOW = Statement/Scope of Work Local Assistance Procedures Manual Chapter 10
Consultant Selection
10.1.1 GENERAL
Introduction
A local agency may engage consultants to perform architectural, engineering, and related services to develop a federal-aid funded project. Local agencies requesting federal funds toreimburse A&E Consultants must follow the selection arid contracting procedures detailed inthis chapter.
Definition of an ArchiteCtural and Engineering Consultant 23 Code of Federal Regulations §172 and CA State Law further defines A&E services andincludes those private consulting firms providing architectural, landscape architectural,engineering, environmental, land surveying, construction engineering, or program management are termed Architectural and Engineering (A&E) Consultants.
Architectural and Engineering Consultants
The Brooks Act (40 USC, Section 1104) requires local agencies to award federally funded engineering and design related contracts based on fair and open competitive negotiations, demonstrated competence, and professional qualifications (23 Code of Federal Regulations(CFR), Fart 172), at a fair and reasonable price (48 CFR 31.201-3).Cost proposals submitted to the local agency must be sealed and shall not be included as a criterion for rating such consultants. After ranking, cost negotiations may begin with the mostqualified consultant and only their cost proposal will be opened. Should negotiations fail or result in a price that the local agency does not consider fair and reasonable, negotiations mustbe formally terminated and the local agency must then undertake negotiations with the second most qualified consultant.
If the negotiations with the second most qualified firm are not successful, negotiations must beformally terminated and the local agency must then undertake negotiations with the third mostqualified consultant, and so on, until the price is determined to be fair and reasonable by thelocal agency.
In selecting an A&E consultant, a detailed technical proposal or qualifications proposal, and aproposed contract ivill be required.
Depending upon the scope of work, the required contract provisions may need to include the California State Prevailing Wages (Federal Payment of Predetermined Minimum Wage appliesonly to federal-aid construction contracts). Prevailing wages will apply if the services to be performed will involve land surveying (such as flag persons, survey party chief, rodman orchainman), materials sampling and testing (such as drilling rig operators, pile driving, crane operators), inspection work, soils or foundation investigations, environmental hazardous materials and so forth. California State l’revailmg Wage information is available through the California Department of Industrial Relations websites below:
Consultants will need to provide their Prevailing Wage Policy if their participation on the project includes prevailing wage work. The policy will include information on the accounting
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treatment of delta base and delta fringe, and verify the accounting treatment is consistent everyyear. • DIR FAQ website:
http:/ /www .dir.ca.gov/OPRL/ FAQ PrevailingWage.html
• DIR Wage Determination website:
http:/ / www.dir.ca.gov/oprl/DPrcWggetrndnation.htrn
• Caltrans Prevailing Wage Interpretive Guidance:
http:/ /www.dot.ca.gov/hg/audits/ documents/prevailing-wage-interpretive guidance.pdf
Non-A&E Consultants
Consultants other than A&E consultants may be selected using cost, cost and qualifications (best value) or other critical selection criteria. The procedures outlined in this chapter can be modified for selecting non-A&E consultants by adding a cost item to the contract proposal.For more details on non-A&E consultants, see Section 10.3 NowA&E Contracts of this chapter.Selecting the Project The local agency is responsible for selecting and initiating a federal-aid financed transportationproject. The decision to begin project development is influenced by the project needs, its acceptability, the timing of studies, financing, and construction. The local agency must identifythe project’s objectives including the general level of improvement or service, operatingstandards, maximum cost and the target date for project completion before commencing any consultant selection process.
Subcontracted Services
The consultant is responsible for performing the work required under the contract in a manner acceptable to the local agency. The consultant’s organization and all associated consultants aridsubconsultants must be identified in the proposal. If the consultant wishes to use asubconsultant not specified in the proposal, prior written approval must be obtained from thelocal agency. The subcontract must contain all required provisions of the prime contract. Allsubawards must include adequate oversight, management, and administration of engineeringand design related consultant services and be administered in accordance with State laws andprocedures specified in 23 U.S.C. l06(g)(4) 2 CFR 200.331.Organizational and Consultant Conflicts of Interest In the procurement of contracts for engineering services by private consulting firms usingfederal-aid highway funds, local agencies must take all the steps necessary to prevent fraud,waste, and abuse. The local agency must develop and maintain a written code of conductgoverning the performance of its employees (including the contract administrator) engaged in the award and administration of federal-aid highway funded contracts, including the prevention of conflicts of interest in accordance with 23 CFR 172.7(b)(4)
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A conflict of interest occurs when a public official’s private interests and his or her public dutiesand responsibilities diverge or are not consistent. Conflicts of interest may be direct or indirect (e.g., as result of a personal or business relationship). The appearance of a conflict of interest should be avoided as an apparent conflict may undermine public trust if not sufficiently mitigated.
Federal Regulation Governing Conflict of Interest (23 CFR 1 72.7(b)(4)) Requires that:
• Local agency shall maintain a written code of standards of conduct for employees engaged in the award and administration of engineering and designservice contracts; • No contracting agency employee who participates in the procurement, management, or administration of federal funded contracts or subcontractsshall have, directly or indirectly, any financial or other personal interest in cormection with such contract or subcontract;
• No person or entity performing services for a contracting agency in connection with a federal funded project shall have, directly or indirectly, arty financial orother personal interest, other than employment or retention by the contracting agency, in any contract or subcontract in connection with such project; • No person or entity performing services for a contracting agency in connection with a federal-aid highway funded project shall have, directly or indirectly, any financial or other personal interest in any real property acquired for the project; • No contracting agency employees or agents shall neither solicit nor accept gratuities, favors, or anything of monetary value from consultants, potential consultants, or parties to subagreements;
• Local agency shall disclose in writing any potential conflict of interest to FHWA Consultants Performing Work on Multiple Phases of Federal-aid Projects Local agencies sometimes wish to hire the same consultant firm to perform constructionengineering and/or inspection services on the same project on which the firm also performed design services. This can cause project delivery efficiencies, as the design firm is well-suited to verify that the project is being constructed in accordance with the design and can resolve issues related to the design on behalf of the contracting agency. However, this may also pose a potential conflict of interest if the firm has a vested financial interest in failing to disclose deficiencies in its design work product and seeks to insulate itself from pecuniary liability in subsequent phases of the project, such as minimizing or ignoring design errors and omissions,rather than serving the best interests of the contracting agency and the public. Procuring a different firm from the design firm to provide the construction engineering and/or inspection services provides another level of review and reduces the risk of, or potential for, a conflict ofinterest.
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Although federal regulations do not expressly prohibit the same firm from providing serviceson subsequent phases, the local agencies are responsible for ensuring the public interest ismaintained throughout the life of a project and that a conflict of interest, real or apparent, does not occur or is sufficiently mitigated by appropriate public agency controls. Prior to allowing aconsulting firm to provide services on subsequent phases of the same project, the contractingagency must establish appropriate compensating controls in policies, procedures, practices, andother safeguards to ensure a conflict of interest does not occur in the procurement management, and administration of consultant services.When design and construction phase services are procured under a single solicitation, theselection of the consulting firm must be based on the overall qualifications to provide bothdesign and construction phase services, which require different skill sets, experience, and resources. Procuring these services under different solicitations may result in selection of amore qualified firm to perform services in each phase, as the most qualified firm to perform design phase services may not be the most qualified firm to provide construction phase services. Similarly, the qualifications and capacity of a firm may change over time. As such, itmay not be appropriate to contract with a consulting firm to provide construction phaseservices at the outset of a design phase, knowing that these services may not be needed for artextended period until the preconstruction phase of the project is complete and constructionfunding authorized. The contract with a consulting firm providing design phase services on aproject may not be amended to include construction phase services unless the desired construction phase services were included within the original advertised scope of services andevaluation criteria of the solicitation from which a qualifications based selection was conducted.All consultants acting in a management support role must complete Exhibit 20-LI: Consultant inManaRenient Support Role Conflict ofInterest and Confidentialih Statement (see Section 10,1.9:Miscellaneous Considerations in this chapter) and retain it in the local agency files.Miscellaneous Considerations Authorization to Proceed The Federal Highway Administration (FHWA) must give the local agency an Authorization to Proceed (E-76) with the work prior to performing of any work for which federal reimbursement is to be requested, (see the 44j]yj,,ç,l!a ,ter 3: ProJect Authorization). For state funded projects seeSection 10.2: State-Only Funded A&E Contracts and the Local Assistance Program Guidelines (LAPC), Qiapter 23: Local Agency State Transportation Imyrovement Proczrani Projects, for guidance on when work may proceed.Copies of the Authorization to Proceed and the consultant contract must be retained in the local agency project files for future audit.
10.1.2 IDENTIFYING & DEFINING A NEED FOR CONSULTANTS
The need for a consultant is identified by comparing the project’s schedule and objectives with the local agency’s capabilities, its staff availability of the required expertise, and its funding resources. If the local agency does not have sufficient staff capabilities, it may solicit assistancefrom another agency, or use a qualified private consultant to perform the required work.
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If the local agency determines that there is a need to solicit assistance from another local agency, or to use a consultant the District Local Assistance Engineer (DLAE) should be notified iffederal-aid funds are to be requested for the project segment to be contracted out.Appointing the Contract Administrator The Contract Administrator is responsible for ensuring the quality of consultant contractproducts or services. The Contract Administrator is appointed as soon as the need forconsultant services is identified. The Contract Administrator is involved throughout thedevelopment of the selection process and the contract provisions, and in the administration ofthe consultant’s work. The Contract Administrator must be a qualified local agency employeeor have staff that is qualified to ensure the consultant’s work is complete, accurate, and consistent with the terms and conditions of the consultant contract. On federal-aid contracts, the Contract Administrator or staff members must be a full-time employee and familiar with the work to be contracted out and the standards to be used. The Contract Administrator must also abide by the laws, regulations and policies required as part of accepting federal or state funding for their project. Non-compliance with the laws, regulations, and policies may result in loss ofproject funding.The Contract Administrator’s duties are listed in 23 CFR 172.9(d) (1) and include:
• Contract negotiation, contract payment, and evaluation of compliance performance, and quality of services provided by the consultant; • Being familiar with the contract requirements, scope of services to be performed, and products to be produced by the consultant; • Being familiar with the qualifications and responsibilities of the consultant’s staff and evaluating any requested changes in key personnel; • Scheduling and attending progress and project review meetings, commensurate with the magnitude, complexity, arid type of work, to ensure the work isprogressing in accordance with established scope of work and schedulemilestones; • Documenting contract monitoring activities and maintaining supporting contract records as specified in 2 CFR 200 .333;
• Provides direction to ensure the proposed work is advertised properly;• Prepares and distributes the Request for Qualifications (RFQ), description of work, and Request for Proposals (RET), if used;
• Prepares the draft contract;• Arranges for preparation before an independent estimate of the value of the work to be contracted out;
• Ensures that the selection procedures are followed;• Analyzes the selected/best-qualified consultant’s cost proposal;• Ensures contract audit and review procedure is followed; Pag 5 of 72
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• Ensures that fee/profit negotiation is conducted and keeps records; • Serves as the local agency’s primary contact person for the successful consultant;
• Monitors the consultant’s progress and provides direction;• Ensuring consultant costs billed are allowable in accordance with the Federal cost principles and consistent with the contract terms as well as the acceptability and progress of the consultant’s work;
• Identifies other local agency staff for the consultant to contact, if needed; • Closes out the contract at completion, by processing the final invoice; completing a mandatory consultant evaluation, and final DBE utilizationreports (Exhibit 27-F: him! Report Utilization olDisadvmmtaged Business Enterprises (DBE) mid First-Tier Subcontractors).
Segmenting Consultant WorkConsultant services are most effective when consultant work is segmented appropriately. Theextent of segmenting depends upon the type and complexity of the work. Combiningpreliminary engineering tasks with the preparation of the required environmental analysis is normally desirable. Preparing an Environmental Assessment (BA) or Environmental ImpactStatement (ElS) is more than simply writing a report. Assessment and impact reports includepreliminary engineering needed to analyze project alternatives and produce an engineering andplanning assessment. Initial project studies include only as much traffic and engineeringanalysis of alternatives, as is needed to produce a sound EA or BIS (see FARM Clwpter 6 Enuironmnen to! Procedures and Standard Environmen[al Reference (SER) Chapters 31:
Environmental Assessment (BA) and Finding of No Significant Impact (FONSI) and Chapter 32.Environmnental Impact Statement (P15). Final design shall not begin until NEPA environmentalapproval has been received if federal reimbursement is desired.
Refer to Figure 10-2: Segmenting Consultant Work below, which illustrates several satisfactory ways to segment consultant activities.
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Consu’tant Seection
Difficult Coinp1e
Projects Projects
Prelitninat’- Engineering
Environmental .&nalvsis
Plans. .Specifiealious
&Estiinares
Right of Way Activities
Utility Relocation
Construction Engineering
Figure 10-2: Segmenting Consultant Work
Specify Products to be Delivered
The Contract Administrator identifies the products and services to be delivered as a result of consultant contraci work, and minimum qualification of consultant professionals and staff.
These vary depending upon the type of projects and the phase of project development being addressed.
Scope of Consultant Work
The scope of work, which the contract must include, is a detailed description of the products or services the consultant is to provide. From a detailed scope of work, consultants respond to a project advertisement; determine personnel and time requirements; and develop a technicalproposal. Therefore, the scope of work must be clear, concise, complete, and describe the deliverables, standards for design and other work, quality control measures, acceptance criteriaand deadlines.
Non-Discrimination Clause
The Non—Discrimination Clause (FxIiil’it iO-R: A&E Roiletvlate Aree,,tent Langjge Article XVI Statement of Compliance) must be included in each consultant contract. The consultant mustinclude the non-discrimination and compliance provisions of the Non-Discrimination Clause inall subcontracts to perform work under the contract.
Disadvantaged Business Enterprise (DRE) Participation
When administering federal-aid projects, federal regulations (49 CFR, Part 26) require a local agency to comply with the DBE program, and take necessary steps to ensure that DBE firms have the opportunity to participate in the projects. Refer to Chapter 9: Civil Rights and Disadvantaged Business Enterprises for DBE requirements for A&E Consultant Contracts.
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Vel I—sir 1W I Lire (I
Projects
With Simple
Right of Way
Requirements
W eli—s ti-i icr ii icil
Projects
With Complex
Right of Va
Requiremen is
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Consultant Selection
Estimated Cost of Consultant Work
An independent estimate for cost or price analysis is needed for all consultant contracts (23 CER172.7(a)(1)(v)(B)) to ensure that consultant services are obtained at a fair and reasonable price. tie estimate is prepared in advance of requesting a cost proposal from the top-rankedconsultant, so the local agency’s negotiating team has a cost comparison of the project to evaluate the reasonableness of the consultant’s cost proposal. The estimate, which is specifically for the use of the local agency’s negotiating team, is to be kept confidential and maintained for records.
A good cost estimate can be prepared only if the scope of work is defined clearly. The scope ofwork must include a list of the products or services which the consultant is required to deliver, and a time schedule of when they must be delivered.
It should be stressed that all work to be decived from the consultant services, such as preliminary design, environmental or final design, must be clearly identified in the solicitationof consultant services (RFQ or REP) arid included in the cost estimate. The addition of work to the original scope by amendment should be avoided whenever possible. Contract modificationsare required for any amendments to the terms of the existing contract that change the cost of the contract; significantly change the character, scope, complexity, or duration of the work; orsignificantly change the conditions under which the work is required to be performed.
Some of the costs estimating techniques are:
Analogous Estimating:
Analogous cost estimating is using the actual cost of a previous, similar contract as the basis forestimating the cost of the current contract. Analogous cost estimating is frequently used toestimate costs when there is a limited amount of detailed information about the project.
Analogous cost estimating is generally less accurate and it is most reliable when previousprojects are similar in fact, and not just in appearance, and it uses expert judgment.
Parametric Estimating:
Parametric estimating is a technique that uses statistical relationship between historical data and other variables to calculate a cost estimate for an activity resource. This technique can produce a higher level of accuracy depending upon the sophistication, as well as underlyingresource quantity and the cost data. A cost example would involve multiplying the planned quantity of work by the historical cost per unit to obtain the estimated cost of the contract.
Bottom-up Estimating:
This technique involves estimating the cost for individual work in the contract with the lowest level of detail. This detailed cost is then summarized or rolled up to determine a total cost of contract. Cost detail should include estimated hours per task, labor hourly cost for professional and non-professional classifications, subconsultant costs, other project direct costs, and profit.Labor costs should be broken down to direct labor and indirect cost rates, if possible.
If more than one project or phase of work is to be developed within the consultant contract,separate cost estimates are required for each project or phase of work. Separate cost estimates are required for each milestone and portion of the work expected to be subcontracted.
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For on-call (as-needed) contracts, the cost estimate/analysis should include at minimum, ahistorical analysis of annual needs for consultant work, professional labor cost and market analysis, and reasonable profit analysis.
Determine Type of Contract
Types of contracts to be used are described as follows:
• Project-specific contract is between the local agency and consultant for the performance of services and a defined scope of work related to a specific project or projects. • Multi-phase contract is a project-specific contract where the defined scope of work is divided into phases which may be negotiated and executed individually as the projectprogresses. • On-call contract is a contract that may be utilized for a number of projects, under which task or work orders are issued on an as-needed basis, for an established contract period.
On-call contracts are typically used when a specialized service of indefinite delivery orindefinite quantity is needed for a number of different projects, such as construction engineering, design, environmental analysis, traffic studies, geotechnical studies, and field surveying, etc. Many agencies use these contracts to address peaks in workload ofin- house engineering staff and/or to perform a specialized service which the agencydoes not have. On-call contracts shall specify a reasonable maximum length of contract, not to exceed 5 years, and a maximum total contract dollar amount (23 CFR 172). The maximum dollar amount for all contracts awarded under the solicitation is stated in thesolicitation. The maximum dollar amount is the aggregate of the on-call contractsanticipated to be awarded. If the solicitation lists that up to 5 contracts may be awarded,the aggregate amount of these 5 contracts is the maximum contract dollar amount. How many contracts are anticipated to be awarded must be stated in the solicitation. How task orders will be issued must be stated in the solicitation (two options exist:geographically designated areas or additional competitive solicitation to all consultants who provide the same type of service and awarded a contract under the samesolicitation). o To maintain the intent of the Brooks Act (40 Usc 1101-1104) in promoting open competition and selection based on demonstrated competence and qualifications, oncall consultant contracts established through the RFQ process must meet thefollowing requirements:
• Must define a general scope of work, complexity, and professional nature of services.
- Specify a task order procedure the local agency uses to procure project specific work under the contract.
• No task order is valid unless the on-call contract is still enforced. For example, if the on-call contract is expired, all task orders issued after thecontract expiration date will become invalid.
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If multiple consultants are to be selected and multiple on-call contracts awarded through a single solicitation for specific services, the number ofconsultants that may be selected or contracts that may be awarded must beidentified.
Specify procurement procedures in the contracts the local agency will use to award/execute task orders among the consultants:
• Either through an additional qualification-based selection process (see the Two-Step RFQ/RFQ process later in this chapter), OR
• On regional basis whereby the region is divided frito areas identified in the solicitation, and consultants arc selected to provide on-call services forassigned areas only. The RIP may list multiple regions that allow consultants to crossover or be a “backup” to other consultants that for specificallydocumented reasons are not able to perform the work in their assigned region. Per 23 CFR 172.9 (a)(3)(B)(2). The “backup” option needs to be listedin the respective contracts. • An example ofacceptable contract wording in multiple on-call contractsfor the same type of service:
• “Agency has or will enter into three (3) task order contractsfor performance of the Scope of Services identified in Exhibit “A”, including this Agreement (“CM Services Task Order Contracts”). Pie other CM Services Task O,der Contracts are fidentiJij other two contracts by agreement numbers and consultantfirms]. The total amount payable by Agency for the CM Services ‘J’ask Order Contracts shall not exceed a cumulative maximum total value of Seven Million, Five Hundred Thousand Dollars ($7,500,000) (“NTE Sum”). it isunderstood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under the CM Services Task Order Contracts through Task Orders. Each time a Task Order is awarded under any of the CM Services Task Order Contracts, the Agency shall send written notification to Consultant and each of the other consultants entering into the CM Services Task Order Contracts. Pie notice shall identify the totalfinds allocated under issued Task Orders, and the remaining unencumbered amount of the NTE Sum. Consultant acknowledges and agrees that Agency shall not pay anyamount under this Agreement that would exceed the NTE Sum, and Consultant shall not enter into a Task Order that exceeds the NTE Sum.”
Determining the Project Schedule
The local agency develops a schedule for performance of work and completion of the project.The schedule must include sufficient time to allow for:
• Selecting the consultant;
• Developing the consultant contract;
• Completing the A&E consultant contract audit process;• Conducting meetings and project reviews.
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Determine Method of Payment
The method of payment of contract must be specified. Four methods are permitted depending on the scope of services to be performed reference 23 CFR 172.9(b):
• Actual Cost-Plus-Fixed Fee (see Lxiiihit 10-H: Sentpie Cost Proposal, Example #1);
• Cost Per Unit of Work (see Exhibit 70-H, Example #3);• Specific Rates of Compensation (see Exitibit 10-H, Example #2);• Lump Sum (see Exhibit 10-H, Example #1).
The method of payment to the consultant shall be set forth in the original solicitation, contract, and in any contract modification thereto. A single contract may contain different payment methods as appropriate for compensation of different elements of work.The cost plus a percentage of cost and percentage of construction cost methods of payment shallnot be used Both of these methods are explicitly prohibited by Federal Regulations.Actual Cost-Plus-Fixed Fee The consultant is reimbursed for actual costs incurred and receives an additional predetermined amount as a fixed fee (profit). Federal regulations require that profit be separately negotiatedfrom contract costs. The determination of the amount of the fixed fee shall take into account thesize, complexity, duration, and degree of risk involved in the work. The fixed fee is notadjustable during the life of the contract. The fixed fee dollar amount must be clearly stated inthe contract.
This method of payment is appropriate when the extent, scope, complexity, character, or duration of work cannot be precisely predicted. The fixed fee limit applies to the total direct and indirect costs. Fixed fees in excess of 15 percent of the total direct labor and indirect costs of thecontract may be justified only when exceptional circumstances exist. The contract shall specify areasonable maximum length of contract period and a maximum total contract dollar amount (see Exhibit 10-H; Sample Cost Proposal Example #1 and Exhibit 10-R: A&E Sample ContractLanguage, Article V, Option i in this chapter). The contract cost proposal must identify all key employees and/or classifications to be billed. New key employees and/or classifications mustbe approved before they incur work on the contract or the costs can be questioned ordisallowed.
Cost Per Unit of Work
The consultant is paid based on specific item of work performed. The item of work must be similar, repetitious and measurable, such as geotechnical investigation and material testing.
This method of payment is appropriate when the cost per unit of work can be determined withreasonable accuracy in advance, but the extent or quantity of the work is indefinite. Contract payment provisions must specify what is included in the price to be paid for each item. Anyitem of work not identified in the contract cost proposal is not eligible for reimbursement. New items of work (those within the original scope of work only) must be amended into the contractbefore work is performed. The contract shall also specify a reasonable maximum length of
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contract period and a maximum total contract dollar amount (see Exhibit lU-H, Example #3 and Exhibit JO-N, Article V Option 2).
Specified Rates of CompensationThe consultant is paid at an agreed and supported specific fixed hourly, daily, weekly ormonthly rate, for each class of employee engaged directly in the work. Such rates of pay includethe consultant’s estimated costs and net fee (profit). Federal regulations require that profit be separately negotiated from contract costs. The specific rates of compensation, except for an individual acting as a sole proprietor, axe to include an hourly breakdown, direct salary costs,fringe benefits, indirect costs, and net fee. Other direct costs may be included, such as travel and equipment rentals, if not already captured in the indirect cost rate.
This method of payment should only be used when it is not possible at the time of procurement to estimate the extent or the duration of the work, or to estimate costs with any reasonable degree of accuracy. This method should not be used for project specific contracts and isrecommended for on-call contracts for specialized or support type services, such as constructionengineering and inspection, where the consultant is not in direct control of the number of hours worked, and it also requires management and monitoring of the consultant’s level of effort andthe classification of employees used to perform the contracted work. The contract shall also specify a reasonable maximum length of contract period and a maximum total contract dollaramount (see Er]ihit 10-H, Example #2 and Exhibit JO-N, Article V Option 3).
Lump Sum or Firm Fixed Price
The consultant performs the services stated in the contract for an agreed amount as compensation, including a net fee or profit. This method of payment is appropriate only if the extent, scope, complexity, character, duration, and risk of the work have been sufficientydefined to permit fair compensation to be determined and evaluated by all parties during negotiations (see Eritibit JO-H: Sainpic Cost Proposal, ExaPUjie #1 and Exhibit JO-N: A&E Satanic Contract Lm:gnac, Article V. Option 4). Normally, a lump sum contract will be paid in full at end of the contract when completed. However, a lump sum contract can be negotiated withprogress payment if feasible. The progress payment shall be based on percent of work completeor completion of clearly defined milestones. The contract cost proposal shall document theagreed upon progress payment and include the necessary milestones costs, or the percent workcomplele schedule.
Changes to Exhibit 10-H requiring resubmittal to Independent Office of Audits andInvestigations for review:
• Consultant name change• New participating subconsultant• Change in ICR rate
10.1.3 A&E CONSULTANTAUDITAND REVIEWPROCESS
This section outlines the audit and review process for A&E contracts that at any time use state or federal funds. Ml proposed A&E contracts and supporting documents are
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subject to audit or review by Caltrans’ Independent Office of Independent Office ofAudits and Investigations (IOAI), other state audit organizations, or the federal government. Not all proposed contracts will be audited or reviewed; rather, they will be selected on a risk-based approach.
Applicable Standards
State and federal requirements listed below, and specific contract requirements, serve as the standards for audits and reviews performed.Local agencies, consultants, and subconsultants are responsible for complying with state,federal, and specific contract requirements. Local agencies are responsible for determining the eligibility of costs to be reimbursed to consultants.
Applicable standards include, but are not limited to:
• Caltrans Local Assistance Procedures Manual (LAPM);
• State and Federal agreements between local agencies and Caltrans, (i.e. Master Agreements);
• Project Program SupplementalAgreements;
• 23 United States Code (U.S.C.), Section 112 -Letting of Contracts;• 40 U.S.C., Chapter 11: the Brooks Act; • 23 CFR, Chapter 1, Part 172- Procurement Management and Administration of Engineering and Design RelatedServices;
• 23 CFR, Chapter 1- Federal Highway Administration, Department of Transportation;
• 48 CFR, Federal Acquisition Regulation (FAR), Chapter 1, Part 31- Contract Cost Principles and Procedures;
• 48 CFR, Chapter 99 -Cost Accounting Standards (CAS), Subpart 9900;• 2 CFR, Part 200 -Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards;
• United States Government Accouitability Office, Government Auditing Standards
-Generally Accepted Government Auditing Standards (GAGAS); • California Government Code sections 4525-4529; and
• Proposed contract terms andconditions.
See section 10.10 “Re[e,e,iccs” of this Chapter for links to above referenced standards.
Audit Guidance Available
The American Association of State Highway and Transportation Officials, Uniform Audit & Accounting Guide (AASHTO Audit Guide), which is referred to frequently in this section, is a valuable tool to guide local agencies, consultants and Certified Public Accountants (CPA)through the requirements for establishing, and audits of FAR compliant Indirect Cost Rates
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(ICR). The AASHTO Audit Guide is used extensively as an industry guide in the audit and review process.Local agencies may seek accounting assistance from internal audit staff and an independentCPA for compliance. The consultant may seek professional guidance in selecting its independent CPA. See also the AASHIO Audit Guide, Ch 2.5 C. Selection of CPA Firm as Overhead Auditor for guidance in the selection process. Training is also offered by FHWA’s National Highway Institute (see http:/ / www.nhi.fhwa,dot.gov/default.aspx). Courses offered include:
• Using the AASI ITO Audit Guide for the Procurement and Administration of A&E Contracts (FHWA-NHI-231028)
• Using the AASHTO Audit Guide for the Development of A&E Consultant Indirect Cost Rates (Fl-TWA- Ni [1-231029)
• Using the AASHTO Audit Guide for the Auditing and Oversight of A&E Consultant Indirect Cost Rates (FHWA-N1-1I-231030)
If consultants desire training on how to build an ICR and basic timekeeping, there areIndirect Cost Rate and Timekeeping webinars created by the Washington State Departmentof Transportation. The link to the webinars is available at http://www.dot.ca.gov/audits/ (click on Architectural & Engineering Contracts/General A&E Contract Resources/Other State DOT Training Module). For training and additional information provided by CaltransLocal Assistance, visit Caltrans Local Assistance Blog at http:/jwwwlocalassistancehlog.corn/. For FHWA’s Q&A for ICRs and audits, and A&E related services, visit FHWA at http:/ /www.fhwa.dot.gov/programadrnin/172ga.cfnAllowable Costs23 USC 112 (b)(2)(B) states that any A&E contract or subcontractawarded, whether funded in whole or in part with Federal-aid highway funds in furtherance of highway constructionprojects, shall be performed and audited in compliance with the Federal cost principles.Local agencies are required to perform a cost analysis to ensure all costs are allowable andin compliance with federal and state requirements and retain documentation of negotiationactivities and resources. Hourly rate(s) for each key personnel and/or classification ofemployee(s) proposed in cost proposals must be reasonable for the work performed and actual, allowable, and allocable in accordance with the Federal cost principles. Costs shall beallowable only if the cost is incurred and cost estimates included in negotiated prices areallowable in accordance with the federal and state regulations and procedures, and contractprovisions. Examples of Cost Analysis Worksheets are provided at Exhibit 10-Hi through 4.
Local agencies are required to apply Caltrans accepted consultant or subconsultant’s ICRs, to contracts. An ICR is valid for the one-year applicable accounting period accepted or auditedby Caltrans. Consultants shall update, on an annual basis, ICRs in accordance with theconsultant’s annual accounting period and in compliance with the Federal cost principles.For further guidance, refer to 23 CFR Part 172.11(b)(i). If the consultant is subject to CostAccounting Standards (CAS), the consultant must use the applicable ICR for the contract.
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A consultant’s accepted ICR for its one-year applicable accounting period shall be applied to contracts; however, once an ICR is established for a contract it may be extended beyond the one-year applicable period, through the duration of the specific contract, provided all concerned parties agree. Agreement to the extension of the one-yeas applicable period shall not be a condition or qualification to be considered for the work or contract award. The contract must clearly specify the ICR period if it is beyond the one-yeas applicable period.Consultants shall account for costs appropriately and maintain records, including supportingdocumentation, adequate to demonstrate that costs claimed have been incurred, and are allowable, reasonable, and allocable to the contract, and comply with Federal cost principles.lOAd and representatives of the Federal Government have the right to conduct an audit of allcontract costs. If the costs are subsequently determined to be unallowable, these costs are subject to repayment. For further guidance, refer to 23 CFR Part 172 and 48 CFR Part 31.
Generally, whenever local agencies, consultants and/or contractors are unable to provide requested documentation, it shall be viewed that the sen’ices were either not performed or the costs not properly recorded. Retention of all documents is required as it reduces the possibility of audit findings and disallowed costs. For more references, refer to Applicable Standards in this chapter.Approval or Acceptance of Indirect Cost Rates Cognizant Letters of Approval
A cognizant approved ICR has been audited by a Cognizant agency (a State transportationagency of the State where the consultants accounting and financial records are located or a Statetransportation agency to which cognizance for the particular indirect cost rate(s) of a consultingfirm has been delegated or transferred to in writing by the State transportation agency wherethe consultant’s accounting and financial records are located) in accordance with generallyaccepted govermnent auditing standards to test compliance with the requirements of theFederal cost principles (per 48 CFR part 31) and the cognizant agency has either 1) issued an audit report of the consultants indirect cost rate or 2) conducted a review of an audit report andrelated workpapers prepared by a certified public accountant and issued a letter of concurrencewith the audited indirect cost rate(s). The cognizant agency approves the ICR arid a cognizantapproval letter is issued.
Coltrans Acceptance of Indirect Cost Rate
When the ICRs have not been established by a cognizant agency, Caltrans shall perform an audit or review of a consultant’s and subconsultant’s ICR(s) to provide reasonable assurance ofcompliance with Federal cost principles.
An audit or review of the ICR may consist of one or more of the following:
• Perform areview to determine if the ICR was prepared in accordance with 23 CFR 172, and 48 CFR, Chapter 1,Fart 31;
• Perform an audit to determine if the ICR was prepared in accordance with 23 CFR 172, and 48 CFR, Chapter 1, Part 31; and issue an audit report; • Review and accept an ICR audit report and related workpapers prepared by a CPA or another State Transportation Agency;
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The outcome of an audit or review is for Caltrans to approve or accept the ICR so that it can be relied upon for future contracts with the consultant for a given one-year accounting period and for reliance by other contracting agencies using the same consultant. Local agencies shall ensurethat only approved or accepted JCRs of consultants for the applicable one-year accountingperiod be applied to contracts, if rates are not under dispute. Local agencies may check JOAT’s website for consultant’s approved or accepted ICRs, All approved or accepted ICRs are issued anAcceptance Identification (ID) number by IOAI that is posted to lOAFs website at http:/ /www.dot.ca.gov /ho/audits/. This ID number should be referenced on all future contracts that use the same fiscal year ICR. ICR can be fixed for the life of the contract in prior written document or annually updated. Once it has been updated, it must be annually updated and the most current fiscal year of ICR must be used.
ICRs that have not been accepted by Caltrans will not be eligible for indirect cost payment An ICR approved by a cognizant agency may be used across states for the one-year applicable accounting period, but an ICR accepted by Caltrans may only be applied to A&E contracts with Caltrans or local agency contracts using pass-through Caltrans funding. Local agencies includeCities, Counties, Metropolitan Planning Organization, Special Districts, and Regional Transportation Planning Agencies.
Financial Review Performed Prior to Contract Execution
All consultants, including prime and subconsultants, on a proposed contract with a dollarvalue greater than $150K are subject to an ICR financial review by IOAI. The financial documents required are detailed in Exhibit 10-A, A&E Consultant Financial Document Review Request Letter and Exhibit 10-A Checklist. IOAI will review the ICR financial documents to either accept or adjust the indirect cost rate prior to contract execution using a risk-basedapproach as dictated by factors that include but are not limited to:
• History of satisfactory performance and professional reputation of consultant; • Prior FAR compliant history and audit frequency;
• Experience of consultant with FAHP contracts;• General responsiveness andresponsibility; • The approximate contract volume and dollar amount of all A&E contracts awarded to the consultant by Caltrans or a local agency in California within the last three calendar years;
• The number of states in which the consultant does business;• The type and complexity of the consultant’s accounting system; • The relevant professional experience of any CPA performing audits of the consultants indirect costrate;
• Assessment of consultant’s internal control. Responses to internal control questionnaire, see AASHTO Audit Guide, Appendix B;
• For ICRs that have been adjusted by IOAI, the consultant must provide a revised cost proposal that reflects the adjusted ICR.
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Local Agencies’ Responsibilities
Local Agencies are responsible for obtaining all required ICR supporting documentation fromA&E prime consultants and sub-consultants as outlined in Exhibit 10-A (A&E ConsultantFinancial Document Review Request) and the Exhibit 10-A-Checklist. Local Agencies are responsible for forwarding these documents to JOAI for review. Local agencies are also required to ensure that IOAI has copies of the Exhibit 10-K “Consultant Certification ofContract Costs and Financial Management System” and Exhibit 10-H “Cost Proposal” for all consultants, both prime and sub-consultants. The ICR included in Exhibit 10-H must match the ICR includedin the Exhibit 10-K and the consultant’s ICR schedule. The proposed ICR, however, can be lower than ICR in Exhibit 10-K and the consultant’s ICR schedule if the consultant elects topropose a lower ICR. For contracts spanning more than one year, local agencies are responsible for ensuring the Exhibit 10-K and cost proposals are updated annually unless all concernedparties agree to fix the ICR for the term of contract, and this is clearly specified in the contract.
ICR updates are not require to IOAI if the ICR is fixed for the life of the contract. ICR’s are only reviewed for consultants that are being awarded a contract, not consultants on a bench orshortlist.
The Exhibit 10-H “Cost Proposal” includes contract costs: direct salary or wage rates, fixed fees, other direct costs, indirect costs, total costs, and certification for the costs. Local agencies must perform and retain documentation of activities and resources used to support that a cost analysis has been performed to establish that costs and elements were determined to be fair and reasonable in accordance with Federal cost principles.All contract supporting documentation must be retained by the local agency in project files forthe required retention period. Unsupported costs may be disallowed and required to bereturned to Caltrans. Having proper documentation policy and procedures, trained staff andorganized project files are essential for demonstrating that costs claimed and reimbursed havebeen incurred, are eligible, reasonable, allowable, and allocable to the contract and comply with Federal cost principles.Contracts below $150,000 are not subject to the Caltrans Financial Document Review but localagencies are required to establish that all costs are in compliance with the Federal costprinciples, 48 CFR, Chapter 1, Part 31, and other applicable requirements are met. Alldocuments listed above and cost analysis documents are required to be retained in the projectfiles to demonstrate compliance.
Instructions are provided in the Exhibit 10-A on the requirementsfor submitting a completeFinancial Review packet. Financial packets can be e-mailed to:[email protected], if you do not have Internet access, you can mail Financial Review packets to:
Department of Transportation
Independent Office ofIndependent Office of Audits andInvestigations, MS 2 Attention:External Audit Manager
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P.O. Box 942874 Sacramento, CA 94274-0001
Consultants’ Responsibilities (Both prime consultants and subconsultants) A&E prime consultants and subconsultants in contract with local agencies using state or federal-aid highway funds should refer to Exhibit 10-A and the 10-A Checklist for the ICR financial documents required to be submitted to their local agency. Consultants must completethe “Annual Certification of Indirect Costs and Financial Management System” (Exhibit 10-K) that attests that the ICR rate proposed is in compliance with FAR (48 CFR, Chapter 1, Part 31) and that the consultant’s financial management system is adequate to accumulate and segregate, reasonable, allowable, and allocable direct and indirect project costs. For all future contracts within a same fiscal year, the consultant needs to only provide a copy of the Exhibit10-K to the Local Agency. The Exhibit 10-A and 10-K should be submitted to the local agency who will forward a copy to IOAI along with all other related and required financialdocuments. For guidance see Training Module for Financial Document Requirements for A&E Contracts with Local Agencies on IOAI’s website http://dot.ca.gov/audits/(click on Architectural & Engineering Contracts/A&E Contracts with Local Agencies/TrainingModules).
Consultants must follow all the federal, state, and contract requirements outlined above in the Section above, “Applicable Standards”. Each contracting consultant must ensure its ICR is notcombined with any parent company’s or subsidiary’sICR.
ICR schedules for both prime consultants and sub-consultants should be prepared using theaccrual basis of accounting and be presented in compliance with the Federal cost principles.
Figure 10-3 at the end of this chapter provides an example of a Standard Indirect Cost Rate Schedule that consultants can use when preparing their own.
For public works Prevailing Wage contracts, all workers must be paid the prevailing wagerate determined by the Director of the Department of Industrial Relations according to thetype of work and location of the project. j.llp/ /wwwdir.ca.gov/Public Works! Prevailing-Wage. html. Prime and sub-consultants must include prevailing wage rate information in the cost proposal (see Exhibit lO-H4 for example) and provide a Prevailing Wage Rate Policy on company letterhead, signed and dated. The policy must document theaccounting treatment for prevailing wage deltas and including the following information:
• Description of types of work that require payment of prevailing wage rates.• Explanation of how the firm pays prevailing wage deltas (e.g. pay directly to employee as single amount to cover delta base and delta fringe, pay delta base toemployee and pay delta fringe amount to a third-party plan, etc.) • Accounting method used for prevailing wage delta base costs.• Accounting method used for prevailing wage delta fringe costs.
For guidance see Caltrans’ Prevailing Wage Interpretive Guidance and webinar on IOAI’s website www.doLca.gov/audits
When determined necessary, IOAI may request additional information, such as a labor distribution summary and Executive Compensation Analysis (ECA). A consultant’s labor distribution summary report is a labor expense report that detail all hours worked (paid and unpaid) for a fiscal year, wages earned, and benefits accrued by all the consultant’s employees.
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The labor summary report should include employee names, salaries, hourly rates, total hours worked segregated by direct hours, indirect hours, paid time off hours, and uncompensated hours and amounts.An ECA is an evaluation by the consultant to determine the allowability and reasonablenessof executive compensation in compliance with Federal cost principles and the AASHTO Audit Guide that can be based on either the National Compensation Matrix or independentcompensation surveys.
Independent Office of Audits and Investigations’ Responsibilities After bAT receives a consultant’s complete financial document packet (per Exhibit 10-A and Exhibit 10-A Checklist) from the local agency, 10AM will review the proposed JCR andsupporting documents and notify local agencies in writing whether the proposed ICRs arcaccepted or adjusted.Contracts will be executed after IOAT either accepts or adjusts the ICR and a revised final cost proposal (if applicable) is received. Correction of the final cost proposal, however, does NOTneed to be cleared through Caltrans IOAI before executing the contract. An email notificationfrom IOAI serves as documentation to support an accepted ICR.Audits and Reviews to be PerformedAfter contract execution, a consultant’s ICR may be subject to further detailed review or auditby IOAI based on certain risk factors. Costs that are determined to be unallowable as a result ofthe review or audit will be subject to repayment.
Indirect Cost Rate Audits
During an ICR audit, TOAd or an independent CPA will examine the consultant’s proposed ICRfor a one-year accounting period to ensure that unallowable costs have been removed from the indirect costs, that allowable costs have been correctly measured and properly charged andallocated, and that the ICR has been developed in accordance with the Federal cost principles (as specified in 23 U.S.C. Section 112(b)(2)(B), 23 CFR Part 172.11,48 CFR Part 31 and other FAR and State requirements). As a result of the audit, the local agency will work with theconsultant to adjust the ICR based on audit recommendations.For guidance regarding the existing policies and procedures set forth in the federal regulations, and acceptable ICR schedules, refer to the AASHTO Audit Guide, Chapter 5, and Figure 10-3 Standard Indirect Cost Rate Schedule in this Chapter. There is also a review program atAppendix A which serves as a guide for CPAs and TOM when perfonning ICR audits and can also be used as a resource for consultants when preparing for an ICR audit.CPA Workpaper Reviews During a workpaper review of a CPA audit of an ICR, TOM will review the CPA’s auditworkpapers to determine whether to issue a Cognizant Letter of Approval for the ICR. The CPA Workpaper Review determines whether: (a) the CPA’s audit of the ICR was conducted in accordance with Generally Accepted Government Auditing Standards (GACAS), (b) the CPA
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adequately considered the auditee’s compliance with the Federal cost principles and related federal and state laws and regulations.
Chapter 11 of the AASHTO Audit Guide provides information to the CPA on the required audit disclosures.
IMPORTANT NOTE FOR CFAs: Contracts receiving state or federal funds are highly scrutinized. Materiality levels tend to be lower and more testing is required. GAGAS provides that auditors may find it appropriate to use lower materiality levels as compared with the materiality levels used in nonGAGAS audits because of the public accountability ofgovernment entities and entities receiving government funding, various legal and regulatory requirements, and the visibility and sensitivity of government programs. The AASHTO Audit Guide should be used as a tool for performing audits and attestations of A&E firms.
Contract Audits
During a Contract Audit, auditors will review a consultant’s financial management system and contract cost proposal todetermine if:
• The consultants’ accounting system is adequate to accumulate and segregate costs; • Costs are reasonable, allowable, allocable and supported adequately;• The contract contains all required fiscal provisions; • Proper state and federal procurement requirements were followed.
Incurred Cost Audits
During an Incurred Cost Audit, auditors will review incurred contract costs to determine if:
• Cost data are maintained in an accounting system that adequately gathers, records, classifies, summarizes, and reports accurate and timely financial data for directandindirect project costs by account; • Costs are adequately supported, reasonable, allowable, and allocable; • Costs incurred are in compliance with state and federal laws and regulations;• Costs incurred are in compliance with the Master Agreement and Supplemental Agreement;
• Costs incurred are in compliance with the fiscal provisions stipulated inthe contract; and
• The terms required by the Master Agreement and federal laws and regulationsare in the contract.
Audit Findings and Review Deficiencies
If a consultant’s ICR is audited or reviewed, local agencies are responsible for ensuring allexecuted and future contracts reflect the audited and adjusted fiscal year ICR(s). Local agenciesshould request reimbursement from the consultant for overpayment on rates that wereadjusted down.
The local agencies may be subject to sanctions outlined in LAPM Chapter 20: Deficiencies and Sanctions if the state or federal government determines that any reimbursements to the
January 2010
FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT FOR
CITY OF AVALON AND ENGINEERED SOLUTIONS GROUP
This FIRST Amendment is made effective September 1, 2023 to the Professional Services Agreement by and between the City of Avalon (“City) and Engineered Solutions Group, a S-corporation (“Consultant”) dated the gtb day of January 2020.
The terms and conditions of the Agreement are amended as follows:
3.1.2 Term.
The term of this First Amendment shall be two (2) years commencing December 31, 2023 and ending on January 1,2025.
3.3.1 Compensation.
Total compensation shall not exceed $800,000 of executed task orders per fiscal year, without written approval of the City Council or City Manager as applicable. Extra Work may be authorize, as set forth in Section 3.3.4, and if authorized, will be compensated at the rates and manner set forth in the Agreement.
Except as modified above, all terms and conditions of the Agreement shall remain in effect.
CITY OF AVALON
By:
David M. Maistros
City Manager
ENGINEERED SOLUTIONS GROUPBy:
Michael Thomas, P,E.
Chief Executive Officer
CITY OF AVALON CITY COUNCIL
MEETING DATE: August 15, 2023 AGENDA ITEM:
ORIGINATING DEP: Administration CITY MANAGER: OQo-LPREPARED BY: David Maistros, City Manager SUBJECT: Resolution Amending Memorandum of Understanding Between the City of Avalon and International Association of Firefighters Local 2295
RECOMMENDED ACTION(S): Adopt a resolution amending the Memorandum ofUnderstanding between the City of Avalon and the International Association of FirefightersLocal 2295 for the contract period July 1, 2022 through June 30, 2025.
REPORT SUMMARY: On May 3, 2022, the City Council adopted Resolution 22-25 approving the Memorandum of Understanding (MOU) between the City of Avalon and the International Association of Firefighters Local 2295 (Fire Union) effective July 1, 2022 through June 30, 2025.
Over the last several weeks, representatives from the Fire Union and the City Manager have held several meetings resulting in the mutual proposal of two amendments to the existingMOU agreement.Bilingual Pay The existing MOU had a provision granting an additional $25 per month to qualified bilingualemployees that routinely provide translation services when speaking with the public. The Parties discussed an increase the bilingual pay allowance from $25 per month to $100 per month.
The nature of translation services used by members of the Fire Union is much higher level than in other areas of City service. Qualified union members translate vital healthcare information in emergency situations. In some cases, due to the level of translation, more fluent union members are called during emergency situations to provide translation serviceswhen not on shift. The level of service and resulting quality of care is significant.The proposed addendum authorizes the monthly increase for qualified employees designated by the Fire Chief. The pay will be considered special Assignment Pay and shall be reported as such pursuant to Title 2CRR, Section 571 (a) (2).
Temporary Acting Pay — Fire Captain
Avalon Fire Department has one Captain assigned per shift with a total of three Captains.
Currently, if a Captain takes time off there are only two other options to cover that shift. With limited redundancy, the need exists to expand the pool of employees that are qualified to Additionally, by allowing qualified employees to garner field experience as an Acting Captain, employees will have better understanding of the activities and responsibilities of the higher position, and may be more prepared for a potential promotion should a vacancyexist.
The proposed addendum establishes:
- Eligibility requirements for employees interested in qualifying as an acting Captain. - Disciplinary authority for an Acting Captain.- Compensation schedule for employee serving as a temporary Acting Captain.
Per the existing MOU agreement: ‘Any agreement, alteration, understanding. variation, waiver or modification of any of the terms or provisions contained herein shall not be binding upon the parties hereto unless made and executed in writing by all parties hereto, and approve and implemented by Avalons City Council For the life of this MOU, Union and the City mutually agree that to reopen negotiations with respect to any subject or matter covered in this MOU requires mutual consent by both parties...” The Fire Union and City Manager met and conferred regarding the requested amendments,and agreed upon the proposed addendum.
FISCAL IMPACTS: City Staff anticipate little fiscal impact and potential cost savings in thereduced overtime.
GOAL ALIGNMENT: Employee relations.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: Members of the Fire Union will not be adequately compensated for translation services and there will be no process for assignment of temporary Acting Captains.
FOLLOW UP ACTION: Implement City Council direction.
ADVERTISING, NOTICE AND PUBLIC CONTACT: The item was properly listed on the posted agenda pursuant to the Brown Act.
ATTACHMENTS:
1. Proposed Resolution
2. Resolution 22-25
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AVALON
APPROVING THE ADDENDUM TO THE MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY OF AVALON AND
THE INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295
REGARDING BILINGUAL PAY AND
TEMPORARY ACTING PAY FOR FIRE CAPTAINS
WHEREAS, the International Association of Firefighters Local 2295 (IAFF) is a recognized employees organization representing employees in the classification of FireCaptain, Fire Engineer and Fire Fighter: and WHEREAS, on May 3, 2022, the City Council adopted Resolution 22-25 approving the Memorandum of Understanding (MOU) between the City of Avalon and the International Association of Firefighters Local 2295 (Fire Union) effective July 1, 2022 through June 30, 2025; and
WHEREAS, throughout July, the Fire Union and City Manager met on several occasions to discuss amendments to the MOU “Bilingual Pay” provision and the additionof provision for “Temporary Acting Pay for Fire Captains”: and WHEREAS, the MOU article “Full Understanding, Modification, and Waiver” states: “Any agreement, alteration, understanding, variation, waiver or modification of anyof the terms or provisions contained [within the MOUJ shall not be binding upon the parties hereto unless made and executed in writing by all parties hereto, and approve andimplemented by Avalon’s City Council”; and WHEREAS, the article continues, “For the life of this MOU, Union and the City mutually agree that to reopen negotiations with respect to any subject or matter covered in this MOU requires mutual consent by both parties”; and WHEREAS, the City and Fire Union agreed to meet and confer regarding the proposed amendments, and the City has satisfied its obligations under Government CodeSection 3505 and the City Personnel Rules and Regulations; and WHEREAS, the IAFF and City Manager have reached an agreement and support the articles outlined in the addendum to the MOU.
NOW, THEREFORE, BE IT RESOLVED, that the City Council hereby approves the terms and conditions set forth in the addendums to the MOU between the City of Avalon and IAFF, a copy of which accompanies this City Council item and is incorporated by reference herein; and
BE IT FURTHER RESOLVED, the terms and conditions of the MOU shall be in full force and effect from July 1, 2022 through June 30, 2025, except as specified otherwise in the MOU; and
BE IT FURTHER RESOLVED, that it is not the intent of the City Council in approving this MOU to change, modify or repeal in any way any of the existing rules of the City of Avalon; and
FINALLY, BE IT FURTHER RESOLVED, that the City Manager acting as the Personnel Officer has the authority to take any necessary administrative actions to implement the provisions of this resolution.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Avalon on this 15th day of August, 2023, by the following vote:
Ayes:
Noes:
Abstain:Absent:
Ann H. Marshall, Mayor
ATTEST:
Gabrielle Morones, Deputy City Clerk
Addendum to the NIOU between
the City of Avalon and the IAFF Local 2295
TEMPORARY ACTING PAY -FIRE CAPTAIN
INTENT
The assignment of Acting Captain is intended to:
a. Provide a supervisor to temporarily replace a Fire Captain and; b. Provide an opportunity for those individuals seeking promotion to the position of Fire Captain to be educated in the activities and responsibilities of the higher position.
ELICI BILlTV
Those individuals who have at least five years of full time paid municipal firelightingexperience, and whom are qualified to work as a Fire Engineer.
Those individuals who are eligible for assignment as Acting Captain may be assigned to work in the capacity by the Fire Chief The Fire Chiefs’ evaluation for assignment to Acting Captainshall be based on the following:
L. Blue Card Command Certificate —50 hours
2. LA County Fire Department Captains Academy - 40 hours3. ICS 300, ICS 400, ICS 700
4. Completion of 240 hours of Acting Captain shifts under the supervision of the shift Captain.
The Fire Chief shall determine the issue of shift assignment for Acting Captains when the regularfull time Captains cannot fill the Captain’s shill. The Fire Chief also has the ability to exercisethe option of not filling the shift with an Acting Captain. Possible resolution of disputes over the issue of rotation between shifts are open to discussion on a case-by-case basis.
TRAINING AND EDUCATION
For those assigned as Acting Captains, the CITY, if requested by the individual or recommended by the Fire Chief may provide approved Officer training.
The Department shall make reasonable effort to provide formal in house instruction to all individuals assigned as Acting Captain regarding the procedures of day-to-day operations. Theinstructions may include, but not limited to:
• Maintaining log book• Completion of incident report forms• Narrative rcport writing • Handling disciplinary action and charges of discrimination and sexual harassment • Recall procedures• Memorandum of Understanding
• Familiarizations with Communication Protocols and Manuals• Familiarizations with Department and City Policy and Procedure Manuals • Employee Time Cards
• Appropriate procedures for reporting workplace injuries and exposures• The ability to perform and document basic company level fire inspections.• Train, supervise and motivate subordinate personnel • Create and supervise Reserve Fire personnel on scheduled drill nights.• Maintenance requests for all Fire apparatus and equipment. • Being tip to date on key personnel and chain of conmiand throughout the entire City including lead stakeholders in the Community.
PERFORMANCE EVALUATION
Acting Captains shall not conduct performance evaluations, unless he/she or they have acted as the affected individual’s supervisor for at least six months.
DISCIPLINARY ACTION’
Acting Captains shall have the same authority as Captains to discipline subordinates in accordance with appropriate personnel regulations.
COMPENSATION
The employee working as Acting Captain pertbrms 100% of the duties of the upgraded position and does not retain any regular duties of the previous position.
Employees may be temporarily assigned to perform the duties ofa higher classification without additional compensation for up to lout (4) hours.
Upon approval of the Fire Chief or his designee an employee is assigned on a temporary basis to the duties of Fire Captain in excess of four (4) consecutive hours or more and such employee assumes thefull duties and responsibilities of the higher classification, the employee shall receive additional compensation as follows:
Firefighter certified as Engineer —While performing the temporary upgrade assignment, the employee shall be placed at the Step in the Fire Captain’s range that is Five percent (5%) abovethe employee’s base pay including Engineer certification pay while performing temporary upgrade assignment as Fire Captain.
Fire Engineer — While performing the temporary upgrade assignment, the employee shall be placed at the Step in the Fire Captain’s range that is Five percent (5%) above the Employee’s base pay while performing temporary upgrade assignment as Fire Captain The parties agree that to the extent permitted by law, this pay is special compensation and shall be reported as such pursuant to Title 2, CCR 571 (a)(3) Premium Pay — Temporary Upgrade Pay.
Longevity Pay shall continue at the employee’s normal base pay even when the employee is beingcompensated at the Temporary Acting Captain Rate as set forth herein.
The Parties AGREE to include the foregoing language to the current MOU this day of August 2023:
On Behalf of IAFF 2295:
Ryan line
On Behalf of the City of Avalon:
Daxid M. Maistros, City Manager Christia’Ttineros
L
David Long
Addendum to the NIOU between
the City of Avalon and the IAFF Local 2295
BILINGUAL PAY
The ability to speak a “second Ianguage while working in the emergency services is a valuableasset for an employee to possess. An employee may he designated to assist in times of languagebarrier translation needs. while having the ability to be able to communicate without difficulty conversational and cursory medical conversation in a second language. For all employees designated by the Fire Chief, who establish to the satisfaction of the Chief and the City Manager proficiency in conversing and reading skills in Spanish shall receive bilingual pay using the following guidelines:
I. Employees assigned to shift work who pass thc Citys bilingual proficiency test will receive bilingual pay in the amount of One Hundred dollars (S 100.00) per month.
2. Employees assigned to shift or non-shift sork sill receive bilingual pay of One Hundred dollars ($100.00) per month provided the employee is in regular contact with the public and subject to utilizing thcir bilingual skills. Temporary reassignments to non-public positions vill not disqualify an otherwise qualified employee ibm receiving bilingual pay.
3. Bilingual pay shall be paid as a flat biweekly amount.
4. The parties agree that to the extent permitted by law this pay is special coilipcnsatiomi and shall be reported as such pursuant to Title 2 CCR, Section 571(a) (2) Special Assignment Pay — Bilingual Pay.
The Parties AGREE to include the foregoing language to the current MOU this day of August 2023:On Behalf of the City of Avalon: On Behalf of 14FF 2295:
id M. Maistros. City Manager Christian Ctsneros
‘In
Ryaf Kceline
David
LOt
. ..
RESOLUTION NO. 22-25
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AVALON
APPROVING THE MEMORANDUM OF UNDERSTANDING BETWEEN
THE CITY OF AVALON AND
THE INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 EFFECTIVE JULY 1,2022 THROUGH JUNE 30, 2025
WHEREAS, the International Association of Firefighters Local 2295 (IAFF) is a recognized employees organization representing employees in the classification of FireCaptain, Fire Engineer and Fire Fighter; and WHEREAS, the City requested and IAFF agreed to open contract negotiations in February 2022; and
WHEREAS, the City has satisfied its obligations under Government Code Section 3505 and the City Personnel Rules and Regulations to meet and confer over the terms and conditions of employment contained in the MOU; and
WHEREAS, the City Council previously approved and adopted the terms and conditions set forth in the MOU between the City of Avalon and IAFF on July 16, 2019;and WHEREAS, the COVID-19 pandemic caused the City to face a significant and real financial emergency; and
WHEREAS, the MOU article ‘Exclusive City Rights and Authority,” provides the City with the ability “to take any and all necessary action to carry out the mission of the City in emergencies”; and
WHEREAS, the City Manager used this authority to amend existing MOUs in order to realize significant cost savings for the City’s general fund; and WHEREAS, the emergency modifications to the MOU were adopted on August 3, 2020 and made effective until June 30, 2022: and
WHEREAS, the City has experienced some financial recovery since 2020; and WHEREAS, the new MOU provisions restore the benefits rescinded on August 4, 2020; and
WHEREAS, the IAFF and City Manager have reached an agreement and support the articles outlined in the MOU.
NOW, THEREFORE, BE IT RESOLVED, that the City Council hereby approves the terms and conditions set forth in the MOU between the City of Avalon and IAFF, a .
copy of which accompanies this City Council item and is incorporated by reference herein:
and
BE IT FURTHER RESOLVED, the terms and conditions of the MOU shall be in full force and effect from July 1, 2022 through June 30, 2025, except as specified otherwise in the MOU; and
BE IT FURTHER RESOLVED, that it is not the intent of the City Council in approving this MOU to change, modify or repeal in any way any of the existing rules of the City of Avalon: and
FINALLY, BE IT FURTHER RESOLVED, that the City Manager acting as the Personnel Officer has the authority to take any necessary administrative actions toimplement the provisions of this resolution.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Avalon on this 3rd day of May, 2022 by the following vote:
AYES: Mayor Marshall, Councilmembers De La Rosa, Lavelle, MacGugan-Cassidy and Ponce.NOES: None.
ABSTAIN: None.ABSENT: None.
Ann H. Marshall, Mayor
ATTEST:
babrielle Morones, Deputy City Clerk / Sr. Admin. Assist.
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE CITY OF AVALON
AND
THE INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 JUNE 1, 2022 — JUNE 30, 2025
ADOPTED MAY 3, 2022
. .
-a-
. .
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL. 2295 MOU
TABLE OF CONTENTS
PURPOSE 3NON-DISCRIMINATION 3
FULL UNDERSTANDING, MODIFICATION, AND WAIVER 3
MUTUAL RECOMMENDATION 4
PLEDGE OF COOPERATION 4EXCLUSIVE CITY RIGHTS AND AUTHORITY 4 RECOGNITION/UNION NIEMBERSIIIP 6
PERSONNEL RULES AND REGULATIONS 6
ALLOWANCES 6
SPECIAL PAY 7
TRAINING LEAVE AND PAY 8
HEALTH CAR 8
OVERTIME 9
RETIREMENT 10
LAYOFFS AND SEPARATION 12
LONGEVITY PAY 13
COST OF LIVING 13
SECTION 125 PLAN 14
VACATION AND SICK LEAVE 14
. .
INTERNATIONAL ASSOCIATION OF FIREFiGHTERS LOCAL 2295 MOU PEACEFUL PERFORMANCE OF CITY SERVICES 16
HEALTH AND SAFETY 16
SAVINGS CLAUSE 17
DURATION OF AGREEMENT 17ASSOCIATION CONSIDERATIONS 17
ASSOCIATION REPRESENTATIVE LEAVE ISCATASTROPHIC LEAVE 18 GRIEVANCE PROCEDURE 19
SALARY 22
PARITY 22I)IJES DEDUCTIONS 22
2 .
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU
PURPOSE
It is the purpose of this Memorandum of Understanding (also referred to herein as “MOU” and LAgreenlent) to promote and provide for harmonious relations, cooperation and understandingbetween the City of Avalon (referred to hereinafter as “Employer’ or “City”) and theInternational Association of Firefighters, Local 2295 (referred to hereinafter as “Union”) and the employees covered herein; to provide ordery means of attempting to resolve misunderstandingsor differences which may arise under this Memorandum of Understanding: and to set forth theunderstanding of the parties reached as a result of good faith negotiations regarding the wages,hours and other terms and conditions of employment of the employees covered hereby.
NON-DISCRIM INATION
The City and Union recognize the right of the employees to form, join or participate in lawful activities of employee organizations and the equal alternative right of employees to refuse to fonn, join or participate in employee organization activities. No employee shall be intimidated, coerced, restrained or discriminated against by the City or the Union in any manner which isunlawful pursuant to state or federal law. This Article is not to be subject to the Grievance Procedure.
The City and the Union agree that no employee will he promoted, demoted, rransferred, bypassed ftr promotion, disciplined, or discharged or in any way discriminated against because ofrace, color, sex, age, national origin, disability, veteran status, marital status, mental or physicaldisability, sexual orientation, medical condition, political or religious opinions or affiliations.
The City and the Union shall reopen any provision of this Agreement for the purpose of complying with any final order of the federal or state agency or court of competent jurisdictionrequiring a modification or change in any provision of this Agreement in compliance with stateor federal anti-discrimination laws. Equal employment opportunity will be extended to all persons in all aspects of the employer-employee relationship, including recruitment, hiring, upgrading, training, promotion, transfer, discipline, layoff, recall, and termination.Whenever the masculine gender is used in this Memorandum of Understanding, it shall heunderstood to include the fernin inc gender.
FULL UNDERSTANDING. MODIFICATION. AND WAIVER
This MOU contains all of the covenants, stipulations and provisions agreed upon by the parties,and any other prior existing understanding or agreements by the parties, whether formal or informal, regarding any such matters contained in this MOU are hereby superseded or terminatedin their entirety.
Any agreement, alteration, understanding, variation, waiver or modification of any of the terms or provisions contained herein shall not he binding upon the parties hereto unless made and executed in writing by all parties hereto, and approved and implemented by Avalon’s CityCouncil. 3 .
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU The waiver of any breach, term or condition of this Memorandum of Understanding by eitherparty shall not constitute a precedent in the future enforcement of all its terms and provisions.For the life of this MOU, Union and the City mutually agree [hat to reopen negotiations with respect to any subject or matter covered in this MOU requires mutual consent by both parties.
Without such mutual consent, the panics shall not be required to meet and confer regardingsame.
MUTUAL RECOMMENDATION
This Memorandum of Understanding constitutes a mutual recommendation to he submitted tothe Avalon City Council. This Memorandum ol Understanding shall not be binding upon the parties in whole or in pan unless and until said Avalon City Council fornially approves said Memorandum of Understanding. Additionally, this MOE.) shall nor be binding in whole or in part unless and until it is ratified by the Union’s memnhersiemployees.
PLEDGE OF COOPERATION
The parties to this MOU realize that the things that would be in the best interest of both the Union, employees arid City, in the long run, are largely identical and all parties will benefit fronia continuous, peaceful relationship and intelligent, constructive efforts to resolve any differencesthat may arise.
The City and the Union have entered into a partnership that will ensure efficient operations while pledging to work together to best serve the needs of the City’s citizens.
EXCLUSIVE CITY RIGUTS AND AUThORITY
The City reserves.,retais and is vested with, solely and exclusively, all rights of management as allowed by law, unless modified by this Memorandum of Understanding. The rights of the City include, hut are nut km ited to. the exclusive right to:
A. To manage the City enerally and to determine the issues of policy.
B. To detenuine the existence or non-existence of facts which are the basis of the management deeison.
C’. To determine the necessity and organization of any service or activity conducted by the City and expand or diminish service.
D. To determiiine the nature, manner, means, and technology and extent of services to be provided to the public.
E, Methods of financing.
F. Types of equipnient or technology to be used.
G. To determine and/or change the facilities, methods, technology, means and size of the work force by which City operations are to he conducted. 4 .
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 NIOU I-i. To determine and change the number of locations, relocations and types ot operations, processes, and materials to he used in carrying out all City functions including. but not limited to, the right to contract for or sub-contract any work or operation.
I. To determine the size and composition of the workforce, to make provisional appointments when it is in the best interest of the City, when a provisional appointmentof an at-will employee is made during the period of suspension of an employee or pending final action on proceedings to review the suspension, demotion or discharge of an employee.
L To assign work to and schedule employees in accordance with requirements as detennined by the City, and to establish hours of work and change work schedules andassignrnenis.
K. To relieve employees from duties for lack of work or similar non—disciplinary reasons.
L. To establish and modify productivity and perfonnance programs and standards M. To discharge. suspend, demote or othenvise discipline employees [or proper cause in accordance wiih the provisions and procedures set forth in City’s Personnel Rules and Regulations.
N. To determine oh classification, assign positions to job classifications, to reclassify employees without competition as long as the employees are qualified and employment laws are followed, to create new classification positions, and/or salary ranges as needed, and/or to under fill any allocated position.
0. To hire, transfer, promote and demote employees for non-disciplinary reasons in accordance with the City’s Personnel Rules and Regulations.
P. To determine policies, procedures and the standards for selecton, training and promotion of employees.
Q. To establish and manage to employee performance standards including, but not limited to. quality and quantity standards and to require compliance therewith.
R. To maintain order and efficiency in its facilities and operations.
S. To establish and promulgate and’or modify rules and regulations to maintain nrder and safety in the City, which are not in contravention with this Agreement.
T. To take any and all necessary action to can)’ out the mission of the City in emergencies.
Where management makes any changes in working conditions because of the requirements of Federal and State law, the City shall not he required to negotiate the matter or manner of compliance with such law where the manner ol’ compliance is specified by such law. Except in emergencies, or where the City is required to make changes in its operations because ot’ therequirements of Law, whenever the contemplated exercise of management’s rights shall impact on a significant number of employees of the bargaining unit, the City agrees to meet and confer with the Union on all matters relating to employment conditions and employer-employee relations including wages, hours and terms and conditions of employment of employees within the bargaining unit unless the matter of the exercise of such rights is provided for in this Memorandum of Understanding. Nothing in this Article is intended to modify the City’s )
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU obligations under the Meyers-Milias Brown Act.
RECOGNITION/UNION MEMBERSHIP
The City recognizes the Union pursuant to the provisions of’ the Avalon Municipal Code Section 2-6.101 et. seq. as the exclusive bargaining representative for all employees employed by theCity who are members of the International Association of Firefighters Local 2295 only, and noother Fire Department employees, in full-time employment of’the City. The MOU shall apply toclassificalions and posilions reprcsented by the International Association of Firefighters Local No. 2295. which are not management unit employees, reservists, seasonal, temporary or contract employees, or who are otherwise employed in an at-will classification.
General Unit:
I. Captain
2. Engineer
3. Fire Fighter
PERSONNEL RULES AND REGULATIONS
It is tindentood and agreed that there exists within the City, in written or unwritten form certain personnel rules, policies, practices and benefits, generally contained in the “City of Avalon’s Personnel Rules and Regulations,” as amended thereafter by City resolutions and Memoranda ofUnderstanding. Those rules, policies and benefits, which are subject to the meet and confer process, will continue in clicci. except for those provisions modified by this Agreement, unless and until modified by mutual agreement of the parties and enacted by the Avalon City council. it necessary, in accordance with state laws. orders, regulations, official instructions or policies.
Where [he terms of the City of Avalon’s Personnel Rules and Regulations and this Memorandumof Understanding are in conflict, the terms of this MOU shall prevail.
ALLOWANCES
Uniform Allowance: Employees are required to wear a specific standard unit’onn that will hepurchased annually by the City as follows:These items will include up to: three (3) pairs of pants, ihrce (3) collared shirts, one (I) job shirt,one (1) belt, six (6) uniform tee shirts, one (I) pair of safety boots, and one (I) pair ofeyewear; as well as items from the approved en i fonu list valued at an amount not to exceed $1,500.Employees that leave the City’s service shall return their uniforms to the City on their final dayof emuplo9nent. All employees shall come to work in clean uniforms each clay, agree to theestablishment of a specific uniform standard, and agree to abide by this standard once adopted.on a year-round basis. Items not deemed necessary to personal health and safety will be subject to CALPers and will be reported to CALPers as special compensation for “Classic” or ‘Tier employees.Cell Phone Reimbursement; In accordance with the City’s Mobile Device Policy, employees whose job duties include the regular, frequent or ongoing need for a device may receive compensation for a cell phone or smart phone, data plan, tablet and hot spot device, in the form 6 .
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU of a monthly Stipend to cover City business-related costs (Option 1), or may be issued a Cityowned mobile device (Option 2), up to the City allowable maximums and with approval in accordance with policy. Employees may request a reimbursement option to their immediate supervisor with final approval to be determined by the City Manager Education Reimbursement: The Fire Department will be allocated 55.000 each year to reimburse employees pursuing education in job-related programs at an accredited college, university or vocational school. Employees are eligible to receive up to 50% reimbursement on actual costs oftuition, books, lab fees or other student expenses. Eligibility for tuition reimbursement will be at the Department head’s and City Manager’s discretion. Employees must have been employed full-time at the City of Avalon for a minimum of one year to be eligible tbr reimbursement. The employee will be required to maintain employment after reimbursement for a minimum of two years. The employee shall be reimbursed for actual costs of tuition, books. lab fees or otherstudent expenses only upon completion of courses each individual with a grade of “B” or better,or successful completion of courses that do not assign grades. Proof of satisfactory course completioa and payment must be provided.
Travel Reimbursement: On a semi-annual basis, employees shall receive reimbursement for one subsidized cross-channel commuter book provided by the Catalina Express Employees must have been employed full—time at the City of Avalon for a minimum of one year to he eligible to:
reimnbursement.
SPECIAL PAY
Special Event Pay. When the Fire Chief requires the use of an employee covered by this agm’eemcnt during the mining or taping of movies, commercials or private/commercial special events within the City limits, each of the required personnel shall be paid by ihe City at a rate of $75.00 per hour. for up to eight (8) hours Any time over eight (8) hours in a day vil I he paid atthe rate of$l 12.50 per hour.
Volunteer Drill Pay. Full-time employees shall receive a minimum of three (3) hours overtime pay when they are designated by the Fire Chief to train at the regular bi-weekly volunteer drill, if the drill is not held during the employee’s regular work shift.Special Drill Pay. Full-time employees shall receive a minimum of three (3) hours overtime pay for a special drill to he scheduled once a tnonth throughout the year by the Fire Chief, if the drillis not held during the employee’s regular work slim ft. The City will endeavor to hold drills on a regular basis.
Call Backs. .ll call backs to the station, in response to a fire alarm or by direction of the FireChief, shall receive a minimum of three (3) hours overtime pay. This shall apply to off-duty personnel or those on vacation, at the Fire Chief’s discretion.
BilinualfyWhen the Fire Chief determines that a position requires bilingual skills on average of at least 10% of the employee’s work time, such an employee in the designated position may become eligible For Bilingual Pay. An employee shall first demonstrate a language proficiency of job-related terminology acceptable to the Fire Chief or his designee and the Personnel Officer. 7 INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU Thereafter, the employee shall be entitled to the painent of S25 a month for bilingual pay.
TRAINING LEAVE AND PAY
On an annual basis, as part of the budgeting process, the City shall establish an amount to be allocated toward training leave and pay. The allocation of funds from this account shall be made on a case by case basis, in accordance with each year’s budget, at the discretion of the Fire Chief.
Employees on approved training leave will receive their normal rate of pay and/or an overtime rate in accordance with FLSA for hours spent traveling to and attending such training.
Employees may also be reimbursed in accordance with the City’s travel and expense policy.
HEALTH CARE
Health Insurance. The City shall pay the cost of employee’ health insurance premiums. as well as spouse/registered domestic partner insurance costs, except that the maximum amount paid by the City shalt be no more than $1,600.00 for a fanuly rate up to the City paid maximum, as defined below.
The following monthly City maximum contribution benefits shall apply effective January 12019:
Full-time employees hired before December31, 2015:
*City
Status Maximum
Employee Only $777.99Employee + 1 SI ,2S3.2 I
Employee -I- Family $1,600.00
Full-time employees hired after January I. 2016j
Cit’
Status Maximum
Employee Only $667.69Employee+l Sl,l71.91
Einployee+ Family $1,501.22
The City will only pay tip to the maximum contribution (City maximum) or the premium of the health plan selected by the employee, whichever is lower. The employee must pay either the cost of the premium not covered by the City Maximum or the minimum contribution (Employee minimum) as stated above, whirhever is higher.
Once a covered dependent is no longer eligible because of age limitations in the policies ordeceased, said coverage shall cease. Dependent is defined as spouse or child who incas the criteria set forth by the medical insurance provider.
S
.
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU Dental Benefits: The City thai) continue to pay 100% of the employee and eligible dependent’s dental coverage. Once a covered dependent is no longer eligible because of age limitations inthe policies or deceased, said coverage shall cease, Dependent is defined as spouse or child who meets the criteria set forth by the tnedical insurance provider.
Life Insurance: The City shall pay one hundred percent (100%) of the premium for a term life insurance policy for each eligible employee which shall be based upon a formula of one times the employee’s annual salary rounded up to the nearest thousand dollars, up to a maximum City paid coverage of $50,000 (i.e., an employee who earns $20,L00 would receive $21,000). This group term insurance is on a non-participating basis, with option to convert coverage upon termination of employment. Payment of benefits is subject to all the provistons of the masterpolicy. This benefit replaces any other life insurance coverage.
Vision Benetits: The City’s contribution for vision insurance shall be 100% employer-paid for family coverage for the term of this MOU. Once a covered dependent is no longer eligible because of age limitations in the policies or deceased, said coverage shall cease. Dependent is defined as spouse or child who meets the criteria set forth by the medical insurance provider.
QPLOut Benefit: An employee cannot be enrolled in the City’s dental, vision or PERS health plan ifa spouse is enrolled in the same agency or enrolled in ‘an agency with PERS health, unless the mpIoyee (or the spouse) is enrolled without being covered as a family member.
Additionally, an employee may choose to not be enrolled in the City’s dental, vision or PERS health plan. In such cases, [he City. a ‘icr determining that a mm mum amount of heal Ui coverage is provided to [he employee (by their spouse or other coverage), shall pay an employee that has waived coverage a cash allowance of $300 per month or pay into the employee’s deferred compensation plan (a plan administered by the City) $300 per month. If the employeewants to have all or a portion of the deferred compensation payment to he credited towards the dependent coverage cost, then the remaining balance, if any, hall he credited to the employee’s deferred compensation account. To be eligible for this “opt out benefit payment, the employee must provide proof. as determined by the City, that comparable medical insurance is in full force and effect. In the event the employee loses eligihility (with documentation) then the employee may re—enroll in the plan pursuant to the PIERS health plan rules.
Physical Exams. The City may authorize annual physical exaniinations for all covered employees. The City shall pay the costs of any such examination not covered by the Employees health insurance.
OVERTIME
“Kelly Schedule” - Fii’e suppression personnel shall work the “Kelly Schedule.” represented by one twenty-four (24) hour shift of scheduled work, followed by twenty-four (24) hours off duty, followed by another twenty-four (24) hour shill of scheduled work, followed by another twentyfour (24) hours off duty, followed by another twenty-four (24) hour shift of scheduled work followed by ninety-six (96) hours off duty.
‘[he City has elected and the parties agree to a fourteen (14) day FLSA work period, for tire suppression employees, subject to the partial overtime pay exemption set forth in Section 7(k) of C)
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INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU the FLSA to coincide with the City’s regular pay periods. Except as otherwise provided herein, no overtime compensation will he paid unless the total number of hours worked per 14 day period exceeds 106 hours. Effective with the first pay period after ratification and approval of this MOU by the City Council, time worked outside of an employee’s regularly scheduled shiftshall be compensated at an overtime rate of time and one-half (I ¼) for all hours worked and shall be paid on an hour for hour basis fbr actual hours worked outside of an employee’s regularly assigned work schedule. Employees that work more than 106 hours in a 4 day work period are automatically entitled to overtime in accordance with the FLSA 14 day period at a rare of one and one half their regular pay.
Except as otherwise outlined herein, “hours worked” means time when the employee is actually perfornung services for the employer. Compensatory and vacation time taken during the pay period shall he included for the purpose of calculating overtime. Any other leaves of absenceand’or sick leave shall not he considered as hours worked fiw the purpose of calculatingovertime. Vacation usage ill be on an hour-for-hour basis. uTespcctive of what work schedule is employed. All employees shall he subject to be called for service at any time to meet any and all emergencies or unusual conditions which, in the opinion of the Department 1-lead or designee, may require such service from any of said employees.If mutually agrccd to by the employee, and the Fire Chief approves in writing of the accumulation, the empLoyee may receive “compensatory time” as tine off with pay in lieu ofovertime pay for regularly scheduled, or irregular or occasional overtime work. There shallabsolutely be no coercion used to ohtatn mutual agreement. Requests for the use of accumulated compensatory time off shall be reasonably honored, taking into consideration the needs of the department. Conipensa’.ory time accumulation shall not exceed at any time two hundred forty (240) hours anntmally and employees may only carry forward up to 144 hours of comp time intothe next year. Payouts shall he made annually by December 31st of each year. Compensatorytime must be accumulated consistent with the provisions of this MOU with the employee earning one and one-half( 1-1/2) hours compensatory time off for each hour of overtime worked.Overtime will be analyzed by the Finance Department quarterly. By the third quarter of the Fiscal Year, the City Manager reserves the right to request to reopen negotiations and to limitnegotiations solely to this Article.
RETIREMENT
Upon separation of ernplownent, every employee will receive a retirement agreement that will address all facets of compensation based on the applicable MOU in pace at the time of separation.
CaIPERS Contribution:
Any employee hired after January 1,2013 and who meets the definition of a “new membei’ as defined by Government Code section 7522.04W) will be required to pay 50% of the “normal cost” of the defined benefit, rounded to the nearest quarter of 1 percent, or the currentcontribution rate of similarly situated employees, whichever is greater, as specified inGovernment Code section 7522.30. Any new member who has not become vested by having 10 .
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU paid the employee’s contribution to CaIPERS for the first five (5) years of continuous service as of January 1, 2013, will be required to pay the employee’s share of the contribution (EPMC) to hind a portion of the cost of the 2.7% at age 57 retirement formula an amount equal to 12% of compensation earnable on a pre-tax basis for safety, as specified in Government Code Section 205 165(f). Retirees will be eligible to begin receiving retirement benefits once they are deemed qualified in accordance with the CaIPERS retirement system.
Any employee who established CaIPERS membership prior to January 1,2013 who is already vested after having paid the employee’s contribution to CaIPERS for the first five (5) years of continuous service, will be required to pay the employee’s share of the contribution (EPMC) tofund a portion of the cost of the 2% at 50 retirement formula an amount equal to 9% ofcompensation earnable on a pre-tax basis, in accordance with Section 20516(0. Effective January 1, 2015, the employee’s pre-tax contribution pursuant to Section 20516(0 shall be increased such that the employee will be required to contribute a full 12% of pay for safety members. as specified in Government Code section 20516.5. Retirees will be eligible to beginreceiving retirement benefits once they are deemed qualified in accordance with the CaIPERSretirement system.Retirement Calculations:
Tier 1-36 Consecutive Months -For employees hired prior to December 31, 2012 and inaccordance with the City’s contract with CaIPERS, the final compensation provision of Public Employees Retirement Law shall use your highest average hill—time monthly pay rate for 36 consecutive months ofcmployment.
Tier II — Three (3) highest year average — For employees hired on or aFter January 1, 2013 the provision of Section 7522.32(a) of the Public Employees Retirement Law (three (3)consecutive years of employment) shall apply to safety members.
Retirement Formula:
Tier I — 2% at 50 - All employees covered under this provision of this MOU hired prior to December 31, 2012 shall have their final percentage of final compensation to be provided foreach year of credited prior and current service determined in accordance with Section 21354.3 of the Public Employees Retirement Law (2% at 50).Tier II — 2.7% at 57 - All employees covered under this provision of this MOU hired on orafter January I, 2013 shall have their final percentage of final compensation to he provided for each year of credited prior and current service determined in accordance with Section 7522.20 of the Public Employees Retirement Law (2.7% at 57) based on Article 4 of California Public Employee’s Pension Reform Act of 2013.
Purchase of Military Service Credit as Public Service: Pursuant to Section 21024 of the PublicEmployee’s Retirement Law, an employee may elect to purchase up to four (4) years of service credit for any continuous active military or merchant marine service prior to employmentprovided, however, the employee must contribute an amount equal to the contribution for currentand prior service that the employee and the City would have made with respect to that period of service.
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INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU Post Retirement Sunivor Allowance: Pursuant to the piovisions of Section 2I624 and 21626 of the Public Employee’s Retirement Law, an allowance may be continued to a surviving spouseupon the death ofa member after retirement, Retiree Medical: All full-time employees hired on or before May I, 2022 that retire after twenty (20) or mole years service with the City shall have the same medical, dental, and visionretirement benefits up to the City paid niaxiniuin contribution (City maximum) or the premium of the health plan selected by the employee (whichever is lower) as compared to current activeemployees enrolled in the PERS Choice Blue Cross plan. Once a qualified retiree as set forth herein becomes eligible for Medicare the City shall reimburse for the CaIPERS supplemental medical premium for employee only coverage.
Distributions for Qualified Health, and Long-term Care Premiums: Retired or disabled public safety officers (Firefighters) may elect to have a maximum of 53,000 per year subtracted from their 457 plan distributions and sent directly to a health or long term care provider to pay premiums. A retired or disabled public safety officer may elect to have these amounts excluded from gross income for Federal income tax purposes. To receive this favorable tax treatment, the retired or disabled public officers must make this election on their federal income tax returns.
LAYOFFS AND SEPARATION
Shall be conducted in accordance with the City’s Personnel Rules and Regulations with layoffs. displacements and separations iii each class series or in the same classification, within the bargaining unit where the affected employee held regular status, according mo seniority.
Recall from hiyoff shall be in direct order of seniority within the family of jobs. Temporary, provisional, and probationary employees shall he called back to work after regular employees ina previously held status within their bargaining unit, covered by this agreement. Employees in good standing with their perfonnance may he reinstated within two (2) years to a position in which they have the availability, qualifications, experience and satisfactory work performance to fulfill the requirements of the position and must serve a new probationary period of six (6) months. Examination may he waived and take precedent over established lists for reinstatementto the same position as long as the employee meets the qualifications for the position hut in no way shall it he mandatory for the department head to reappoint a former employee, and only providing the employee was in good standing in the perfommnce of assigned job duties at the time of layoft should he or she desire not to do so. Appointment shall otherwise he in themanner as for original employment based on qualifications to determine the most highlyqualified individual for the position and shall be based on merit and ability. Upon reinstatement, any employee so appointed shall be considered a new appointee and shall have no vested interest in or be entitled to reinstatement of any benefits accrued during any previous employment with the City. An employee may he terminated by the Department Head when deemed necessary or convenient as a result of substantial changes in duties or organization, abolition of position,shortages of work funds, or completion of work for which employment was made Such termination shall not he subject to appeal.
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INTERNATIONAL ASSOCIATION OF FIREFIGhTERS LOCAL 2295 NIOU
LONGV(TY PAY
Employees shall, upon completion of ten (10) or more years’ continuous service and uninterrupted service be eligible for longevity pay on an employee’s anniversary date, in the pay period following the dale of eligibility, as follows:
Years of Service Completed Percentage of Base Salary
10 years thru 14 years 5%
15 years thru 19 years an additional 5% (10% total)
21) years and above an additional 5% (15% total)
Public Agency Longevity Pay is compensation earnable within the meaning of Section 20636 of the California Government Code and Section 57l(a)( I) of the (‘aIPERS regulations.
Vacations, sick leave, military lease and absence authorized by the City Manager shall not he considered an interruption of service.
In the event an employee ceases to be employed by the City for a reason other than military service or lay-off, all rights to longevity pay shall he forfeited and expire, and if said employee is subsequently re-employed by the City, said employee shall not he entitled to any longcvity pay by reason of any prior employment.
In accordance with the years of service completed schedule, and It) year requirement above, new employees hired beginning July I, 2015 shall not be eligible to receive greater than 10% longevity pay during their employment with the Cny
COST OF LIVING
cst of’ Livin2 Increases:
Employer Paid Member Contributions (EPMCJ: Over the term of the 2015-2018 MOU the City agreed to increase pay, by the same percentage of pay, for all CaIPERS Classic bargaining unit employees hired before January I, 2013, to lund up to 12% of the employee’s share of thecontribution (EPMC) for their retirement in accordance with the Public Employee’s Pension Reform Act (PEPRA). Rather than highlighting this separate EPMC category, the City will establish two tiers of salary schedules for employees hired before December 31, 2012 (Tier I) and employees hired alter January I, 2013 (Tier 2) with the previously stated EPMC absorbed accordingly.
Cost of Living Increases for Y-rated Employees: Y-rated employees, currently receivingcompensation above the total compensation market median shall remain Y-rated until the Consumer Price Index (CPI) for Urban Wage Earners in Los Angeles County shows a salary increase is warranted. During the tenn of the MOU. V-rated employees will not be eligible to receive the market study increasc
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INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU SECTION 125 PLAN
The City shall continue the Section 125 Flexible Spending Plan adopted by the City Council effective January 1996.
VACATION AND SICK LEAVE
Quarterly, both full time and part-time employees may sell back to the City. at one-for-one cash out. a portion of his or her accumulated vacation or holiday time, up to a maximum of 12 vacation ot holiday days combined up to a maximum of 22$ hours per year to he paid at straight time.
Employees shall accrue vacation and holiday leaves according to the following schedule:
Years of Service Completed Accrual Rate
0 years thni 4 years ISO hours (or 7.5 days) vacation + 144 hours (or 6 days) holiday leavc for a total of 324
hours (or 13.5 days)
5 years thru 9 years 240 hours (or 10 days) vacation + 144 hours (or 6 days) holiday leave 11w a total of 3$4
hours (or 1 6 days)
10 -years 300 hours (or 12.5 days) vacation ± 144
hours (or 6 day’s) holiday leave for a total of444 hours (18.5 days) No vacation shall he taken fir a period exceeding the maximum hours accumulated at any given time. Vacation and sick leave only accrues when an employee is in a paid status and not when an employee is on a Leave of Absence for more than thirty (30) days.
Employees may accrue up to a maximum of 960 hours (40days) of vacation and holiday leave.
Employees that reach the 960 hour (40 day) maximum, shall cease to accrue vacation and holiday leave until they use such leave to bring the aniount accrued below the maximum.
Vacation Leave Buy Downs: During the icon of this tVtOU an employee may elect to contribute the value of all unused and/or already accumulated vacation pay in excess of 720 hours, into the City’s 457 plan, or lo elect to receive a taxable cash distribution. The City shall cash out up to one half of this bank at 100% of its value on the last pay period of each quarter. Said distributions may not exceed the nonnal maximum allowed deferral limits as set forth by the IRS for the 457 plan.
Employees shall accrue 144 hours (or 6 days) of sick leave per year.
An employee may accumulate a maxunum of 30 work days (720 hours) of sick leave. If an employee’s sick leave balance exceeds 720 hours, the employee shall cease earning sick leave until the balance is 719 hours or less at the beginning of the next pay period. In 2026, an 14 .
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INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU employee may elect to contribute the value of all unused and/or already accumulated sick leave pay in excess of 360 hours, into the City’s 457 plan, HSA, or to elect to receive a taxable cash distribution. The City shall cash out up to one half of this bank at 100% of its value on or before December 31, 2026.
Sick Leave Use: Sick leave pay shall be requested only in cases of actual personal sickness or disability. medical or dental treatment, or as authorized by the Personnel Officer under the provisions of the Federal Family Medical Leave Act and/or the California Family Rights Act, or California Labor Code Section 233 (use of sick leave). Use of accrued sick leave shall he allowed for the purpose of preventative medical, dental, and care of a parent. spouse, registered domestic partner or child. An employee contemplating to be off work due to illness or injury for an extended period of two (2) weeks or more maybe required to provide a comprehensive healthstatement as to the length of absence from the employee’s health care provider stating any duties the employee cannot perform and any restrictions or light duty requirements. Ln such events.
FMLA and sick leave shall run concurrent. Employees requesting sick leave shall notify theirimtncdiate supervisor or department head prior to the time set for reporting to work, Stck leave with pay shall not be allowed unless an employee has met and complied with the provistons of this Memorandum of Understanding and the department head or the Personnel Officer hasapproved such payment.
Sick leave may he used for absence reasonably required by complications of pregnancy, continuing through delivery and reasonable period of recovery thcrel?oin, to he determined in accordance with written reports horn the employee’s physician. specifying the expected date of delivery and the (late that the employee should cease work. In no event shall an employee return to work after pregnancy prior to a date fixed by the physician in a signed statement that she is physically able to perform the duties of her position. Evcry regular employee shall be able to use accrued vacatton. compensatory lime, or holiday time when sick leave has been exhausted due to extended illness or injury unless they are on a medical certification program.
Pursuant to Kin Care legislation, employees may use tip to 50% of their annual sick leave accrued to attend to the illness of their child. parent, spouse, or registered domestic partner of the employee.
Sick Leave Abuse: Sick cave shall not he abused. The City reserves the right to require a satisfactory statement of a licensed physician whenever an employee misses work due to an illness, injury or disability. The Department Head or Personnel Officer may require a written statement front the attending physician or dentist, or a physician or dentist to whom the department head or Personnel Officer directs the employee to report, to establish that the employee is or was incapacitated and unable to perform his duties. The Department Head or Personnel Officer may require a written statement from the attending physician or dentist, or from the physician or dentist to whom the department head or Personnel Officer has required the employee to report and be examined by, that the employee is capable of and released to return to the performance of all of the duties of his position. The physicians statement must verify than an injury’ or disability exists or existed, its beginning and ending dates and.’or the employee’s ability to return to work without presenting an immediate and significant risk to his own health or safety, or the health and safety of others, and any other requirement in accordance with the City’s Sick Leave policy located in the Personnel Rules and Regulations. .buse of sick leave .
ENTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU shall be subject to progressive discipline, up to and including termination.
Management may not require doctor’s verification for sick leave of less than three (3) days unless sick leave abuse is strongly suspected and reasonably demonstrated.Sick leave shall be administered in accordance with the City of Avalon Personnel Rules and Regulations unless provided otherwise by a current MOU.Separation: Upon separation from City employment, an employee is entitled to receive payment for unused sick leave in accordance with the following schedule:
Years of Service Balance Payable
2-4 25 % of accrued and unused sick leave
59 50% of accrued and unused sick leave
10-i- 75% of accrued and unused sick leave
When calculating the total amount payable to an employee upon separation for his or her accrued and unused sick leave, the Personnel Officer shall determine the total amount of accrued andunused sick [cave, allocate an equal portion of’ such cave to each year of service, and determinethe highest houmly pay ratca for each year ofservice.
PEACEFUL PERFORMANCE OF CITY SERVICES
The Association, its officers, agents, rcpresentativcs and!or members agree that during the term of this Agreement, they will not cause or condone any strike (including sympathy strikes), walkout, slowdown. sickout or any other job action or stoppage of work by withholding orrefusing to perform services by union employees during the life of this Memorandum of Understanding.
The City agrees that it shall not lock out its employees during the term of this Agreement. The term “lockout” is hereby defined so as not to include the discharge, suspension, termination, layoft failure to recall, or failure to return to work of employees of the City in the exercise of its rights as set forth in any of the provisions of this Agreement or applicable ordinance or law.
Any employee who participates in any conduct prohibited as described above may be subject todisciplinary action, tip to and including termination.
HEALTH AND SAFETY
The City will comply with state and federal law and regulations relating to Occupational Safety and Health and endeavor to provide a safe and healthful work environment. Likewise, it is the duty of each employee to comply with all health and safety regulations of the City and to 16 .
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU practice good safety habits in the performance of their duties. All persons who drive City Vehicles shall be subject to the OMV driving record Pull Notice.
Avalon Firefightei-s IAFFF, Local 2295, endeavors to maintain a drug ti-ce environment. Shallthe City and the Union mutually agree to reopen negotiations regarding this specific article, both parties agree to limit negotiations solely to this Article.
SAVINGS CLAUSE
It is understood and agreed that all provisions of this Agreement are subject to applicable laws, and if any provision of any Article in the Agreement is held or found to be in conflict therewith. said Article shall be void anti shall not bind either of the parties hereto. However, such invalidity shall not affect the remaining Articles of this Agreement. In the event that any provision shall be held unlawftfl and unenforceable by any court ofcotnpeteat junsdiction. the panics agree to meet forthwith for the purpose of renegotiating such provision and attempt to reach a v&id agreement.
DURATION OF AGREEMENT
Except as herein provided, this Memorandum of Understandin2 shall he in effect from the date of its ratification until 12 o’clock midnight on June 30. 2025.
In the event either party hereto desires to negotiate (lie provisions of a successor Memot-andum of Understanding, such party shall serve upon the other, ninety (90) days prior to the termination date of this Agreement, its written request to commence negotiations. and, to the extent reasonably possible, its full and entire written proposal for such successor Memorandum of Understanding. Upon receipt of such written notice and proposals, negotiations shall begin thereafter not later than sixty (60) days prior to the termination date of this Agreement.
ASSOCIATION CONSIDERATIONS
City employees who arc official representatives of the Association shall he given reasonable time off with pay to attend meetings with management representatives, or to he present at hearings where matters within the scope nf representation or grievances are being considered. The use of official time for this purpose shall he reasonable and shall not interfere with the performance of City services as determined by the City.
Reasonable access to employee work locations shall be granted to officers of the Association as their officially designated representatives for the purpose of conducting business within the scope of representation. In the event an outside business agent or legal representative need be present, the Association shall provide the City with advanced notice. It is agreed that the Association representative(s) are permitted to conduct Association business during working hours and may use City facilities accessible to dip ptthlic provided that such activity does not interfere with the nonnal operations of the department or with established safety or security requirements. An employee is entitled to representation in the preparation and presentation of a grievance at any step in the grievance procedure. Only an employee who is a memher of the Association may be represented by the Association. The grievant(s) and one representative arc entitled to be released from work for a reasonable Period of time in order to prepare for and present the grievance.
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INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU Except in ease of emergency, reasonable advance written notice shall be given to the Association of any ordinance, rule, resolution or regulation directly relating to matters within the scope ofrepresentation proposed to be adopted by the City Council and shall be given the opportunity tomeet with such body prior to adoption. In case of emergency when the City Council determines that an ordinance, rule, resolution or regulation must he adopted immediately without priornotice or meeting with the Association, the City shall provide such notice and opportunity tomeet at the earliest practical time following the adoption of such ordinance, rule, resolution or regulation.
ASSOCIATION REPRESENTATIVE LEAVE
The City shall provide an aggregate total of three (3), 24 (twenty-four) hour shills, per unionrepresentative, per year for use by the Associntion Representatives to attend employer-employeerelated seminars, conferences etc. No alternative representatives may attend in lieu of the actualrepresentative. Time off request will be subject to agreement with the Fire Chief and the availability of replacement personnel. Time off requests shall not he scrutinized based onseminar subject matter or any factor outside of availability of replacement personnel. Association Representative Leave does not qualify as ‘lime worked’S and will not be subject to overtime.
CATASTROPHIC LEAVE
A permanent employee may be granted a Catastrophic Leave for tip 8 weeks, if the employee or eligible Family member has suffered a catastrophic illness or injury, and exhausted all applicable accrued paid time. An eligible family member includes the employee’s spouse, parent, child,sibling, grandparent, grandchild; in—laws and step—relatives in these relationships; and other persons residing in the employee’s household lbr whom there isa personal obligation.
Catastrophic illness or injury is a serious non-work-related health condition which incapacitates the employee, or their eligible family member, and which creates a financial hardship becausethe employee has exhausted their sick and vacation leave, as well as any compensatory time off if employed in a non-exempt position. A catastrophic illness or injury is defined as a serious illness, injury, impairment, or physical or mental condition that is present for a minimum of seven calendar days, and that involves:
I. A period of incapacity or treatment connected with inpatient care (e.g., an overnight stay) in a hospital, hospice, or residential medical care facility; or
2. A period of incapacity requiring absence of more than seven calendar days from work, and that also involves continuing treatment by (or under the supervision of) a licensed health care provider; or
3. A period of incapacity (or for treatment) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
4. A period of incapacity that is long-tenn due to a condition for which treatment may be ineffective (e.g., stroke, terminal disease, etc.); or
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INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU
5. An absence to receive multiple treatments (including any period of recovery therefrom) either for restorative surgery after an accident or other injury, or for a chronic condition such as cancer or kidney disease.
All medical conditions are considered to be confidential Lnfonnation. No details regarding personal medical information will he provided in response to inquiries.
A permanent employee may donate up to 120 hours of accrued paid leave hours (sick leave, overtime, holiday, administrative leave, conip time, vacation), in a calendar year. to a City employee(s), when an employee or the employees family member has suffered a catastrophicillness or injury.
II. ELIGIBILITY
A. The Personnel Officer must deteniine that the RECIPIENT:
is unable to work;
2. has exhausted all applicable accrued paid leave hours;
3. has provided sufficient documentation of need for himselllhcrsel F, or immediate family member;
4. has mci the requircmcnts outlined by the IRS and FLSA; I receives no more than S weeks in accrued paid leave hours for any one catastrophicillness or injury; and
6. has complcrecl a Requcst for Catastrophic Leave’ form. (Form fbiihcomiiig, B. A Personnel Officer must determine that the DONOR:
I . will donate no more than 1 20 3O hours in total donations in a calendar year;
2. is donating in whole—hour increments: and
3. has completed a “Donation for Catastrophic Leave’’ fonu; and (Fwinfbttliconiing)
4. will not drop below 192 hours in their own bank.
Notes:
• Once donated, hours cannot be returned to the donor.
• Donations are exchanged For an hour-for-hour basis regardless of pay rate.• Donor participation will he confidential.• Donations are made to individuals in need of’ leave. There is no generic bank. • An employee that has applied to receive Worker’s Compensation benefits is not eligible to apply for Catastrophic Leave.
• All requests for Catastrophic Leave must he approved by the City Manager and Finance Director.
GRIEVANCE PROCEDURE
A grievance shall be any matter for which appeal is not otherwise provided or prohibited. concerning:
I. A dispute abmit the interpretation or application of this MOU and Personnel Rules and Regulations;
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INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU A. Informal Grievance Procedure:
An employee who has a problem or complaint should first try to get it settledthrough discussion with his immediate supervisor without undue delay — within one or two workdays of the event grieved. If, after this discussion, he/she does notbelieve the problem has been satisfactorily resolved, he/she shall have the right topromptly discuss it with the supervisor’s immediate superior, if any, in the administrative service, Every effort should be made without delay to find anacceptable solution by informal means at the lowest possible level of supervision.
If the employee, or the Union. is not in agreement with the decision reached by discussion, he/she shall then have the right to file a formal grievance in writingwithin ten (10) calendar days after receiving the informal decision of his/hersupervisor or the supervisor’s immediate superior on matters within the statutoryscope of representations.
B. Formal Grievance Procedure:
I. First level of Review: A grievance shall be presented in writing to the employee’s immediate supervisor within ten (10) calendar days of the informal process decision or of the event giving rise to the grievance, whichever is later. The supervisor shall render lis’her decision and comments in writing and return them to the employee within ten (10) calendar days after receiving the grievance. In the event that the supervisor does not render a decision within thc 10 days or within a mutually agreed upon extension of the timeline, the employee has the right to move the grievance up to the next levelof review.
2. Further Level or Levels of Review as Appropriate: The supervisors immediate superior receiving the grievance shall review it, render his/her decision andcomments in writing, and return them to the employee within ten (10)calendar days afier receiving the appeal. In the event that the supervisor doesnot render a decision within the 10 days or within a mutually agreed uponextension of the timeline. the employee has the right to move the grievance upto the next level of review.
3. Department Review: The Department I-lead receiving the grievance, or his/her designated representative, should discuss the grievance with the employee, hisrepresentative, if any, and with other appropriate persons. The Department 1-lead shall render his/her decision and comments in writing, and return them to the employee within ten (10) calendar days after receiving the appeal. If theemployee, or the union, does not agree with the decision reached, or if noanswer has been received within ten (10) calendar days, he may present theappeal in writing to the City Manager. Failure of the employee to take furtheraction within twenty (20) days after receipt of the decision, or within a total oftwenty (20) days if no decisions is rendered, will constitute withdrawal of thegrievance.
4. City Manager: The City Manager or his/her designee should discuss the grievance with the employee, his/her representative, if any, and with otherappropriate persons. The City Manager may designate an “investigationcommittee,” or an officer not in the normal line of supervision, to advise him/her concerning the grievance. The appointing power shall render a 20 .
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INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU decision in writing to the employee within twenty (20) day’s after receiving the grievance.
C. Grievance Arbitration:
I. Within ten (10) working days of the receipt of the City Manager’s final decision, the Union may request arbitration by filing a written request. The request for arbitration shall be in writing to the Department I-lead with a copy sent to the Personnel Officer.
2. If either the City or the Union so requests, the arbitrator shall hear the merits of any issue raised regarding the arbitrahility of a grievance first. No hearing on the merits of the grievance shall be conducted until the issue of arbitrability has been decided.
3. The parties shall request a list of five (5) arbitrators, within ten (10) working days after receipt of the employee’s request for arhttrntton, from the California State Mediation and Conciliation Service.
4. Within tive (5) working days of receipt of the list, the parties shall mutually agree upon the person on the list who shall he the Arbitrator- If one person is not mutually agreed upon, the parties shall within live (5) days afler receipt of the list of names alternately strike names from such list with the last remaining name to be the person serving as Arbitrator. The patty having first choice to strike a name from the list shall he detennined bx lot.
5. The City and the Union shall share the fees and expenses of the arbitrator and the certified court reporter equally. The services of the certified court reporter are optional. Both parties must agree if the certified court reporter is to be employed and that the cost shall be equally shared. Financial responsibility shall he established before the selection of an arbitrator. All other expenses shall be borne by ihe party incurring them, and neither party shall be responsible for the expense of witnesses called by the other. However, if either party declines the use of a court reporter, the party requesting the court reporter shall pay the entire cost of employing the court reporter. 6. The arbitrator’s review is lrmited to the interpretation of this MOU and/or City’s Personnel Rules and Regulations.
7. Decision: The decision of the arbitrator shall be made in writing within thirty (30) working clays of the close of the hearing or the submission of written briefs. The decision of the arbitrator shall he final.
D. Conduct of Grievance Procedure:
I. The time limits specified above may be extended to a definite date by mutual agreement of the employee and the reviewer concerned. If an employee receives no response at a particular level, he/she may proceed to the next appropriate level of review.
2. The employee may request the assistance of another person of his/her own choosing in preparing and presenting his grievance at any level of review, 3. The employee and his representative may be privileged to use a reasonable amount of work time as detennined by the appropriate Department Head in conferring about presenting the grievance.
4. Employees shall be assured freedom from reprisal for using the grievance procedure. 21 INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU SALARY
Firefighter employees that have been employed full-time at the City of Avalon for a minimum of six months, or successfully completed the probationary period as described in the Rules and Regulations, are eligible to begin the process of pursuing the education and expertise to be qualified as Fire Engineers. Upon successful completion of the required coursework orcertification to perform the duties of a Fire Engineer, and upon verification and authorization of the Fire Chief, an eligible Firefighter employee will receive a one-time, single, step increase.
Employees shall he compensated in accordance to the Wage Schedule attached hereto andincorporated herein as Exhibit A.
Any Employee that is cunently in Steps shall be advanced to the next Step as of the first full pay period commencing after the ratification of this MOU. All subsequent Step advancements shall occur annually beginning with the first hill pay period on or after July I, 2023 and each full payperiod on or after July [thereafter.
Newly hired/promoted employees shall be eligible to receive 50% of their next Step increase upon the completion of their one year probation and shall receke the balance of the Step increaseat the first lull pay period on or after July I and each year thereafter.
PA H ITY
Parity as it relates to cost of living increases and liealthcare benefits shall remain the same between the [AFF, Al-lEA and AMEA,
DUES DEDUCTIONS
Upon receipt of a lawfully executed written authorization from an employee, the City agrees to deduct the current regular Union dues each payroll period and remit such deductions once eachpayroll period to the dully elected treasurer of the Association within seven (7) working days following the end of the payroll period. The Association will notify the City, in writing, ten (10) working days prior to any change in the regular Union dues structure, The City is expressly prohibited from any involvement in the collection of fines, or penalties and shall not honor any request of this nature other than for Union dues. Deduction of dues will be made by [lie City when other payroll deductions are made and will begin with the pay for the first full pay period following receipt of the authorization by the Association.Any employee, upon ten (10) working days’ notice to the City and the Association, may revoke his/her dues deduction and shall submit such revocation form to the City’s payroll division.
The City and the Association agree to provide Dues Deductions Authorization forms and Notice to Stop Dues Deduction forms to its members.
The Association agrees to indemnify and hold the City harmless against any and all claims, sutts, 22 .
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 2295 MOU orders and judoinents brought and issued against the City as a result of any action taken or not taken by the City on account oF payroll deduction of Union dues.
Date:
JAFF Representatives
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(Chrissian Cisneros
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23 EXHIBIT A
City of Avalon
Master Classification and Salary Schedule
Safety - Fire (14FF)
Effective July
r
1,2022
Fire Captain NE F29 Hourly 30.16 31,67 33.25 3491 36.66 38.49 40.42 42.44 Si-weekly 3,197 3,357 3,524 3.701 3,886 4,080 4,284 4,498 Monthly 6,926 7,273 7,536 8.018 8,419 8,840 9,282 9,746 Annual 83,117 87,273 91,636 95,218 101.029 106,080 111,384 116,954 ‘4’i .,_,77‘‘- 77;:7rq .....>, .,4.,.,’%’ ..,, ,,, ‘4, %,_ - -,‘ .,,.:,.-,-“:
Fire Engineer NE F27 Hourly 28.71 30.14 ‘ 31.65 33.23 34.89 35.59 36.30 37.03 Si-weekly 3,043 3,195 3,355 3,522 3,698 3,772 3.848 3,925 Monlhly 6,593 6,922 7,268 7,632 8,013 8,174 8,337 8,504 Annual 79,112 83,067 87,221 91,582 96,161 98,084 100,046 102,047 lt
‘ r7’ ‘
/ I ‘
: ,: m r’ ‘t :i ;: “,q
Firefighter NE Fig Hourly 23.56 24.74 2597 27,27 28.64 29.21 2979 30.39 Si-weekly 2,497 2.622 2,753 2.891 3,036 3.096 3,158 3,221 Monlhly 5.411 5,581 5,966 6,264 6,577 6.709 6,843 6.980 Annual 64.931 68,177 71,586 75,165 78,924 80,502 82.112 83,754 ‘r;”.i .‘2’:Wr7:.1’ti P71 c’$’3 i’t’::, ,, c ‘U ‘i “ ,. , , . ,_ t’ r - Reserve Firefighter Captain EMT NE N/A
Si-weekly
Hourly
138
Monthly 300
Annuai 3,500
a Lt,-_ )2 -,t ‘C’ ‘ — ‘ ‘ -“
“ I,,,4,) j ‘,.-i — Reserve Fire Captain NE N/A Hourly
• Si-weekly 127
Monthly 275
Annual 3,3CC - ---
—,-z -
-
-
Reserve Fire Engineer EMT NE N/A
Si-weekly
Houiiy
127
Monthly 275
Annual 3.300
1j.,, -.! ,
. ,,
-,
Reserve Fire Engineer NE N/A
B-i-weekly
Hourly
115
Monthly 250
EXHIBIT A
Annual 3.000 -
- 3r “ :
Lç ‘W r —— —
Reserve Ffref.ghter ENIT NE N/A
Bi-week!y
Hourly
I 15
Monthly 250
Annual 3,000
--
,.
Reserve Firefighter NE N/A
Bi-weekly
Hourly
104
Monthly 225
Annual 2.700
Employees shall, upon completion often (10) or more years continuous and uninterrupted service be eligible for longevity pay on an employees anniversa date as follows: 10 years thru l4years 5%; 15 years thru l9years = 10%; 20 years and above = 15%. New employees hired beginningiuly 1,2015 shall not be eligible to receive greatherthan 10% longevity pay during their employment with the City,
Newly hired/promoted employees shall be eligibleto receive 50% of their next Step increase upon the completion of their one year probation and shall receive the balance of the Step Increase at the first full pay period on or after July 1 arid each year thereafter.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES ) 55.
CITY OF AVALON
I, GABRIELLE MORONES, DEPUTY CITY CLERK OF THE CITY OF
AVALON, do hereby certify that the foregoing is a true and correct copy of Resolution No. 22-25 and was duly passed, approved, and adopted by the Avalon City Council at the regular meeting of May 3, 2022 by the following vote:
Ayes: Mayor Marshall, Councilmembers De La Rosa, Lavelle, MacGugan-Cassidy and Ponce.
Noes: NoneAbsent: NoneAbstain: None
and that the same has not been amended nor repealed.Dated this 16th day of May, 2022.
Gabrielle Morones, Deputy City Clerk
City of Avalon, California
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CITY OF AVALON CITY COUNCIL
MEETING DATE: August 15, 2023 AGENDA ITEM:
ORIGINATING DEP: Administration CITY MANAGER: *AJA%
PREPARED BY: David Maistros, City Manager
SUBJECT: Transient Rental License Discussion
RECOMMENDED ACTION(S): Discuss the Staff proposal for analyzing transient rentalissues. Provide direction to Staff.
REPORT SUMMARY: On August 1, 2023, the City Council voted unanimously to establish, by urgency ordinance, a moratorium on the issuance of Transient Rental Licenses for transient rental use to new applicants for a 45-day period. The 45-day period expires on September 14,2023.
The moratorium was established to allow City Council, Planning Commission, City Staff and the City Attorney time to study appropriate regulations to maintain public safety and health of the community. Additionally, the moratorium will temporarily halt further issuance of TRLs sothat the City can identify regulations which ensure that issuance of TRLs does not underminethe City’s goals to have affordable housing stock and maintain a safe community.
City Staff propose a series of three stakeholder/community meetings to discuss specific issuesregarding transient rentals:
- Tuesday, September 22 at 5 p.m. — Meeting to discuss quality of life issues, specifically noise, trash, and other community impacts.
- Wednesday, September 30 at 5 p.m. — Meeting to discuss financial benefits and impacts, sustainability and housing impacts.
- Saturday, date and time TBD — Meeting to summarize current findings and discussion of regulatory processes.
In addition, to the proposed stakeholder/community meetings, City Staff are developing a community survey. A preliminary draft of the survey is included with this report. The stakeholder/community meetings will help Staff refine survey questions. Staff anticipatecirculating the survey for a 30-day period, not to coincide with the already scheduled Community-Wide Survey.
Currently, the City is addressing all factors that negatively impact long term housing stock, with an emphasis on affordable housing, and has received complaints from property owners of the negative impacts that result from living in close proximity to property that has been granted either a CUP or TRL for transient rental uses. Specifically, the City has received numerous complaints in the form of public comment about noise impacts, traffic impacts! and safety impacts to residents relating to issuance of CUPs and TRLs.
FISCAL IMPACTS: None.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: The City’s existing rules for the granting of transient occupancy licenses will remain in place.
ADVERTISING, NOTICE AND PUBLIC CONTACT:
Pursuant to the Brown Act.
ATTACHMENTS:
1. Drafted survey questions
Transient Rental Survey Questions
1. Which of the following describe you (Select all that apply)? - Full-time Avalon Resident
- Seasonal Avalori Resident- Regular Annual Visitor
- Occasional Visitor (Visits once every 1-3 years)- RenterinAvalon - Short-term Rental Host
- Affordable Housing Provider
- Realtor- Business Owner
- Homeowner- Avalon Property Investor- Employed full-time at Avalon-based business - Employed full-time as a remote worker
- Employed part-time at Avalon-based business- Employed part- time as a remote worker - Retired
2. What is your general opinion of vacation rentals (Transient Rentals) in Avalon? - Very Favorable- Somewhat favorable
- Neutral- Somewhat unfavorable
- Very unfavorable
- No opinion
3. Over the lastS years, do you believe the number of active Transient Rental Licenses have:
- Increased
- Stayed the same- Decreased
- I don’t know
4. Please rank the following list of topics by importance of what should be considered before imposing future Transient Rental regulations:- Transient Rental Economic Benefit to the City - Safety and Environmental Impact- Quality of Life for Neighboring Properties - Impacts on Affordable Housing- Complaints and Enforcement - General Over-Use of Property
- Saturation Standards
5. Please rank what you feel are most important to regulate for Transient Rental operations:
- Number of rental units on an individual property
- Number of rental units owned by an individual(s)/resident - Locations of where transient rentals are allowed or limited- 24/7 Point of Contact for Emergencies and/or Complaints - Occupancy Limits- Signage
- Minimum or Maximum Night Usage
- Noise
6. How would you like to see the City handle short-term rentals in Avalon? (Select all that apply) - Set a cap for a maximum number of overall transient rentals - Determine saturation limits (by P of units or % of units) in each neighborhood- Revoke inactive short term rentals or CUPs - Increase Transient Rental License fees to fund enforcement and/or workforce housing fund - Require Property Managers to review rules and regulations with renters in person- More strictly enforce regulations regarding operations of Transient Rental Licenses - Establish clear penalties for noncompliance with Transient Rental License regulations- Take no action - Other
7. What do you believe are the top three concerns regarding Transient Rentals? (Select no more than three)- Excessive Noise Issues
- Lack of Enforcement of Regulations- Lack of Regulations - Effects on Affordable Housing
- Property Value Increase- Operation of Illegal Rental Units - Too Many/Saturation- Impact on City Services (trash, water, safety services, etc.)
8. Which of the following issues related to transient rentals have you personally experienced in Avalon? (Select all that apply)
- Excessive Noise- Excessive Trash
- Vehicle Issues — ie. Parking Issues, Congestion, Illegal Use- Increased Traffic- Illegal Rental Units - Health and Safety Concerns
- Overuse of Property- Lack of Responsiveness by Property Manager - Over Occupancy of Unit- I have not experienced any of these issues - Other (please specify)
CITY OF AVALON CITY COUNCIL
MEETING DATE: August 15, 2023 AGENDA ITEM:
ORIGINATING DEP: City Attorney CITY MANAGER: 4\4k.
PREPARED BY: Scott Campbell, City Attorney
SUBJECT: Presentation and Discussion on Landlord Tenant Regulatory OptionsRECOMMENDED ACTION(S): Consider existing landlord tenant regulations under state law, as well as City options for creating additional regulations, and direct Staff to prepare a tenantlandlord ordinance for future consideration if the Council deems it appropriate.REPORT SUMMARY: State law provides certain landlord tenant regulations throughout the state, but cities may enact additional regulations if they so choose. The report summarizescurrent state regulations and discussions other regulations cities have enacted.California’s Tenant ProtectionsCalifornia’s Tenant Protection Act of 2019 (“TPA”) prevents a landlord from evicting tenants without “just cause.” Just cause may be ‘at-fault” or “no-fault.” At-fault just cause allows the landlord to evict and provide little to no assistance. But no-fault just cause requires the landlord to provide assistance to the evicted renter (even though the landlord still gets to evict).’At-fault “At-fault” just causes include: default in payment of rent, breach of a material term, nuisance, waste, refusal to sign a new lease, criminal activity, unauthorized assignment or subletting, refusing entry to landlord, using the property for an unlawful purpose, and termination of employment if employee housing.No-fault“No-fault” just causes include: use of the unit by the owner’s family; withdrawal of the unit from the rental market; a court or other government order to vacate the property; and “intent todemolish or to substantially remodel” the unit. With no-fault just cause, the landlord must pay relocation assistance equal to one month rent, regardless of tenant income.Exemptions The TPA does not apply to a short-term rental or hotel; housing for a nonprofit hospital, religiousfacility, or various care facilities; school dorms; owner-occupied housing (sharing kitchen or bathroom with owner); single-family owner-occupied residences; an owner-occupied duplex;housing built within the last 15 years (except for mobile homes); housing that is separately1 Temporary Rent Control. The TPA also created statewide rent control, capping annual rent increases at fivepercent plus CPI (10 percent max) — but the only until 2023, so it is largely moot now. 65059.00000\4 1539243.1
alienable’ (i.e., that can be sold separately from the land, like mobile homes) if the owner is not a corporation; or deed- or covenant-restricted affordable housing.Floor, not ceiling.
The TPA sets the floor for new tenant protections; it does not prevent a city from adopting additional protections.
The TPA does not apply to properties that are subject to a local ordinance that requires just cause for termination if the local ordinance was adopted before September 2019. (I.e., if the ocalordinance predates September 2019 and it has a just-cause requirement, it prevails over the TPA even if the TPA is more strict.)
Nor does the TPA apply to properties that are subject to a newer local ordinance (postSeptember 2019)— as long as the ordinance is at least as protective as the TPA Summarizing the TPA
The statewide IPA provides some benefits (one-month’s rent for relocation) in some situations (specific enumerated no-fault evictions). It does not prevent eviction. It allows eviction for a majorremodel. And it doesn’t apply to several types of housing.
Avalon has no local tenant-protection ordinance, so any ordinance that it might adopt must be at least as protective as the TPA.
Options for Additional Local Protections
Many California cities adopt local regulations to provide additional protections for renters. These additional protections tend to be the following:
• Eliminating or narrowing certain just causes (e.g., not allowing “major remodel” as a nofault just cause). • Increasing relocation assistance (e.g., three or four months’ worth of rent).• Expanding the protections to other types of dwellings (e.g., eliminating exemption for newer homes).
• Imposing rent control.• Create rent registry and rent-control board to consider exceptions to rent-control restrictions.
Require minimum lease periods (e.g., one-year mm initially).
The Council may consider these and other options for providing additional tenant protections as long as they are at least as protective as the TPA.
FISCAL IMPACTS: None.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: Only those tenant protections that are imposed by state and county laws and regulations will apply.
ADVERTISING, NOTICE AND PUBLIC CONTACT: Pursuant to the Brown Act.
ATTACHMENTS: None
65059.00000W 1539243.1