MEMORANDUM OF UNDERSTANDING
THIS MEMORANDUM OF UNDERSTANDING (“MOU”) is entered into this 22nd day of June 2021 (“Effective Date”), between the Stagecoach Days Association, a California non-profit 501(c)(3) corporation (the “ASSOCIATION”) and the City of Banning, a California municipal corporation (the “CITY”), to memorialize the agreement of the parties concerning their ongoing relationship for the purpose of conducting the Banning Stagecoach Days Event (“Stagecoach Days”).
Recitals
WHEREAS, since 2010, the ASSOCIATION has organized, promoted, and conducted Stagecoach Days as an annual event and community celebration.
WHEREAS, the CITY and the ASSOCIATION desire to work in cooperation and partnership with each other to annually produce Stagecoach Days; WHEREAS, the CITY seeks to continue support Stagecoach Days at a level that is consistent with recent years; and
WHEREAS, the ASSOCIATION and the CITY desire to enter into this MOU to delineate the parties’ respective rights and obligations and define their relationship for Stagecoach Days.
Agreement
NOW THEREFORE, for these reasons, and in consideration of the conditions, covenants, and agreements set forth below, the ASSOCIATION and the CITY agree as follows:
1. RELATIONSHIP BETWEEN THE PARTIES
The parties agree that the relationship of the parties is between two separate and independent entities. There is not a joint venture, partnership, employeremployee relationship or any principal-agent relationship.
2. EXCLUSIVITY
The ASSOCIATION shall have exclusive operational and vending control over and within the geographic area and locations at which Stagecoach Days events will be conducted, as such geographic area and locations are defined in the event application and permits relating hereto. The CITY shall not (a) authorize or permit any other person or entity to conduct any other community event, or (b) grant any other person or entity a transient merchant license to conduct any type of business, within Dysart Park during the time period of two weeks before, two weeks after, and during Stagecoach Days, which begins the Friday after Labor Day and ends two (2) days later.
DocuSign Envelope ID: C452AAA4-39FE-474B-A2FF-725F3361DB4A 872
3. ELEMENTS OF ANNUAL EVENT
The ASSOCIATION will organize, promote, and conduct the annual, threeday Stagecoach Days event and the annual Stagecoach Days Parade. The three-day event, depending upon budget, will consist of a minimum of two (2) Professional Rodeo Cowboy Association (PRCA) Pro Rodeo events, multiple food, souvenir, and craft vendors, live music performances, and either a carnival or a “Kid’s Zone” with mutually agreed upon activities and attractions that are geared towards family entertainment.
The parade will be held on Ramsey Street, between San Gorgonio Avenue and 12th Street the Saturday morning of the three-day event and the ASSOCIATION will strive to have a minimum of forty (40) parade entries, including at least two (2) marching bands.
4. SECURITY FOR THE BANNING STAGECOACH DAYS EVENT
The ASSOCIATION shall be responsible for providing private security, as may be required, and which security is to be provided by guards that are licensed by the Bureau of Security and Investigative Services.
The CITY will provide police officers and volunteers at the three-day event and the parade as deemed appropriate by the Chief of Police, or his/her designee. The ASSOCIATION will not be charged for officers. However, the cost associated with police officers that are provided solely for Stagecoach Days and associated events will be charged against the total in-kind service donation of Ten Thousand Dollars ($10,000.00) discussed in Section 5 below.
5. IN-KIND SERVICES FOR BANNING STAGECOACH DAYS
Aside from the public-safety services outlined above, the CITY agrees to provide in-kind services to the ASSOCIATION commensurate with previous participation in the Stagecoach Days. The CITY’s in-kind contribution will be understood to include additional services and items required specifically for the Stagecoach Days, which the CITY would not provide in the absence of said event. Such in-kind services may include, but are not limited to:
• Additional street sweeping;
• Additional trash removal;
• Placement and removal of barricades upon streets and public parking lots for various events and posting of “No Parking” signs as needed; • Staff to assist with entry gates, parking and ticket booths; and DocuSign Envelope ID: C452AAA4-39FE-474B-A2FF-725F3361DB4A 873
• Other similar services that the CITY has provided to the ASSOCIATION for the production of the annual event.
The CITY will also designate the Parks and Recreation Director, or his/her designee, to facilitate and coordinate the ASSOCIATION’s requests for inkind services and to manage the Stagecoach Days community event application process to facilitate timely approvals.
The CITY shall facilitate the necessary multi-departmental meetings with representatives of the ASSOCIATION to outline the in-kind services requested by the ASSOCIATION and those deemed necessary by the CITY in preparation and execution of the annual event.
No later than sixty (60) days prior to the Stagecoach Days event, the ASSOCIATION will provide detailed plans and information outlining the need for in-kind services and equipment (except as otherwise noted for specific items covered in this MOU). This information shall include any plans, information, and applications for new associated events that may necessitate additional in-kind CITY services, equipment, staff, or other in-kind contribution.
No later than forty-five (45) days prior to Stagecoach Days, the CITY will estimate the value of the CITY’s in-kind contribution by utilizing the salary costs associated with CITY staff, equipment costs, the rental value of items and facilities that will be used and any additional actual costs incurred by the CITY. The CITY will ensure the requested in-kind services and equipment align with prior-years’ in-kind contributions, which are capped at, and will remain capped at Ten Thousand Dollars ($10,000.00) annually.
6. CITY SPONSORSHIP
In addition to the in-kind services outlined in Section 5 above, subject to the sufficiency of annual appropriations properly budgeted and available for such purposes, the CITY will provide the ASSOCIATION with a Twelve Thousand Five Hundred Dollar($12,500) in cash sponsorship for Stagecoach Days, will rent bleachers for the event in an amount not to exceed Eighteen Thousand Dollars ($18,000), and will provide necessary event insurance. In exchange, the ASSOCIATION shall include the CITY as a sponsor, providing the CITY with sponsor promotion, recognition, and all other benefits commensurate with its level of support.
7. APPLICATION PROCESS
DocuSign Envelope ID: C452AAA4-39FE-474B-A2FF-725F3361DB4A 874
Annually the ASSOCIATION agrees to provide to the CITY a report that includes essential details of the Stagecoach Days event in a format approved by CITY staff. Such a report will be deemed sufficient for properly processing a Special Event Application. All additional applicable licenses required by the CITY must be completed and submitted with the Special Event Application.
All proposed activities must be submitted by the ASSOCIATION for approval by the CITY no later than forty-five (45) days prior to the first day of the event.
8. INDEMNIFICATION
To the fullest extent permitted by law, each party agrees to indemnify and hold harmless the other party, its governing board or body, officers, agents, and employees against any and all claims, damages, liabilities, injury expenses, demands, causes of actions, and judgments, including court costs and attorneys’ fees, arising out of or resulting from the performance of this MOU and attributable to the other party’s negligence or intentional acts of its officers, agents, or employees. Following a determination of the percentage of fault or liability by agreement between the parties or a court of competent jurisdiction, the party responsible for liability to the other will indemnify the other party to this MOU for the percentage of liability determined.
The parties agree this provision shall survive the expiration or termination of this MOU.
9. COMPLETE AGREEMENT
The parties agree that this MOU constitutes the entire agreement of the parties and that no prior agreement or representation, written or oral, shall be binding or of any force or effect. Further, this MOU may not be amended, modified, altered, or enlarged except in writing signed by the duly authorized representatives of the parties hereto.
10.AGREEMENT BINDING
The parties agree that this MOU shall be binding upon the successors and legal representatives of the parties hereto. Neither party shall assign this MOU or any of their respective rights, obligations, or interest in it.
11.TERM
The term of this MOU will be for three (3) years from the Effective Date, with a two-year automatic extension, unless a party gives written notice to the other party, not less than sixty (60) days prior to such anniversary date, that the DocuSign Envelope ID: C452AAA4-39FE-474B-A2FF-725F3361DB4A 875
term of the MOU shall not be extended. Such notice shall be given as provided for by Section 12 below. The CITY’s obligations in the second year of the term and any subsequent year(s) shall be subject to the sufficiency of annual appropriations properly budgeted and available for such purposes.
12.NOTICES
All notices with respect to this MOU shall be given by first class mail or handdelivery to the parties as follows:
CITY: ASSOCIATION:
City of Banning Stagecoach Days Association
Attn: City Manager Amy Pippenger
99 E. Ramsey Street P.O. Box 604
Banning, CA 92220 Banning, CA 92220
13.SEVERABILITY
If any term, provision, covenant, or condition of this MOU is ruled invalid, void, or unenforceable by a court of competent jurisdiction, this MOU will nonetheless remain in full force and effect as to all remaining terms, provisions, covenants, and conditions.
[SIGNATURE PAGE FOLLOWS]
DocuSign Envelope ID: C452AAA4-39FE-474B-A2FF-725F3361DB4A 876
IN WITNESS HEREOF, the duly authorized representatives of the parties are signing this MOU on the date set forth in the introductory clause.
CITY OF BANNING STAGECOACH DAYS ASSOCIATION
Doug Schulze,City Manager Amy Pippenger, Chairperson
ATTEST:
Caroline Patton, Deputy City Clerk Tayler Berghoefer, Secretary APPROVED AS TO FORM: [Pursuant to California Corporations Code Section 313, both signature lines
must be executed unless the signatory
holds at least one of the offices
designated on each line.] Kevin Ennis, City Attorney
DocuSign Envelope ID: C452AAA4-39FE-474B-A2FF-725F3361DB4A 6/22/2021
7/8/2021
7/8/2021
7/27/2021
7/27/2021
877
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Doug Schulze, City Manager
MEETING DATE: December 12, 2023
SUBJECT: Animal Services Discussion: Banning Animal Shelter and ARE Animal Rescue Contract
RECOMMENDATION:
Provide direction to City Manager regarding Banning Animal Shelter and ARE Animal Rescue Contract for shelter services.
BACKGROUND:
The City of Banning and ARE Animal Rescue entered into an Agreement for animal shelter services in April 2021. The Agreement identifies the specific purpose of the agreement is for ARE Animal Rescue to coordinate the fostering, care, and adoption of abandoned animals as an alternative to euthanasia. ARE Animal Rescue is responsible for providing a broad range of animal care and shelter activities for the purpose of safeguarding the health and safety of domestic and wild animals in the City, operating the City’s animal shelter, promoting the humane treatment of animals, and for enforcing City ordinances relating to animal control.
The contract term is five years (7/1/2021 to 6/30/2026), unless terminated sooner according to the termination process established in the contract. The termination notice required by the contract requires written notice of ninety (90) days by either party. More importantly, termination of the agreement would require a replacement option to provide services beginning on the effective date of termination.
Specific services to be provided by ARE, including:
1) Animal Shelter, which includes impound, care for, quarantine and disposal of domestic, wild and vicious animals, as well as, adoption and redemption services. A holding period of three (3) days is required for all stray animals (except acutely injured or diseased animals) and a period of at least ten (10) days for all licensed dogs. ARE is also required to provide animal adoption and redemption services for animals at the City’s Animal Shelter during normal business hours except when volunteers are not available. ARE is in compliance with these requirements. 2) Euthanasia Services. ARE is required to provide humane euthanasia of acutely sick, injured animals and dangerous animals. Euthanasia shall be accomplished in a humane manner by injection of a painless, fast-acting drug and performed by a certified staff member. ARE is in compliance with these requirements.
3) Dog Licenses. ARE is required to provide licensing information in all adoption packets and to pet owner’s recovering impounded pets that are not licensed. Pet licensing is the responsibility of the City.
ARE is in compliance with this requirement.
4) Maintenance. ARE shall maintain the shelter to be in a clean and sanitary condition at all times, consistent with generally applicable standards for similar facilities in Riverside County. ARE shall also secure the facility from unauthorized entry. ARE is in compliance with this requirement. 878
5) Spay/Neuter Deposits. ARE is responsible for collecting a spay/neuter deposit for every dog and cat adopted from the City’s Animal Shelter. Deposits are held by ARE and reimbursed directly to those who obtain valid releases within the allotted time. Upon forfeiture, such deposits shall become the property of ARE and shall be used for their prescribed purposes described in the Food and Agriculture Code. ARE is in compliance with this requirement. Animals are spayed/neutered before they are offered for adoption.
6) Educational Material and Programs. ARE shall provide animal care and other information, literature and programs at a nominal fee to the general public, and upon request of City service clubs and other organizations, for a nominal fee not to exceed one hundred dollars ($100.00). ARE is in compliance with this requirement.
7) Veterinary Services. ARE shall utilize licensed veterinary services for the care of impounded injured and sick animals. ARE is in compliance with this requirement. 8) Tone of Service and Resolution of Service Complaints. ARE shall provide service to the public on matters covered in this contract consistent with established policies and procedures in the industry so as to promote courteous and efficient service and good public relations. ARE shall cooperate with City to resolve any and all complaints filed with ARE or City pertaining to services provided or to be provided under this contract. ARE shall maintain and provide a record of complaints. ARE has been cooperative with City in efforts to resolve complaints. The City has received complaints regarding discourteous interactions with members of the public.
9) Missing Animals. ARE shall file a report with the Banning Police Department or the Riverside County Sheriff’s Department within twenty-four (24) hours if an impound animal in the custody of ARE at the animal shelter is missing or suspected to have been stolen. ARE is in compliance with this requirement.
10) Shelter Standards. ARE shall operate the City’s Animal Shelter in conformance with American Humane Association Standards. ARE is in compliance with this requirement for kennels within the physical shelter buildings. However, overflow areas do not meet shelter standards due to placement on dirt and deteriorated asphalt concrete. These areas cannot be properly cleaned or disinfected, which can lead to illness or diseases. Inspection report attached. 11) Compliance with City’s Animal Code. ARE shall provide its services and operate the City’s Animal Shelter consistent with the City’s Animal Code (Chapter 6.04 of Banning Municipal Code). ARE is in compliance with this requirement.
12) Records.
a. ARE shall maintain and keep records of all expenditures and obligations incurred pursuant to this contract and all income and fees received thereby according to generally recognized accounting principles on a daily, weekly and monthly basis. Such records shall be maintained by ARE for a minimum of three (3) years. ARE is in compliance with requirement. b. ARE shall maintain and keep records of all licenses issued, impounds made, animals spayed, neutered, treated for illness, adopted and all other actions taken with respect to the disposition of the animals. ARE is in compliance with requirement.
c. ARE shall make all records maintained under this section available to authorized City personnel during normal business hours upon reasonable notice. ARE is in compliance with requirement. d. ARE shall maintain a record of all written complaints received by ARE, from whatever source regarding the City’s animal control operations. Such records shall be provided to the City each month in a form to be agreed upon by the City and ARE.
e. A record of all donations made to ARE from whatever source or resources for the purpose set forth in this contract shall be provided to the City of Banning on a monthly basis and upon the termination of the contract.
13) Audit and Inspection. ARE shall annually provide to the City on the anniversary of this Contract a standard financial audit of its operations. The cost of such standard audit will be borne by ARE. ARE has not provided an annual audit. Non-compliant.
14) Insurance. ARE shall procure and at all times during the term of this Contract carry, maintain, and keep in full force and effect, insurance as follows:
a. Commercial General Liability Insurance with a minimum limit of $1,000,000 per occurrence and a general aggregate limit of $2,000,000 per project or location. ARE is in compliance with requirement. 879
b. Automobile Liability Insurance with a combined single limit of $1,000,000 per accident for bodily injury per accident for bodily injury and property damage. ARE is in compliance with requirement. c. Worker’s Compensation Insurance as required by the State of California and Employer’s Liability Insurance with a minimum limit of $1,000,000 per accident for bodily injury or disease. ARE is in compliance with requirement.
On October 23, 2023, an inspection of the Banning Animal Shelter was performed by City Manager Doug Schulze, Assistant City Manager Laurie Sampson and Communications Manager Anthony Riley. The inspection was conducted using the Animal Shelter Inspection Form published by People for the Ethical Treatment of Animals (PETA). As a result of the inspection, the animal shelter and ARE Animal Rescue operation of the shelter is deemed to be in compliance with standards published on the PETA Inspection form. Overflow kennels are substandard and it should be a priority of ARE Animal Rescue and the City of Banning to address this matter. However, NO animals were found to be sick or diseased.
The primary area of concern is the lack of appropriate kennel space for impounded dogs. It should be noted that ARE Animal Rescue is not responsible for providing shelter kennel capacity. Kennel space demand is a direct result of animal control effectiveness, dog owner surrenders (local), and after-hours drop off of animals outside locked gate. In addition, animal control has impounded numerous confiscated animals that must be retained pending court action. This includes several dangerous dogs that would typically be euthanized.
JUSTIFICATION:
City Council has requested an update and discussion of the contract with ARE Animal Rescue for shelter services.
FISCAL IMPACT:
The Animal Shelter contract between the City of Banning and ARE Animal Rescue established compensation based on Riverside County Animal Control statistics during the last three years of the contract between the City of Banning and Riverside County Animal Control. The actual number of dogs and cats impounded annually by City of Banning Animal Control is substantially greater than estimated.
ALTERNATIVES:
1. Continue relationship with ARE Animal Rescue under existing contract:
a. Direct City Manager to identify options to increase kennel space. b. Direct City Manager to identify options to reduce impounded dogs.
2. Provide ninety (90) day notice of termination to ARE Animal Rescue:
a. Direct City Manager to prepare and publish RFP for shelter operation. b. Direct City Manager to recruit and fill City staff positions to operate shelter. c. Direct City Manager to negotiate contract with Riverside County for shelter services.
3. Take no action.
ATTACHMENTS:
1. Att 4. Statistics Reports 2022-2023.pdf
2. Att 5. ARE Animal Rescue COI.pdf
3. Att 1. Contract with ARE Animal Rescue.pdf
4. Att 2. Inspection Report 102023_0001.pdf
5. Att 3. 2022-23 ARE Financials.pdf
880
Banning Animal Shelter Report
Start Date: 01/01/2022 End Date: 01/31/2022
Cat .
SPECIES
Abandoned 2 Adoption 139
Animal Control Pickup 23 Died 9
Born in Care 8 2
Owner/Guardian Surrender 21 Service Out 4
Return 8
Service In 5
Stray - Private Person 16
Total Intakes Total Outcomes
83 154
Return to Owner/
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
19.3%
Service In
6.0%
Return
9.6%
Owner/Guardian Sur…
25.3%
Abandoned
2.4%
Animal Control Pickup
27.7%
Born in Care
9.6%
Most Common Intakes
Service Out
2.6%
Died
5.8%
Adoption
90.3%
Outcomes
881
Banning Animal Shelter Report
Start Date: 02/01/2022 End Date: 02/28/2022
Cat .
SPECIES
Abandoned 11 Adoption 71
Animal Control Pickup 16 Died 3
Born in Care 10 45
Owner/Guardian Surrender 14 Service Out 5
Return 6
Service In 4
Stray - Private Person 9
Total Intakes Total Outcomes
70 124
Return to Owner/
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
12.9%
Service In
5.7%
Return
8.6%
Owner/Guardian Sur…
20.0%
Abandoned
15.7%
Animal Control Pickup
22.9%
Born in Care
14.3%
Most Common Intakes
Service Out
4.0%
Return to Owner/Gu…
36.3%
Died
2.4%
Adoption
57.3%
Outcomes
882
Banning Animal Shelter Report
Start Date: 03/01/2022 End Date: 03/31/2022
Cat .
SPECIES
Abandoned 9 Adoption 115
Animal Control Pickup 13 Died 10
Born in Care 24 8
Owner/Guardian Surrender 42 Service Out 2
Return 5
Service In 2
Stray - Private Person 35
Total Intakes Total Outcomes
130 135
Return to Owner/
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
26.9%
Service In
1.5%
Return
3.8%
Owner/Guardian Sur…
32.3%
Abandoned
6.9%
Animal Control Pickup
10.0%
Born in Care
18.5%
Most Common Intakes
Service Out
1.5%
Return to Owner/Gu…
5.9%
Died
7.4%
Adoption
85.2%
Outcomes
883
Banning Animal Shelter Report
Start Date: 04/01/2022 End Date: 04/30/2022
Cat .
SPECIES
Abandoned 14 Adoption 83
Animal Control Pickup 16 Died 9
Born in Care 48 5
Owner/Guardian Surrender 72 Service Out 3
Return 7
Service In 4
Stray - Private Person 103
Transfer In (non-ACO) 2
Total Intakes Total Outcomes
266 100
Return to Owner/
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Transfer In (non-ACO)
0.8%
Stray - Private Person
38.7%
Service In
1.5%
Return
2.6%
Abandoned
5.3%
Animal Control Pickup
6.0%
Born in Care
18.0%
Owner/Guardian Sur…
27.1%
Most Common Intakes
Service Out
3.0%
Return to Owner/Gu…
5.0%
Died
9.0%
Adoption
83.0%
Outcomes
884
Banning Animal Shelter Report
Start Date: 05/01/2022 End Date: 05/31/2022
Cat .
SPECIES
Abandoned 1 Adoption 83
Animal Control Pickup 39 Died 15
Born in Care 39 2
Owner/Guardian Surrender 95 Service Out 8
Return 14 Stolen / Lost 1
Service In 9
Stray - Private Person 92
Transfer In (non-ACO) 11
Total Intakes Total Outcomes
300 109
Return to Owner/
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Transfer In (non-ACO)
3.7%
Stray - Private Person
30.7%
Service In
3.0%
Return
4.7%
Abandoned
0.3%
Animal Control Pickup
13.0%
Born in Care
13.0%
Owner/Guardian Sur…
31.7%
Most Common Intakes
Stolen / Lost
0.9%
Service Out
7.3%
Return to Owner/Gu…
1.8%
Died
13.8%
Adoption
76.1%
Outcomes
885
Banning Animal Shelter Report
Start Date: 06/01/2022 End Date: 06/30/2022
Cat .
SPECIES
Abandoned 15 Adoption 98
Animal Control Pickup 16 Died 8
Born in Care 26 1
Owner/Guardian Surrender 59 Service Out 13
Return 6
Service In 17
Stray - Private Person 47
Transfer In (non-ACO) 4
Total Intakes Total Outcomes
190 120
Return to Owner/
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Transfer In (non-ACO)
2.1%
Stray - Private Person
24.7%
Service In
8.9%
Return
3.2%
Abandoned
7.9%
Animal Control Pickup
8.4%
Born in Care
13.7%
Owner/Guardian Sur…
31.1%
Most Common Intakes
Service Out
10.8%
Return to Owner/Gu…
0.8%
Died
6.7%
Adoption
81.7%
Outcomes
886
Banning Animal Shelter Report
Start Date: 07/01/2021 End Date: 07/31/2021
Cat .
SPECIES
Abandoned 2 Adoption 4
Animal Control Pickup 41 Died 1
Born in Care 7 1
Owner/Guardian Surrender 5
Return 1
Stray - Private Person 25
Transfer In (non-ACO) 7
Total Intakes Total Outcomes
88 6
Return to Owner/
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Transfer In (non-ACO)
8.0%
Stray - Private Person
28.4%
Return
1.1%
Owner/Guardian Sur…
5.7%
Born in Care
8.0%
Abandoned
2.3%
Animal Control Pickup
46.6%
Most Common Intakes
Return to Owner/Gu…
16.7%
Died
16.7%
Adoption
66.7%
Outcomes
887
Banning Animal Shelter Report
Start Date: 08/01/2021 End Date: 08/31/2021
Cat .
SPECIES
Animal Control Pickup 12 Adoption 50
Owner/Guardian Surrender 1 Died 1
Return 3 3
Stray - Private Person 32 Service Out 0
Transfer Out 0
Total Intakes Total Outcomes
48 54
Returned to Own
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
66.7%
Animal Control Pickup
25.0%
Owner/Guardian Sur…
2.1%
Return
6.3%
Most Common Intakes
Returned to Owner/…
5.6%
Died
1.9%
Adoption
92.6%
Outcomes
888
Banning Animal Shelter Report
Start Date: 09/01/2021 End Date: 09/30/2021
Cat .
SPECIES
Animal Control Pickup 14 Adoption 18
Return 1 Died 1
Service In 1 4
Stray - Private Person 14 Service Out 0
Transfer Out 0
Total Intakes Total Outcomes
30 23
Returned to Own
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
46.7%
Service In
3.3%
Animal Control Pickup
46.7%
Return
3.3%
Most Common Intakes
Returned to Owner/…
17.4%
Died
4.3%
Adoption
78.3%
Outcomes
889
Banning Animal Shelter Report
Start Date: 10/01/2021 End Date: 10/31/2021
Cat .
SPECIES
Animal Control Pickup 21 Adoption 19
Stray - Private Person 14 Died 0
2 Service Out 0
Transfer Out 2
Total Intakes Total Outcomes
35 23
Returned to Own
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
40.0%
Animal Control Pickup
60.0%
Most Common Intakes
Transfer Out
8.7%
Returned to Owner/…
8.7%
Adoption
82.6%
Outcomes
890
Banning Animal Shelter Report
Start Date: 11/01/2021 End Date: 11/30/2021
Cat .
SPECIES
Animal Control Pickup 22 Adoption 11
Return 1 Died 2
Service In 1 7
Stray - Private Person 11 Service Out 1
Transfer Out 2
Total Intakes Total Outcomes
35 23
Returned to Own
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
31.4%
Service In
2.9%
Return
2.9%
Animal Control Pickup
62.9%
Most Common Intakes
Transfer Out
8.7%
Service Out
4.3%
Returned to Owner/…
30.4%
Died
8.7%
Adoption
47.8%
Outcomes
891
Banning Animal Shelter Report
Start Date: 12/01/2021 End Date: 12/31/2021
Cat .
SPECIES
Animal Control Pickup 4 Adoption 12
Born in Care 1 Died 1
Owner/Guardian Surrender 6 8
Service In 1 Service Out 2
Stray - Private Person 14 Transfer Out 3
Total Intakes Total Outcomes
26 26
Returned to Own
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
53.8%
Animal Control Pickup
15.4%
Born in Care
3.8%
Owner/Guardian Sur…
23.1%
Service In
3.8%
Most Common Intakes
Transfer Out
11.5%
Service Out
7.7%
Returned to Owner/…
30.8%
Adoption
46.2%
Died
3.8%
Outcomes
892
Banning Animal Shelter Report
Start Date: 01/01/2022 End Date: 01/31/2022
SPECIES Dog
Abandoned 3 Adoption 39
Animal Control Pickup 30 Died 1
Born in Care 6 27
Owner/Guardian Surrender 1 Service Out 16
Return 5 Stolen / Lost 2
Service In 16
Stray - Private Person 35
Transfer In (non-ACO) 7
Total Intakes Total Outcomes
103 85
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Transfer In (non-ACO)
6.8%
Stray - Private Person
34.0%
Service In
15.5%
Abandoned
2.9%
Animal Control Pickup
29.1%
Born in Care
5.8%
Owner/Guardian Sur…
1.0%
Return
4.9%
Most Common Intakes
Stolen / Lost
2.4%
Service Out
18.8%
Return to Owner/Gu…
31.8%
Adoption
45.9%
Died
1.2%
Outcomes
893
Banning Animal Shelter Report
Start Date: 02/01/2022 End Date: 02/28/2022
SPECIES Dog
Animal Control Pickup 20 Adoption 56
Return 6 Euthanasia 1
Service In 9 14
Stray - Private Person 15 Service Out 9
Transfer Out 1
Total Intakes Total Outcomes
50 81
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
30.0%
Service In
18.0%
Animal Control Pickup
40.0%
Return
12.0%
Most Common Intakes
Transfer Out
1.2%
Service Out
11.1%
Return to Owner/Gu…
17.3%
Euthanasia
1.2%
Adoption
69.1%
Outcomes
894
Banning Animal Shelter Report
Start Date: 03/01/2022 End Date: 03/31/2022
SPECIES Dog
Animal Control Pickup 27 Adoption 46
Owner/Guardian Surrender 10 24
Return 7 Service Out 7
Service In 8
Stray - Private Person 26
Total Intakes Total Outcomes
78 77
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
33.3%
Service In
10.3%
Return
9.0%
Animal Control Pickup
34.6%
Owner/Guardian Sur…
12.8%
Most Common Intakes
Service Out
9.1%
Return to Owner/Gu…
31.2%
Adoption
59.7%
Outcomes
895
Banning Animal Shelter Report
Start Date: 04/01/2022 End Date: 04/30/2022
SPECIES Dog
Animal Control Pickup 22 Adoption 41
Born in Care 7 Euthanasia 1
Owner/Guardian Surrender 10 9
Return 2 Service Out 6
Service In 8 Stolen / Lost 2
Stray - Private Person 12 Transfer Out 1
Transfer In (non-ACO) 1
Total Intakes Total Outcomes
62 60
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Transfer In (non-ACO)
1.6%
Stray - Private Person
19.4%
Service In
12.9%
Return
3.2%
Owner/Guardian Sur…
16.1%
Animal Control Pickup
35.5%
Born in Care
11.3%
Most Common Intakes
Stolen / Lost
3.3%
Service Out
10.0%
Return to Owner/Gu…
15.0%
Euthanasia
1.7%
Adoption
68.3%
Outcomes
896
Banning Animal Shelter Report
Start Date: 05/01/2022 End Date: 05/31/2022
SPECIES Dog
Abandoned 6 Adoption 34
Animal Control Pickup 32 Died 3
Owner/Guardian Surrender 3 28
Return 6 Service Out 8
Service In 5
Stray - Private Person 20
Transfer In (non-ACO) 7
Total Intakes Total Outcomes
79 73
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Transfer In (non-ACO)
8.9%
Stray - Private Person
25.3%
Service In
6.3%
Return
7.6%
Abandoned
7.6%
Animal Control Pickup
40.5%
Owner/Guardian Sur…
3.8%
Most Common Intakes
Service Out
11.0%
Return to Owner/Gu…
38.4%
Adoption
46.6%
Died
4.1%
Outcomes
897
Banning Animal Shelter Report
Start Date: 06/01/2022 End Date: 06/30/2022
SPECIES Dog
Abandoned 2 Adoption 34
Animal Control Pickup 23 Died 1
Born in Care 5 19
Owner/Guardian Surrender 2 Service Out 11
Return 4 Stolen / Lost 1
Service In 15 Transfer Out 2
Stray - Private Person 21
Total Intakes Total Outcomes
72 68
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
29.2%
Service In
20.8%
Abandoned
2.8%
Animal Control Pickup
31.9%
Born in Care
6.9%
Owner/Guardian Sur…
2.8%
Return
5.6%
Most Common Intakes
Transfer Out
2.9%
Service Out
16.2%
Return to Owner/Gu…
27.9%
Died
1.5%
Adoption
50.0%
Outcomes
898
Banning Animal Shelter Report
Start Date: 07/01/2021 End Date: 07/31/2021
Dog .
SPECIES
Animal Control Pickup 29 Adoption 27
Owner/Guardian Surrender 12 16
Return 3 Service Out 11
Service In 11 Transfer Out 1
Stray - Private Person 17
Transfer In (non-ACO) 2
Total Intakes Total Outcomes
74 55
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Transfer In (non-ACO)
2.7%
Stray - Private Person
23.0%
Service In
14.9%
Return
4.1%
Animal Control Pickup
39.2%
Owner/Guardian Sur…
16.2%
Most Common Intakes
Transfer Out
1.8%
Service Out
20.0%
Return to Owner/Gu…
29.1%
Adoption
49.1%
Outcomes
899
Banning Animal Shelter Report
Start Date: 08/01/2021 End Date: 08/31/2021
Dog .
SPECIES
Abandoned 1 Adoption 29
Animal Control Pickup 33 Died 1
Owner/Guardian Surrender 3 14
Return 5 Service Out 6
Service In 3
Stray - Private Person 6
Transfer In (non-ACO) 3
Total Intakes Total Outcomes
54 50
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Transfer In (non-ACO)
5.6%
Stray - Private Person
11.1%
Service In
5.6%
Return
9.3%
Owner/Guardian Sur…
5.6%
Abandoned
1.9%
Animal Control Pickup
61.1%
Most Common Intakes
Service Out
12.0%
Return to Owner/Gu…
28.0%
Died
2.0%
Adoption
58.0%
Outcomes
900
Banning Animal Shelter Report
Start Date: 09/01/2021 End Date: 09/30/2021
Dog .
SPECIES
Abandoned 2 Adoption 18
Animal Control Pickup 20 9
Owner/Guardian Surrender 8 Service Out 5
Return 1 Transfer Out 4
Service In 5
Stray - Private Person 4
Total Intakes Total Outcomes
40 36
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
10.0%
Service In
12.5%
Return
2.5%
Owner/Guardian Sur…
20.0%
Abandoned
5.0%
Animal Control Pickup
50.0%
Most Common Intakes
Transfer Out
11.1%
Service Out
13.9%
Return to Owner/Gu…
25.0%
Adoption
50.0%
Outcomes
901
Banning Animal Shelter Report
Start Date: 10/01/2021 End Date: 10/31/2021
Dog .
SPECIES
Animal Control Pickup 25 Adoption 20
Owner/Guardian Surrender 6 12
Return 5 Service Out 10
Service In 10
Stray - Private Person 6
Total Intakes Total Outcomes
52 42
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
11.5%
Service In
19.2%
Return
9.6%
Owner/Guardian Sur…
11.5%
Animal Control Pickup
48.1%
Most Common Intakes
Service Out
23.8%
Return to Owner/Gu…
28.6%
Adoption
47.6%
Outcomes
902
Banning Animal Shelter Report
Start Date: 11/01/2021 End Date: 11/30/2021
Dog .
SPECIES
Animal Control Pickup 23 Adoption 42
Owner/Guardian Surrender 1 14
Return 5 Service Out 4
Service In 4
Stray - Private Person 9
Total Intakes Total Outcomes
42 60
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
21.4%
Service In
9.5%
Return
11.9%
Owner/Guardian Sur…
2.4%
Animal Control Pickup
54.8%
Most Common Intakes
Service Out
6.7%
Return to Owner/Gu…
23.3%
Adoption
70.0%
Outcomes
903
Banning Animal Shelter Report
Start Date: 12/01/2021 End Date: 12/31/2021
Dog .
SPECIES
Abandoned 3 Adoption 19
Animal Control Pickup 65 Died 1
Owner/Guardian Surrender 1 21
Return 4 Service Out 23
Service In 23
Stray - Private Person 19
Total Intakes Total Outcomes
115 64
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
16.5%
Service In
20.0%
Return
3.5%
Owner/Guardian Sur…
0.9%
Abandoned
2.6%
Animal Control Pickup
56.5%
Most Common Intakes
Service Out
35.9%
Adoption
29.7%
Died
1.6%
Return to Owner/Gu…
32.8%
Outcomes
904
Banning Animal Shelter Report
Start Date: 01/01/2023 End Date: 01/31/2023
SPECIES Cat
Abandoned 2 Adoption 102
Animal Control Pickup 1 Died 1
Owner/Guardian Surrender 14 4
Return 2 Service Out 3
Service In 3
Stray - Private Person 19
Transfer In (non-ACO) 4
Total Intakes Total Outcomes
45 110
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Transfer In (non-ACO)
8.9%
Stray - Private Person
42.2%
Abandoned
4.4%
Animal Control Pickup
2.2%
Owner/Guardian Sur…
31.1%
Return
4.4%
Service In
6.7%
Most Common Intakes
Service Out
2.7%
Return to Owner/Gu…
3.6%
Adoption
92.7%
Outcomes
905
Banning Animal Shelter Report
Start Date: 02/01/2023 End Date: 02/28/2023
SPECIES Cat
Animal Control Pickup 12 Adoption 85
Born in Care 5 Died 1
Owner/Guardian Surrender 2 Service Out 2
Return 1
Service In 2
Stray - Private Person 11
Transfer In (non-ACO) 1
Total Intakes Total Outcomes
34 88
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Transfer In (non-ACO)
2.9%
Stray - Private Person
32.4%
Service In
5.9%
Return
2.9%
Owner/Guardian Sur…
5.9%
Animal Control Pickup
35.3%
Born in Care
14.7%
Most Common Intakes
Service Out
2.3%
Adoption
96.6%
Outcomes
906
Banning Animal Shelter Report
Start Date: 03/01/2023 End Date: 03/31/2023
SPECIES Cat
Abandoned 2 Adoption 74
Animal Control Pickup 7 Died 1
Born in Care 3 1
Owner/Guardian Surrender 18 Service Out 1
Return 4
Stray - Private Person 49
Total Intakes Total Outcomes
83 77
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
59.0%
Abandoned
2.4%
Animal Control Pickup
8.4%
Born in Care
3.6%
Owner/Guardian Sur…
21.7%
Return
4.8%
Most Common Intakes
Service Out
1.3%
Adoption
96.1%
Outcomes
907
Banning Animal Shelter Report
Start Date: 04/01/2023 End Date: 04/30/2023
SPECIES Cat
Animal Control Pickup 15 Adoption 42
Born in Care 4 Died 2
Owner/Guardian Surrender 31 3
Return 3
Stray - Private Person 50
Total Intakes Total Outcomes
103 47
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
48.5%
Animal Control Pickup
14.6%
Born in Care
3.9%
Owner/Guardian Sur…
30.1%
Return
2.9%
Most Common Intakes
Return to Owner/Gu…
6.4%
Died
4.3%
Adoption
89.4%
Outcomes
908
Banning Animal Shelter Report
Start Date: 05/01/2023 End Date: 05/31/2023
SPECIES Cat
Abandoned 14 Adoption 56
Animal Control Pickup 5 Died 3
Born in Care 19 1
Owner/Guardian Surrender 53 Stolen / Lost 1
Return 2
Stray - Private Person 67
Total Intakes Total Outcomes
160 61
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
41.9%
Return
1.3%
Abandoned
8.8%
Animal Control Pickup
3.1%
Born in Care
11.9%
Owner/Guardian Sur…
33.1%
Most Common Intakes
Stolen / Lost
1.6%
Died
4.9%
Adoption
91.8%
Outcomes
909
Banning Animal Shelter Report
Start Date: 06/01/2023 End Date: 06/30/2023
SPECIES Cat
Abandoned 4 Adoption 82
Animal Control Pickup 7 Died 2
Born in Care 1 4
Owner/Guardian Surrender 23 Service Out 1
Return 4
Service In 1
Stray - Private Person 43
Total Intakes Total Outcomes
83 89
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
51.8%
Abandoned
4.8%
Animal Control Pickup
8.4%
Born in Care
1.2%
Owner/Guardian Sur…
27.7%
Return
4.8%
Service In
1.2%
Most Common Intakes
Return to Owner/Gu…
4.5%
Died
2.2%
Adoption
92.1%
Outcomes
910
Banning Animal Shelter Report
Start Date: 07/01/2022 End Date: 07/31/2022
Cat .
SPECIES
Abandoned 21 Adoption 141
Animal Control Pickup 7 Died 5
Born in Care 14 Service Out 19
Owner/Guardian Surrender 32 Stolen / Lost 1
Return 2
Service In 20
Stray - Private Person 35
Transfer In (non-ACO) 2
Total Intakes Total Outcomes
133 166
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Transfer In (non-ACO)
1.5%
Stray - Private Person
26.3%
Service In
15.0%
Return
1.5%
Abandoned
15.8%
Animal Control Pickup
5.3%
Born in Care
10.5%
Owner/Guardian Sur…
24.1%
Most Common Intakes
Stolen / Lost
0.6%
Service Out
11.4%
Died
3.0%
Adoption
84.9%
Outcomes
911
Banning Animal Shelter Report
Start Date: 08/01/2022 End Date: 08/31/2022
Cat .
SPECIES
Abandoned 9 Adoption 107
Animal Control Pickup 13 Died 3
Born in Care 9 3
Owner/Guardian Surrender 32 Service Out 12
Service In 10
Stray - Private Person 49
Total Intakes Total Outcomes
122 125
Return to Owner/
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
40.2%
Service In
8.2%
Abandoned
7.4%
Animal Control Pickup
10.7%
Born in Care
7.4%
Owner/Guardian Sur…
26.2%
Most Common Intakes
Service Out
9.6%
Return to Owner/Gu…
2.4%
Died
2.4%
Adoption
85.6%
Outcomes
912
Banning Animal Shelter Report
Start Date: 09/01/2022 End Date: 09/30/2022
Cat .
SPECIES
Abandoned 14 Adoption 120
Animal Control Pickup 5 Died 7
Born in Care 6 Euthanasia 1
Owner/Guardian Surrender 22 2
Service In 14 Service Out 12
Stray - Private Person 56
Total Intakes Total Outcomes
117 142
Return to Owner/
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
47.9%
Abandoned
12.0%
Animal Control Pickup
4.3%
Born in Care
5.1%
Owner/Guardian Sur…
18.8%
Service In
12.0%
Most Common Intakes
Service Out
8.5%
Return to Owner/Gu…
1.4%
Euthanasia
0.7%
Died
4.9%
Adoption
84.5%
Outcomes
913
Banning Animal Shelter Report
Start Date: 10/01/2022 End Date: 10/31/2022
Cat .
SPECIES
Abandoned 4 Adoption 88
Animal Control Pickup 10 Died 10
Owner/Guardian Surrender 23 4
Return 4 Service Out 8
Service In 10
Stray - Private Person 40
Total Intakes Total Outcomes
91 110
Return to Owner/
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
44.0%
Service In
11.0%
Abandoned
4.4%
Animal Control Pickup
11.0%
Owner/Guardian Sur…
25.3%
Return
4.4%
Most Common Intakes
Service Out
7.3%
Return to Owner/Gu…
3.6%
Died
9.1%
Adoption
80.0%
Outcomes
914
Banning Animal Shelter Report
Start Date: 11/01/2022 End Date: 11/30/2022
Cat .
SPECIES
Abandoned 4 Adoption 74
Animal Control Pickup 6 Died 9
Born in Care 4 Euthanasia 1
Owner/Guardian Surrender 12 Service Out 2
Return 1
Service In 1
Stray - Private Person 27
Total Intakes Total Outcomes
55 86
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
49.1%
Abandoned
7.3%
Animal Control Pickup
10.9%
Born in Care
7.3%
Owner/Guardian Sur…
21.8%
Return
1.8%
Most Common Intakes
Service Out
2.3%
Died
10.5%
Adoption
86.0%
Outcomes
915
Banning Animal Shelter Report
Start Date: 12/01/2022 End Date: 12/31/2022
Cat .
SPECIES
Animal Control Pickup 6 Adoption 98
Born in Care 7 Died 6
Owner/Guardian Surrender 17 3
Return 2 Service Out 12
Service In 10
Stray - Private Person 13
Total Intakes Total Outcomes
55 119
Return to Owner/
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
23.6%
Service In
18.2%
Return
3.6%
Animal Control Pickup
10.9%
Born in Care
12.7%
Owner/Guardian Sur…
30.9%
Most Common Intakes
Service Out
10.1%
Return to Owner/Gu…
2.5%
Died
5.0%
Adoption
82.4%
Outcomes
916
Banning Animal Shelter Report
Start Date: 01/01/2023 End Date: 01/31/2023
SPECIES Dog
Animal Control Pickup 31 Adoption 16
Born in Care 7 Died 1
Owner/Guardian Surrender 4 17
Service In 3 Service Out 6
Stray - Private Person 14
Total Intakes Total Outcomes
59 40
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
23.7%
Service In
5.1%
Owner/Guardian Sur…
6.8%
Born in Care
11.9%
Animal Control Pickup
52.5%
Most Common Intakes
Service Out
15.0%
Return to Owner/Gu…
42.5%
Adoption
40.0%
Died
2.5%
Outcomes
917
Banning Animal Shelter Report
Start Date: 02/01/2023 End Date: 02/28/2023
SPECIES Dog
Animal Control Pickup 17 Adoption 29
Return 1 12
Service In 4 Service Out 4
Stray - Private Person 14 Transfer Out 12
Total Intakes Total Outcomes
36 57
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
38.9%
Service In
11.1%
Animal Control Pickup
47.2%
Return
2.8%
Most Common Intakes
Transfer Out
21.1%
Service Out
7.0%
Return to Owner/Gu…
21.1%
Adoption
50.9%
Outcomes
918
Banning Animal Shelter Report
Start Date: 03/01/2023 End Date: 03/31/2023
SPECIES Dog
Abandoned 1 Adoption 30
Animal Control Pickup 16 8
Service In 3 Service Out 4
Stray - Private Person 24 Transfer Out 3
Total Intakes Total Outcomes
44 45
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
54.5%
Abandoned
2.3%
Animal Control Pickup
36.4%
Service In
6.8%
Most Common Intakes
Transfer Out
6.7%
Service Out
8.9%
Return to Owner/Gu…
17.8%
Adoption
66.7%
Outcomes
919
Banning Animal Shelter Report
Start Date: 04/01/2023 End Date: 04/30/2023
SPECIES Dog
Animal Control Pickup 27 Adoption 44
Born in Care 12 Died 2
Owner/Guardian Surrender 2 10
Service In 1 Service Out 2
Stray - Private Person 17 Transfer Out 5
Total Intakes Total Outcomes
59 63
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
28.8%
Service In
1.7%
Owner/Guardian Sur…
3.4%
Born in Care
20.3%
Animal Control Pickup
45.8%
Most Common Intakes
Transfer Out
7.9%
Service Out
3.2%
Return to Owner/Gu…
15.9%
Died
3.2%
Adoption
69.8%
Outcomes
920
Banning Animal Shelter Report
Start Date: 05/01/2023 End Date: 05/31/2023
SPECIES Dog
Abandoned 1 Adoption 25
Animal Control Pickup 25 Died 1
Owner/Guardian Surrender 2 12
Return 3 Service Out 5
Service In 2 Transfer Out 3
Stray - Private Person 12
Total Intakes Total Outcomes
45 46
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
26.7%
Service In
4.4%
Return
6.7%
Owner/Guardian Sur…
4.4%
Abandoned
2.2%
Animal Control Pickup
55.6%
Most Common Intakes
Transfer Out
6.5%
Service Out
10.9%
Return to Owner/Gu…
26.1%
Died
2.2%
Adoption
54.3%
Outcomes
921
Banning Animal Shelter Report
Start Date: 06/01/2023 End Date: 06/30/2023
SPECIES Dog
Abandoned 4 Adoption 28
Animal Control Pickup 6 Died 1
Owner/Guardian Surrender 2 4
Return 2 Service Out 1
Service In 2
Stray - Private Person 21
Total Intakes Total Outcomes
37 34
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
56.8%
Abandoned
10.8%
Animal Control Pickup
16.2%
Owner/Guardian Sur…
5.4%
Return
5.4%
Service In
5.4%
Most Common Intakes
Service Out
2.9%
Return to Owner/Gu…
11.8%
Died
2.9%
Adoption
82.4%
Outcomes
922
Banning Animal Shelter Report
Start Date: 07/01/2022 End Date: 07/31/2022
SPECIES Dog
Abandoned 1 Adoption 51
Animal Control Pickup 41 Died 1
Born in Care 6 24
Return 1 Service Out 8
Service In 11 Transfer Out 4
Stray - Private Person 28
Total Intakes Total Outcomes
88 88
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
31.8%
Service In
12.5%
Return
1.1%
Born in Care
6.8%
Abandoned
1.1%
Animal Control Pickup
46.6%
Most Common Intakes
Transfer Out
4.5%
Service Out
9.1%
Return to Owner/Gu…
27.3%
Died
1.1%
Adoption
58.0%
Outcomes
923
Banning Animal Shelter Report
Start Date: 08/01/2022 End Date: 08/31/2022
SPECIES Dog
Abandoned 5 Adoption 24
Animal Control Pickup 24 Died 3
Return 4 20
Service In 8 Service Out 12
Stray - Private Person 23 Transfer Out 1
Total Intakes Total Outcomes
64 60
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
35.9%
Service In
12.5%
Abandoned
7.8%
Animal Control Pickup
37.5%
Return
6.3%
Most Common Intakes
Transfer Out
1.7%
Service Out
20.0%
Return to Owner/Gu…
33.3%
Adoption
40.0%
Died
5.0%
Outcomes
924
Banning Animal Shelter Report
Start Date: 09/01/2022 End Date: 09/30/2022
SPECIES Dog
Animal Control Pickup 32 Adoption 33
Born in Care 11 16
Return 2 Service Out 8
Service In 15 Transfer Out 8
Stray - Private Person 22
Total Intakes Total Outcomes
82 65
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
26.8%
Service In
18.3%
Return
2.4%
Animal Control Pickup
39.0%
Born in Care
13.4%
Most Common Intakes
Transfer Out
12.3%
Service Out
12.3%
Return to Owner/Gu…
24.6%
Adoption
50.8%
Outcomes
925
Banning Animal Shelter Report
Start Date: 10/01/2022 End Date: 10/31/2022
SPECIES Dog
Abandoned 1 Adoption 33
Animal Control Pickup 33 20
Owner/Guardian Surrender 1 Service Out 17
Return 3 Transfer Out 7
Service In 16
Stray - Private Person 35
Total Intakes Total Outcomes
89 77
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
39.3%
Service In
18.0%
Abandoned
1.1%
Animal Control Pickup
37.1%
Owner/Guardian Sur…
1.1%
Return
3.4%
Most Common Intakes
Transfer Out
9.1%
Service Out
22.1%
Return to Owner/Gu…
26.0%
Adoption
42.9%
Outcomes
926
Banning Animal Shelter Report
Start Date: 11/01/2022 End Date: 11/30/2022
SPECIES Dog
Animal Control Pickup 25 Adoption 35
Return 4 13
Service In 10 Service Out 8
Stray - Private Person 29
Total Intakes Total Outcomes
68 56
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
42.6%
Animal Control Pickup
36.8%
Return
5.9%
Service In
14.7%
Most Common Intakes
Service Out
14.3%
Return to Owner/Gu…
23.2%
Adoption
62.5%
Outcomes
927
Banning Animal Shelter Report
Start Date: 12/01/2022 End Date: 12/31/2022
SPECIES Dog
Animal Control Pickup 15 Adoption 31
Service In 37 Died 3
Stray - Private Person 17 11
Service Out 37
Transfer Out 2
Total Intakes Total Outcomes
69 84
Return to Owner
Intake Type COUNTA of Intake Type Outcome Type COUNTA of Outcome Type Stray - Private Person
24.6%
Animal Control Pickup
21.7%
Service In
53.6%
Most Common Intakes
Transfer Out
2.4%
Service Out
44.0%
Adoption
36.9%
Died
3.6%
Return to Owner/Gu…
13.1%
Outcomes
928
05/02/2023
Edgewood Partners Insurance Center
3697 Mt. Diablo Blvd, Ste 100
Lafayette CA 94549-3745
Estrella Ferrer
(925) 222-6776
[email protected]
ARE Animal Rescue
140 N San Jacinto
Hemet CA 92543
Arch Insurance Company 11150
23/24
A Y MKPK09586202 02/04/2023 02/04/2024
1,000,000
100,000
10,000
1,000,000
2,000,000
2,000,000
A MKPK09586202 02/04/2023 02/04/2024
1,000,000
Medical payments 5,000
The City of Banning, its officers, officials, employees, agents and volunteers are additional insured. Waiver of Subrogation applies to: The City of Banning, its officers, officials, employees, agents and volunteers
City of Banning
1075 Broad Ripple Ave
Suite 313
Indianapolis IN 46220
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
INSURER(S) AFFORDING COVERAGE
INSURER F :
INSURER E :
INSURER D :
INSURER C :
INSURER B :
INSURER A :
NAIC #
NAME:
CONTACT
(A/C, No):
FAX
E-MAIL
ADDRESS:
PRODUCER
(A/C, No, Ext):
PHONE
INSURED
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
OTHER:
(Per accident)
(Ea accident)
$
$
N / A
SUBR
WVD
ADDL
INSD
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $
$
$
$ PROPERTY DAMAGE
BODILY INJURY (Per accident)
BODILY INJURY (Per person)
COMBINED SINGLE LIMIT
AUTOS ONLY
AUTOS ONLY AUTOS
NON-OWNED
OWNED SCHEDULED
ANY AUTO
AUTOMOBILE LIABILITY
Y / N
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY
OFFICER/MEMBER EXCLUDED?
(Mandatory in NH)
DESCRIPTION OF OPERATIONS below
If yes, describe under
ANY PROPRIETOR/PARTNER/EXECUTIVE
$
$
$
E.L. DISEASE - POLICY LIMIT
E.L. DISEASE - EA EMPLOYEE
E.L. EACH ACCIDENT
ER
OTH- STATUTEPER
(MM/DD/YYYY) LIMITS POLICY EXP (MM/DD/YYYY)
POLICY EFF LTR TYPE OF INSURANCE POLICY NUMBER INSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
EXCESS LIAB
UMBRELLA LIAB EACH OCCURRENCE $
AGGREGATE $
$
OCCUR
CLAIMS-MADE
DED RETENTION $
PRODUCTS - COMP/OP AGG $
GENERAL AGGREGATE $
PERSONAL & ADV INJURY $
MED EXP (Any one person) $
EACH OCCURRENCE $
DAMAGE TO RENTED
PREMISES (Ea occurrence) $
COMMERCIAL GENERAL LIABILITY
CLAIMS-MADE OCCUR
GEN'L AGGREGATE LIMIT APPLIES PER:
POLICY PROJECT LOC
CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY)
CANCELLATION
AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2015 ACORD CORPORATION. All rights reserved.
CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED
AUTOS ONLY
929
930
931
932
933
11303-0003\2517690v2.doc
ANIMAL CARE AND SHELTER SERVICES OPERATION AGREEMENT
THIS CONTRACT is entered into as of the 27th day of April 2021, by and between the City of Banning, a California municipal corporation, hereinafter referred to as “City”, and ARE Animal Rescue, Inc., a California Nonprofit Benefit Corporation, hereinafter referred to as “ARE” or “Contractor.”
WITNESSETH
WHEREAS, from 2018 to the present, the City has been contracting with the County of Riverside for animal care and control services, and for cost and other reasons, the City now desires to transition those services to another provider who will also operate the City’s rehabilitated animal control shelter located at 2423 Charles Avenue, Banning, California; (“City Animal Shelter”);
WHEREAS, ARE is a California Nonprofit Benefit Corporation, incorporated in 2018 and with its offices in Hemet, California, with the specific purpose of coordinating the fostering, care and adoption of abandoned animal as an alternative to euthanasia; WHEREAS, ARE has the management capabilities, experience and resources to provide such services; and
WHEREAS, City desires to contract with ARE to provide a broad range of animal care and shelter activities for the purpose of safeguarding the health and safety of its domestic and wild animals in the City, operating the City’s recently refurbished City Animal Shelter, promoting the humane treatment of animals, and for enforcing City ordinances relating to animal control; and
WHEREAS, in conjunction with this contract, the City has entered into a lease agreement dated March 23, 2021 with ARE by which the City has leased the property and buildings containing the City Animal Shelter.
WHEREAS, the parties desire to enter into a Contract (hereinafter “Contract”) whereby ARE will furnish animal care and control services to City as specifically defined herein; NOW, THEREFORE, the parties hereto agree as follows:
1. TERM OF CONTRACT
This Contract shall commence as of the day and year above, or July 1, 2021, whichever date is later, and shall remain in full force and effect through June 30, 2026, unless sooner terminated as provided herein. The City Manager, or his or her designee, is authorized to make a one-time extension of this Contract for a period of five (5) years as long as such extension is upon the same terms and conditions as this original Contract.
DocuSign Envelope ID: 54FD7A88-3C1B-4208-A13D-1201C007D265 934
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2. COMPENSATION
A. Payment.
Payment for services shall be based on the rates and amounts as set forth in Exhibits “A” and “B”, which are attached hereto and incorporated herein by this reference.
City’s payments pursuant to Exhibit A and B shall constitute full compensation for the services provided by ARE to City under this Contract. There shall be no additional fees paid by the City for charges related to the services provided under this Contract, including but not limited to sheltering animals, fees for animals held, fees for dead animals, livestock charges.
B. Amendment of Compensation
1. The consideration for this Contract is based upon normal anticipated growth of City. If there is an exceptional change of circumstances, changes within the Banning City Municipal Code, or annexation, or exclusion of large areas, then the parties agree to meet and in good faith renegotiate the consideration for the remainder of the term of this Contract.
2. The compensation to ARE under this Contract shall not be adjusted during the Term of this Contract, except on the mutual agreement of the Parties, the execution of a written amendment to the Contract and only upon a determination by the City that the current payment amounts specified on Exhibit A and B do not reflect expenses that could not be reasonable anticipated or foreseen at the time the Contract was executed.
3. PROGRAM SCOPE AND SERVICE STANDARDS
ARE hereby agrees to operate the City’s Animal Shelter and an animal shelter program for City. In the conduct of this program, ARE agrees to perform the following functions in accordance with the objectives and standards set forth in this Contract and in compliance with the City’s Animal Code as codified as Chapter 6.04 of the Banning Municipal Code, as may be amended from time to time:
A. Animal Shelter.
1. Services. Impound, care for, quarantine and dispose of domestic, wild and vicious animals. Provide adoption and redemption services described in (c) below.
2. Holding Period. Except for acutely injured or diseased animals, ARE shall hold all stray animals for at least three (3) days and hold all licensed dogs for at least ten (10) days. Animals that are voluntarily surrendered by owners are exempted from the holding requirements and reasonable efforts will be made to promote their adoption where practical.
3. Adoption/Redemption Services. ARE shall provide animal adoption and redemption services for animals at the City’s Animal Shelter during normal business hours except when volunteers are not available. Business hours for adoption and DocuSign Envelope ID: 54FD7A88-3C1B-4208-A13D-1201C007D265 935
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redemption services shall not be less than the time period of 10:00 A.M. to 4:00 P.M., Tuesday through Saturday.
4. Euthanasia Services. ARE shall provide humane euthanasia of acutely sick, injured animals and dangerous animals. Euthanasia will be accomplished in a humane manner by injection of a painless, fast-acting drug. Euthanasia will be performed by a certified staff member.
5. Dog Licenses. ARE shall provide licensing information in all adoption packets and to pet owner’s recovering impounded pets that are not licensed. Pet licensing will be the responsibility of the City.
6. Maintenance. ARE shall maintain the shelter to be in a clean and sanitary condition at all times, consistent with generally applicable standards for similar facilities in Riverside County. ARE shall also secure from unauthorized entry.
B. Spay/Neuter Deposits. ARE shall, in accordance with the Food and Agriculture Code, Sections 30503 and 31751, collect a spay/neuter deposit for every dog and cat adopted from the City’s Animal Shelter. Deposits will be held by ARE and reimbursed directly to those who obtain valid releases within the allotted time. Upon forfeiture, such deposits shall become the property of ARE and shall be used for their prescribed purposes described in the Food and Agriculture Code.
C. Educational Material and Programs. ARE shall provide animal care and other information, literature and programs at a nominal fee to the general public, and upon request of City service clubs and other organizations, for a nominal fee not to exceed one hundred dollars ($100.00). Said fee will be used to cover any costs associated with the printing, development and distribution of said material.
D. Veterinary Services. ARE shall utilize licensed veterinary services for the care of impounded injured and sick animals.
E. Tone of Service and Resolution of Service Complaints. ARE shall provide service to the public on matters covered in this contract consistent with established policies and procedures in the industry so as to promote courteous and efficient service and good public relations. ARE shall cooperate with City to resolve any and all complaints filed with ARE or City pertaining to services provided or to be provided under this contract. ARE shall maintain and provide a record of complaints as required by Section 7 of this Contract.
F. Missing Animals. ARE shall file a report with the Banning Police Department or the Riverside County Sheriff’s Department, as applicable, within twenty-four (24) hours if an impounded animal in the custody of ARE at the animal shelter is missing or suspected to have been stolen.
G. Shelter Standards. ARE shall operate the City’s Animal Shelter in conformance with American Humane Association Standards.
DocuSign Envelope ID: 54FD7A88-3C1B-4208-A13D-1201C007D265 936
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H. Compliance with City’s Animal Code. ARE shall provide its services and operate the City’s Animal Shelter consistent with the City’s Animal Code (Chapter 6.04 of the Banning Municipal Code). In the event, a term or provision of this Contract conflicts with the provisions of the City’s Animal Code, the provisions of the Animal Code shall control.
4. DONATIONS
All financial donations and donations of non-perishable personal property shall become the property of ARE except upon the express written direction of the donor to the contrary. Donations of furnishings or building improvements shall become the property of the City.
5. CORRECTIVE ACTION
City may, at any time, request in writing that ARE address in writing any operational issues or deficiencies relating to the services specified in the Contract, and upon such notice, Contractor shall promptly, but not later than ten (10) days from receipt of that notice correct those operational issues and deficiencies.
6. REPRESENTATIVES OF THE PARTIES AND SHELTER PERSONNEL A. City Contract Officer: For the purposes of this Contract, the Contract Officer shall be the City Manager, or such other person designated in writing by the City Manager (“Contract Officer”). Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of City required hereunder to carry out the terms of this Contract.
B. Principals and Personnel of Contractor.
1. Contractor Representative: The following principal of Contractor is hereby designated as being the Contractor Representative authorized to act on Contractor’s behalf regarding the Services specified herein and make all decisions in connection therewith:
Name Title
Amber Schlieder Chief Executive Officer
2. It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Contractor Representative were a substantial inducement for City to enter into this Contract. Therefore, the foregoing Contractor Representative shall be responsible during the term of this Contract for directing all activities of Contractor and devoting sufficient time to personally supervise the Services hereunder. All personnel of Contractor, and any authorized agents, shall at all times be under the exclusive direction and control of the Contractor Representative. For purposes of this Contract, the foregoing Contractor Representative may not be replaced nor may their responsibilities be substantially reduced or reassigned by Contractor without the express written approval of City.
DocuSign Envelope ID: 54FD7A88-3C1B-4208-A13D-1201C007D265 937
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It shall be Contractor’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the Services, and Contractor shall refer any decisions which must be made by City to the Contract Officer.
3. Contractor’s Personnel: Contractor has, or will secure at its own expense, all personnel required to perform the Services required under this Contract. All of the Services required under this Contract shall be performed by Contractor or under its supervision, and all personnel engaged in the Services shall be qualified to perform such Services. Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor’s staff and sub-contractors, if any, assigned to perform the Services required under this Contract.
Contractor shall notify City of all changes in Contractor’s staff and sub-contractors, if any, assigned to perform the Services required under this Contract, prior to and during any such performance. In the event that City, in its sole discretion, at any time during the term of this Contract, desires to reassign any staff or sub-contractor of Contractor, City shall give notice as set forth in Section 8.1. Contractor shall, immediately upon the receipt of the notice to re-assign staff from City, reassign such person or persons.
4. Named Personnel. Contractor commits the principal personnel listed below to the project for its duration:
_________________________, _______________________.
5. Replacement of Named Personnel. It has been determined that the individual(s) named in this Contract are necessary for the successful performance of this Contract. No diversion or replacement of these individual(s) shall be made by ARE without written consent of City, provided that City may ratify, in writing, within ten (10) days of diversion or replacement and such ratification shall constitute the consent of City required by this clause. If City fails to respond to ARE within ten (10) days of notification by ARE, said personnel diversion or replacement shall be deemed approved.
6. City shall have the right to terminate this Contract upon those occasions where there is a change in the Director or Executive Director of ARE.
7. The City shall be provided with the names of the members of ARE’s Board of Directors and shall be notified when any change occurs in the membership of the Board of ARE.
7. RECORDS
A. ARE shall maintain and keep records of all expenditures and obligations incurred pursuant to this contract and all income and fees received thereby according to generally recognized accounting principles on a daily, weekly and monthly basis. Such records shall be maintained by ARE for a minimum of three (3) years, or longer if required by law.
B. ARE shall maintain and keep records of all licenses issued, impounds made, animals spade, neutered, treated for illness, adopted and all other actions taken with respect to the disposition of the animals.
DocuSign Envelope ID: 54FD7A88-3C1B-4208-A13D-1201C007D265 Amber Schlieder
938
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C. ARE shall make all records maintained under this section available to authorized City personnel during normal business hours upon reasonable notice. Such notice shall not be less than 72 hours. Such records shall also be provided upon the termination of the contract.
D. ARE shall maintain a record of all written complaints received by the ARE, from whatever source regarding the City’s animal control operations. Such records shall be provided to the City each month in a form to be agreed upon by the City and ARE.
E. A record of all donations made to ARE from whatever source or resources for the purposes set forth in this contract shall be provided to the City of Banning on a monthly basis and upon the termination of the contract. Such report shall be in a form agreed upon by the parties.
8. AUDIT AND INSPECTION
ARE shall annually provide to the City on the anniversary of this Contract a standard financial audit of its operations. The costs of such standard audit will be borne by ARE.
If the City requests a more extensive or specific audit by ARE, City shall be responsible for the cost of such expanded audit. If the expanded audit discloses substantial errors in the reimbursement of moneys to City, ARE shall be liable for all audit costs.
9. INDEMNIFICATION
Contractor shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively “Indemnitees”), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively “Liabilities”), at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Contractor, its officers, agents, servants, employees, sub-contractors, materialmen, or their officers, agents, servants or employees (or any entity or individual that Contractor shall bear the legal liability thereof) in the performance of this Contract, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties.
Contractor shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of the Indemnitees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense.
Contractor shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith.
DocuSign Envelope ID: 54FD7A88-3C1B-4208-A13D-1201C007D265 939
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10. INSURANCE
A. Minimum Scope and Limits of Insurance.
ARE shall procure and at all times during the term of this Contract carry, maintain, and keep in full force and effect, insurance as follows:
1. Commercial General Liability Insurance with a minimum limit of $1,000,000.00 per occurrence for bodily injury, personal injury and property damage and a general aggregate limit of $2,000,000.00 per project or location.
2. Automobile Liability Insurance for any owned, non-owned or hired vehicle used in connection with the performance of this Contract with a combined single limit of $1,000,000.00 per accident for bodily injury and property damage.
3. Workers’ Compensation Insurance as required by the State of California and Employer’s Liability Insurance with a minimum limit of $1,000,000.00 per accident for bodily injury or disease.
B. Acceptability of Insurers.
The insurance policies required under this Article shall be issued by an insurer admitted to write insurance in the State of California with a rating of A:VII or better in the latest edition of the A.M. Best Insurance Rating Guide. Self-insurance shall not be considered to comply with the insurance requirements under this Article.
C. Additional Insured.
The commercial general and automobile liability policies shall contain an endorsement naming City, its officers, employees, agents and volunteers as additional insureds.
D. Primary and Non-Contributing.
The insurance policies required under this Article shall apply on a primary noncontributing basis in relation to any other insurance or self-insurance available to City. Any insurance or self-insurance maintained by City, its officers, employees, agents, or volunteers, shall be in excess of ARE’s insurance and shall not contribute with it.
E. ARE’s Waiver of Subrogation.
The insurance policies required under this Article shall not prohibit ARE and ARE’s employees, agents, or sub-contractors from waiving the right of subrogation prior to a loss. ARE hereby waives all rights of subrogation against City.
F. Cancellations or Modifications to Coverage.
ARE shall not cancel, reduce, or otherwise modify the insurance policies required by this Article during the term of this Contract. The commercial general and automobile liability DocuSign Envelope ID: 54FD7A88-3C1B-4208-A13D-1201C007D265 940
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policies required under this Contract shall be endorsed to state that should the issuing insurer cancel the policy before the expiration date, the issuing insurer will endeavor to mail 30 days’ prior written notice to City. If any insurance policy required under this Article is canceled or reduced in coverage or limits, ARE shall, within two (2) Business Days (as defined in Section
8.12) of notice from the insurer, phone, fax or notify City via certified mail, return receipt requested, of the cancellation of or changes to the policy.
G. City Remedy for Noncompliance.
If ARE does not maintain the policies of insurance required under this Section in full force and effect during the term of this Contract, or in the event any of ARE’s policies do not comply with the requirements under this Section, City may either immediately terminate this Contract or, if insurance is available at a reasonable cost, City may, but has no duty to, take out the necessary insurance and pay, at ARE’s expense, the premium thereon. ARE shall promptly reimburse City for any premium paid by City, or City may withhold amounts sufficient to pay the premiums from payments due to ARE.
H. Evidence of Insurance.
Prior to the performance of Services under this Contract, ARE shall furnish the City Clerk with a certificate or certificates of insurance and all original endorsements evidencing and effecting the coverages required under this Article. The endorsements are subject to City’s approval. ARE may provide complete, certified copies of all required insurance policies to City.
ARE shall maintain current endorsements on file with the City Clerk. ARE shall provide proof to the City Clerk that insurance policies expiring during the term of this Contract have been renewed or replaced with other policies providing at least the same coverage. ARE shall furnish such proof at least two (2) weeks prior to the expiration of the coverages.
I. Indemnity Requirements not Limiting.
Procurement of insurance by ARE shall not be construed as a limitation of ARE’s liability or as full performance of ARE’s duty to indemnify City under this Contract.
J. Sub-contractor Insurance Requirements.
ARE shall require each of its sub-contractors that perform Services under this Contract to maintain insurance coverage that meets all of the requirements of this Article.
11. ANIMAL SHELTER LEASE AGREEMENT
By separate agreement, ARE has leased the City Animal Shelter property and structure from City by way of the agreement entitled “Ground Lease of Banning Animal Shelter Property,” dated March 23, 2021 (“Ground Lease”). It is the intent of the Parties that this Contract shall provide terms and conditions for the operation of the City Animal Shelter and for the provision of animal care and control services that are separate and additional to the provisions in the Ground Lease and that the provisions of this Contract and the Ground Lease shall be interpreted to provide that the provisions of both this Contract and the Ground Lease be DocuSign Envelope ID: 54FD7A88-3C1B-4208-A13D-1201C007D265 941
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given effect. In the event the terms of this Contract expressly conflict with the terms of the Ground Lease, the terms of the Ground Lease shall control.
12. EQUIPMENT AND VEHICLES
Except as otherwise specifically set forth in this Contract, ARE shall provide all equipment and materials required by ARE to perform its obligations under this Contract. With respect to equipment obtained by ARE in contemplation of this Contract, if City terminates Contract without cause, City shall be responsible for payment to ARE of the remaining obligation owed by ARE to third parties for equipment leased by ARE for the fulfillment of its obligations hereunder. A schedule of such equipment shall be prepared by ARE and attached to this Contract and made a part hereof. If ARE terminates the Contract or City terminates the Contract on grounds of a substantial breach, City shall be under no obligation for the equipment.
City is not hereby made a guarantor of ARE for any equipment it may lease. If upon the termination of the Contract, or earlier, City shall desire to take over ownership of the equipment, City shall give ARE written notice of such intent. City shall thereafter be responsible for all remaining payments on the lease, purchase, or lease-purchase of the equipment. In addition, with respect to any purchase or lease-lease-purchase of the equipment. In addition, with respect to any purchase or lease-purchase arrangement taken over by the City, the City shall pay over to ARE any positive difference in the sum of the payments remaining to be paid by the City and the depreciated value of the equipment to ARE, if any.
13. TERMINATION OF CONTRACT
In addition to the provisions of Section 23, either party, at any time may terminate this Contract without cause upon the giving of ninety (90) days prior written notice to the other of such intent to terminate.
14. INDEPENDENT CONTRACTOR
A. ARE is an independent contractor and not an employee of City. ARE shall have no power to incur any debt, obligation, or liability on behalf of City. All services provided pursuant to this Contract shall be performed by ARE or under its supervision. ARE will determine the means, methods, and details of performing the services. Any additional personnel performing services under this Contract on behalf of ARE shall also not be employees of City and shall at all times be under ARE’s exclusive direction and control. ARE shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Contract and as required by law. ARE shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
B. ARE shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from ARE’s personnel practices. City shall have the right to offset against the amount of any fees due to ARE under this Contract any amount due to DocuSign Envelope ID: 54FD7A88-3C1B-4208-A13D-1201C007D265 942
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City from ARE as a result of ARE’s failure to promptly pay to City any reimbursement or indemnification arising under this Section.
15. RELEASE OF NEWS INFORMATION
No news release, including photographs, public announcements, or confirmation of same, of any part of the subject matter of this Contract or any phase of any program hereunder shall be made without prior written approval of the City Manager or his or her designee.
16. CONFLICT OF INTEREST
A. No officer or employee of City shall have any direct or indirect financial interest in this Contract within the scope of Government Code section 1090, nor shall any such officer or employee make, participate in making, or use his or her official position to influence, any City decision relating to the Contract which has a material financial effect on his or her financial interests or the financial interests of any corporation, partnership or association in which he or she is, directly or indirectly, interested, in violation of any State statute or regulation.
ARE warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Contract.
B. ARE and its officers, employees, associates and sub-contractors, if any, shall comply with all conflict-of-interest statutes of the State of California applicable to ARE’s Services under this Contract, including the Political Reform Act (Gov. Code § 81000, et seq.) and Government Code Section 1090. During the term of this Contract, ARE may perform similar services for other clients; but ARE and its officers, employees, associates and subcontractors shall not, without the Contract Officer’s prior written approval, perform services for another person or entity for whom ARE is not currently performing services that would require ARE or one of its officers, employees, associates or sub-contractors to abstain from a decision under this Contract pursuant to a conflict-of-interest statute. ARE shall incorporate a clause substantially similar to this Section into any subcontract that ARE executes in connection with the performance of this Contract.
C. ARE represents, warrants, and agrees that it does not presently have, nor will it acquire during the term of this Contract, any interest direct or indirect, by contract, employment or otherwise, or as a partner, joint venture, or shareholder (other than as a shareholder holding a one percent (1%) or less interest in publicly traded companies) or affiliate with any business or business entity that has entered into any contract, subcontract or arrangement with City. Upon execution of this Contract and during its term, as appropriate, ARE shall upon written request, disclose in writing to City any other contractual or employment arrangement from which it receives compensation. ARE agrees not to accept any employment during the term of this Contract by any other person, business, or corporation which employment will or may likely develop a conflict of interest between City’s interests and the interests of third parties.
17. SUCCESSOR AND ASSIGNMENT
The services as contained herein are to be rendered by ARE and ARE shall not assign nor transfer any interest in this Contract without the prior written consent of City.
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18. COMPLIANCE WITH LAWS
The parties agree to be bound by applicable federal, state and local laws, regulations and directives as they pertain to the performance of this Contract. ARE otherwise specifically agrees that it shall conform to all laws with respect to the regulation of its operations hereunder with particular reference to the certification of its employees to perform such duties.
A violation of this provision shall constitute a substantial breach of this Contract.
19. NON-DISCRIMINATION
In the fulfillment of the program established under this Contract, either as to employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other terms of compensation, selection for training, including apprenticeship or participation in the program or the receiving of any benefits under the program, ARE agrees not to discriminate nor to allow any subcontractor to discriminate on the basis of race, color, creed, religion, natural origin, ancestry, sex, marital status or physical handicap.
20. SEVERABILITY
In the event that any provision herein contained is held to be invalid, void or illegal by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Contract and shall in no way affect, impair or invalidate any other provision contained herein. If any such provision shall be deemed invalid due to its scope or breadth, such provision shall be deemed valid to the extent of the scope or breadth permitted by law.
21. INTERPRETATION
No provision of this Contract is to be interpreted for or against either party because that party or that party’s legal representative drafted such provision, but this Contract is to be construed as if it were drafted by both parties hereto.
22. CALIFORNIA LAW
This Contract, and any dispute arising from the relationship between the Parties to this Contract, shall be interpreted, construed and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Contract shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and ARE covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
23. DISPUTES; DEFAULT
A. In the event that City determines ARE is in default under the terms of this Contract, City shall have no obligation or duty to continue compensating ARE for any Services performed after the date of default. In addition to the right to terminate pursuant to Section ___, if the City Manager determines that ARE is in default in the performance of any of the terms or DocuSign Envelope ID: 54FD7A88-3C1B-4208-A13D-1201C007D265 944
11303-0003\2517690v2.doc
conditions of this Contract, City may serve ARE with written notice of the default. ARE shall have thirty (30) calendar days after service upon it of the notice in which to cure the default by rendering a satisfactory performance. In the event that ARE fails to cure its default within such period of time, City may, notwithstanding any other provision of this Contract, terminate this Contract without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Contract.
B. In the event of termination pursuant to this Section, City may take over the services, and ARE shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to Contractor for the purpose of set-off or partial payment of the amounts owed City under Section __.
C. Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether or not arising out of this Contract): (i) any payment amount of which may be in dispute hereunder or which is necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, (ii) all amounts retained pursuant to the provisions of Section 4.8, (iii) all amounts for which City may be liable to third parties, by reason of Contractor’s acts or omissions in performing or failing to perform Contractor’s obligation under this Contract, and (iv) all payments due or that become due to Contractor during the period that Contractor or any of its sub-contractors fail to maintain any required insurance in full force and effect, until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City, as provided in Section
4.9, above. In the event that any claim is made by a third party, the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Contractor to insure, indemnify, and protect City as elsewhere provided herein.
24. ENTIRE AGREEMENT
Except for the Ground Lease, this Contract supersedes any and all other agreements, either oral or in writing, between this parties hereto with respect to the services of ARE to be performed for the City and contains all the covenants and agreements between the parties with respect to such services.
25. WAIVER
No breach of any provision hereof can be waived unless in writing. Waiver of any one breach of any provision shall not be deemed to be a waiver of any other breach of the same or any other provision hereof.
26. CONTRACT ADMINISTRATION, EVALUATION AND REVIEW
A. The City Manager or his/her designee are hereby made the Contract administrator for the City hereunder.
DocuSign Envelope ID: 54FD7A88-3C1B-4208-A13D-1201C007D265 945
DocuSign Envelope ID: 54FD7A88-3C1B-4208-A13D-1201C007D265 Grant Brubaker
83-0980475
Amber Schlieder
946
DocuSign Envelope ID: 54FD7A88-3C1B-4208-A13D-1201C007D265 947
A-1
11303-0003\2517690v2.doc
EXHIBIT "A"
City agrees to pay ARE a sum of $60,000.00 per year.
This amount is to be paid to ARE in equal quarterly installments due no later than the tenth (10) day of the new quarter. Payments shall begin on July 1, 2021.
DocuSign Envelope ID: 54FD7A88-3C1B-4208-A13D-1201C007D265 948
B-1
11303-0003\2517690v2.doc
EXHIBIT “B”
FEES, REVENUES AND DONATIONS
1. ARE shall collect and retain for operational expenses under this Contract, all revenues, fees and donations to the City’s Animal Shelter.
2. Fees may be charged as set by the City’s Animal Code, or by resolution of City, whichever is applicable, for the following services:
A. Spay/Neuter Deposit
B. Rabies Vaccination Deposit
C. Impound
D. Animal Boarding
Additional fees may be added to this list by amendment of the City’s Animal Code, or by adoption of a resolution of the City Council, as determined by the City.
3. Revenues may be collected by cash, check or credit card. Receipts shall be provided to all individuals making such payment. Copies of such receipts shall be recorded, and inventoried, and such receipts numbered sequentially.
4. All fees collected shall belong to ARE unless otherwise provided by the City’s Animal Code or the donor.
DocuSign Envelope ID: 54FD7A88-3C1B-4208-A13D-1201C007D265 949
950
951
952
953
A
REAnimalRescueInc
StatementofActivity
January-December2021
Total
Banning
$44,589
$1,575
$0
$7,570
$30,000
$0
$0
$51
$27
$800
$45
$0
$1,930
$7,630
$43,443
Revenue
Adoptions
Boarding/Reclaim
Contributedincome
Corporate&foundationgrants
Donationsdirectedbyindividuals
Governmentgrants&contracts
Grantsfromothernonprofits
TotalContributedincome$183,861.51
Services
TotalRevenue$630,771.18
GrossProfit$630,771.18
Expenditures
Advertising&marketing
Socialmedia
TotalAdvertising&marketing$780.05
Contract&professionalfees
Accountingfees
Legalfees
TotalContract&professionalfees$1,725.00
Food(animals)
Insurance
Medical
Occupancy
445,894.97
1,575.00
1,724.32
75,704.32
30,000.00
76432.87
-560.30
510.75
269.30
1,200.00
450.00
75.00 19,303.38
15,259.44
289,618.57
$83,735
954
Rent
Utilities
Total Occupancy $ 62,288.29
Office expenses
Bank fees & service charges
Internet & TV services
Memberships & subscriptions
Office supplies
Small tools & equipment
Software & apps
Total Office expenses $ 13,497.75
Payroll expenses
FICA tax
Salaries & wages
Total Payroll expenses $ 82,475.48
Repairs & maintenance
Supplies (Building)
Supplies & materials
Total Supplies $ 108,755.11
Vehicle expenses
Vehicle gas & fuel
Vehicle registration
Vehicle wash & road services
Total Vehicle expenses $ 5,532.11
Total Expenditures $ 600,982.91
Net Operating Revenue $ 29,788.27
Net Revenue $ 29,788.27
28,400.00
33,888.29
131.55
317.76
-592.80
686.44
5,875.18
500.00
6,579.62
2,650.98
79,824.50
1,747.73
91,035.81
17,719.30
4,760.16
456.95
15.00 300.00
$0
$0
$32
$0
$69
$1,175
$500 tools purcahsed specifically for Banning
$1,316 Includes CC processing fees
$31,930
$1,748
$91,036 Kennels, buildings, etc.
$17,718 materials needed to repair/build
$476
$91
$0
$0
$200,016
-$116,281
955
A
REAnimalRescueInc
StatementofActivity
January-March,2022
BanningOnly
Total
Revenue
Adoptions
Boarding
Contributedincome
Corporate&foundationgrants
Donationsdirectedbyindividuals
Governmentgrants&contracts
Grantsfromothernonprofits
TotalContributedincome$51,693.72
OwnerSurrenderFee
ReclaimFees
SalesofProductRevenue
Services
TotalRevenue$126,597.48
GrossProfit$126,597.48
Expenditures
Advertising&marketing
Socialmedia
TotalAdvertising&marketing$125.00
Contract&professionalfees
Food(forvolunteers)
Insurance
Medical
Occupancy
Rent
Utilities
65,291.75
980.00
3,714.27
24,299.26
15,000.00
8,680.19
2,300.00
3,130.00
1,767.01
1,435.00
125.00
850.00
589.73
3,306.67
59,574.81
9,000.00
8,288.39
$43,093
$980
$16,038
$15,000
$0
$31,038
$1,518
$3,130
$0
$0
$79,758
$0
$0
$83
$561
$389
$2,182
$39,319
$0
$0
$0
$79,758
956
Total Occupancy $ 17,288.39
Office expenses
Bank fees & service charges
Memberships & subscriptions
Office supplies
Shipping & postage
Software & apps
Total Office expenses $ 2,593.39
Payroll expenses
Salaries & wages
Total Payroll expenses $ 24,348.80
Repairs & maintenance
Supplies (Pet Food, Litter, Potty Pads, Etc)
Vehicle expenses
Vehicle registration
Total Vehicle expenses $ 1,606.04
Total Expenditures $ 128,223.26
Net Operating Revenue $ (1,625.78)
Net Revenue $ (1,625.78)
150.08
27.76 226.28
115.25
18.10 2,055.92
24,348.80
661.29
17,279.14
1,190.04
416.00
$99
$18
$149
$76
$12
$1,357
$0
$16,070
$661
$11,404
$785
$275
$ 6,316.21
$73,442
957
A
REAnimalRescueInc
StatementofActivity
April-June,2022
Total
BanningOnly
$82,594
Revenue
Adoptions
Boarding
Contributedincome
Corporate&foundationgrants
Donationsdirectedbyindividuals
Governmentgrants&contracts
Grantsfromothernonprofits
TotalContributedincome$61,353.12
OwnerSurrenderFee
ReclaimFees
SalesofProductRevenue
Services
TotalRevenue$125,920.95
GrossProfit$125,920.95
Expenditures
Advertising&marketing
Socialmedia
TotalAdvertising&marketing$4.00
Contract&professionalfees
Food(forvolunteers)
Insurance
Medical
Occupancy
Rent
Utilities
TotalOccupancy$13,867.64
56,509.00
780.00
1,536.18
38,689.23
15,000.00
6,127.71
1,725.00
3,466.00
1,101.83
986.00
4.00 185.25
552.59
2,288.76
57,159.43
6,500.00
7,367.64
$37,296
$780
$25,535
$15,000
$518
$3,466
$0
$0
$122
$365
$1,511
$37,725
958
Office expenses
Bank fees & service charges
Memberships & subscriptions
Office supplies
Printing & photocopying
Software & apps
Total Office expenses $ 9,555.27
Payroll expenses
Salaries & wages
Total Payroll expenses $ 33,730.00
Repairs & maintenance
Supplies (Pet Food, Litter, Potty Pads, Etc)
Supplies & materials
Total Supplies (Pet Food, Litter, Potty Pads, Etc) $ 35,684.69 Vehicle expenses
Vehicle gas & fuel
Vehicle insurance
Vehicle rental
Total Vehicle expenses $ 3,128.71
Total Expenditures $ 156,406.34
Net Operating Revenue $ (30,485.39)
Net Revenue $ (30,485.39)
8,008.12
396.28
37.45 147.34
966.08
33,730.00
250.00
33,845.21
1,839.48
1,464.17
634.86
651.00
378.68
$5,285
$262
$25
$97
$638
$22,262
$250
$22,338
$1,839
$966
$419
$250
$94,353
$ (11,759)
959
A
REAnimalRescueInc
StatementofActivity
July-September,2022
Total
BanningOnly
$74,254
Revenue
Adoptions
Boarding
Contributedincome
Corporate&foundationgrants
Donationsdirectedbyindividuals
Governmentgrants&contracts
Grantsfromothernonprofits
TotalContributedincome$55,382.28
OwnerSurrenderFee
ReclaimFees
SalesofProductRevenue
Services
TotalRevenue$138,866.21
GrossProfit$138,866.21
Expenditures
Advertising&marketing
Socialmedia
TotalAdvertising&marketing$877.86
Contract&professionalfees
Food(forvolunteers)
Insurance
Medical
Occupancy
Rent
Utilities
TotalOccupancy$12,722.89
74,627.00
740.00
1,700.00
28,065.26
15,000.00
10,617.02
3,200.00
2,125.00
1,421.93
1,370.00
125.92
751.94
4.00 326.35
2,987.20
57,117.62
10,500.00
2,222.89
$49,254
$740
$18,523
$1,500
$0
$2,112
$2,125
$0
$0
$83
$496
$3
$215
$1,972
$37,698
$6,930
$1,467
$8,397
960
Office expenses
Bank fees & service charges
Memberships & subscriptions
Office supplies
Software & apps
Total Office expenses $ 1,038.51
Payroll expenses
Salaries & wages
Total Payroll expenses $ 27,739.00
Repairs & maintenance
Supplies (Pet Food, Litter, Potty Pads, Etc)
Supplies & materials
Total Supplies (Pet Food, Litter, Potty Pads, Etc) $ 36,125.50 Vehicle expenses
Vehicle gas & fuel
Total Vehicle expenses $ 2,714.35
Total Expenditures $ 141,991.97
Net Operating Revenue $ (3,125.76)
Net Revenue $ (3,125.76)
34.48 104.79
424.22
46.94 428.08
27,739.00
338.69
36,070.36
55.14 1,190.04
1,524.31
$23
$69
$280
$31
$283
$18,308
$338
$23,806
$36
$785
$1,006
$102,226
$ (27,972)
961
A
REAnimalRescueInc
StatementofActivity
October-December,2022
Total
BanningOnly
$47,908
$525
$5,292
$32,947
$15,000
$0
$198
$2,230
$0
$0
$660
$106
$821
$156
$1,007
$30,578
$6,930
Revenue
Adoptions
Boarding
Contributedincome
Corporate&foundationgrants
Donationsdirectedbyindividuals
Governmentgrants&contracts
Grantsfromothernonprofits
TotalContributedincome$143,095.98
OwnerSurrenderFee
ReclaimFees
SalesofProductRevenue
Services
TotalRevenue$220,723.26
GrossProfit$220,723.26
Expenditures
Advertising&marketing
Socialmedia
TotalAdvertising&marketing$1,160.42
Contract&professionalfees
Legalfees
TotalContract&professionalfees$1,244.00
Food(forvolunteers)
Insurance
Medical
Occupancy
Rent
72,588.00
525.00
8,017.69
49,919.37
15,000.00
70,158.92
300.00
2,230.00
1,084.28
900.00
1,000.43
159.99
1,244.00
237.11
1,525.81
46,330.65
10,500.00
$104,100
962
Utilities
Total Occupancy $ 18,799.14
Office expenses
Bank fees & service charges
Memberships & subscriptions
Office supplies
Software & apps
Total Office expenses $ 3,369.33
Payroll expenses
Salaries & wages
Total Payroll expenses $ 46,130.50
Repairs & maintenance
Supplies (Pet Food, Litter, Potty Pads, Etc)
Supplies & materials
Total Supplies (Pet Food, Litter, Potty Pads, Etc) $ 37,794.93 Vehicle expenses
Vehicle gas & fuel
Total Vehicle expenses $ 1,785.06
Total Expenditures $ 161,332.82
Net Operating Revenue $ 59,390.44
Net Revenue $ 59,390.44
8,299.14
2,251.35
415.28
18.62 684.08
46,130.50
2,955.87
36,152.93
1,642.00
1,190.04
595.02
$5,477
$1,486
$274
$12
$451
$30,446
$2,955
$23,861
$1,084
$785
$393
$107,484
$ (3,384)
963
ARE Animal Rescue Inc
Statement of Activity
January - March, 2023
Total Banning Only
$35,509
$350
$22,153
$0 *Payment not received until April
$485
$2,185
$0
$0
$0
$166
$215
$165
$7,500
$718
$2,630
$32,217
Revenue
Adoptions
Boarding
Contributed income
Corporate & foundation grants
Donations directed by individuals
Government grants & contracts
Grants from other nonprofits
Total Contributed income $ 40,068.34
Owner Surrender Fee
Reclaim Fees
Sales
Sales of Product Income
Sales of Product Revenue
Total Revenue $ 98,404.68
Gross Profit $ 98,404.68
Expenditures
Advertising & marketing
Social media
Total Advertising & marketing $ 576.26
Contract & professional fees
Legal fees
Total Contract & professional fees $ 7,750.00
Food (for volunteers)
Insurance
Medical
Occupancy
53,801.00
350.00
454.30
33,564.95
0.00 6,049.09
735.00
2,185.00
590.00
65.25 610.09
251.12
325.14
250.00
7,500.00
1,087.63
3,985.01
48,813.18
$60,682
964
R
ent
Utilities
TotalOccupancy$19,443.17
Officeexpenses
Bankfees&servicecharges
Internet&TVservices
Memberships&subscriptions
Software&apps
TotalOfficeexpenses-$1,074.50
Payrollexpenses
FICAtax
Salaries&wages
TotalPayrollexpenses$37,214.50
Repairs&maintenance
Supplies(PetFood,Litter,PottyPads,Etc)
Supplies&materials
TotalSupplies(PetFood,Litter,PottyPads,Etc)$29,700.46
Travel
Hotels
TotalTravel$301.99
Vehicleexpenses
Vehiclegas&fuel
Vehicleregistration
Vehiclerental
TotalVehicleexpenses$2,961.60
TotalExpenditures$150,819.30
NetOperatingRevenue-$52,414.62
NetRevenue-$52,414.62
12,000.00
7,443.17
65.53 -2,431.26
203.72
1,087.51
101.00
37,113.50
60.00 24,010.28
5,690.18
8.00 293.99
1,225.13
1,195.14
400.66
140.67
$7,920
$4,912
$43
-$1,605
$134
$718
$67
$24,495
$60
$15,847
$3,756
$194
$809
$789
$264
$93
$102,106
$(41,424)
965
966
A
REAnimalRescueInc
StatementofActivity
April-June,2023
Total
BanningOnly
$17,954
$200
$25,852
$15,000
$0
$0
$180
$0
$0
$17
$0
$1,816
$979
$1,846
$18,505
$7,920
$1,713
Revenue
Adoptions
Boarding
Contributedincome
Donationsdirectedbyindividuals
Governmentgrants&contracts
Grantsfromothernonprofits
TotalContributedincome$55,853.07
OwnerSurrenderFee
ReclaimFees
SalesofProductIncome
SalesofProductRevenue
TotalRevenue$83,908.73
GrossProfit$83,908.73
Expenditures
Advertising&marketing
Contract&professionalfees
Fundraisingfees
TotalContract&professionalfees$1,816.00
Food(forvolunteers)
Insurance
Medical
Occupancy
Rent
Utilities
TotalOccupancy$14,595.64
Officeexpenses
27,203.76
200.00
39,169.25
15,000.00
1,683.82
150.00
180.00
77.19 244.71
25.46 1,816.00
1,482.90
2,797.53
28,038.33
12,000.00
2,595.64
$59,186
967
Bank fees & service charges
Internet & TV services
Memberships & subscriptions
Software & apps
Total Office expenses -$ 575.89
Payroll expenses
FICA tax
Salaries & wages
Total Payroll expenses $ 43,654.22
Supplies (Pet Food, Litter, Potty Pads, Etc)
Supplies & materials
Total Supplies (Pet Food, Litter, Potty Pads, Etc) $ 17,906.23 Uncategorized Expense
Vehicle expenses
Vehicle gas & fuel
Total Vehicle expenses $ 1,874.93
Total Expenditures $ 111,640.35
Net Operating Revenue -$ 27,731.62
Net Revenue -$ 27,731.62
112.83
-1,050.79
74.94 287.13
69.72 43,584.50
14,242.22
3,664.01
25.00 1,190.04
684.89
$74
-$694
$49
$190
-$380
$46
$28,766
$9,400
$2,418
$17
$785
$452
$1,237
$75,157
-$15,971
968
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Lincoln Bogard, Administrative Services Director MEETING DATE: December 12, 2023
SUBJECT: Discussion Regarding the Selection Process for the Citywide Forensic Investigation of Treasury Functions Request for Proposals (RFP) RECOMMENDATION:
Provide direction to staff regarding Council's preferred alternative for the RFP grading and selection process.
BACKGROUND:
During the Special City Council Meeting on August 15, 2023, the Administrative Services Director informed Council about a $8.5 to $9.0 million cash shortfall in the Electric Enterprise as of June 30, 2023.
Loans from other funds in the City (Due To-From) were needed to bring unrestricted cash to $0 since no aggregate fund can have negative cash on the financial statements. During that meeting, several community members, electric department staff, and Councilmembers requested a Citywide forensic investigation.
The City Manager and Administrative Services Director agreed that such an investigation would be beneficial if Council agreed to proceed. On September 12, 2023, staff brought the results of the Phase 1 forensic investigation of the Electric Enterprise negative cash with the recommendation to conduct further Phase 2 investigation services. Staff recommended that Council approve Phase 2 work and for the City to issue an RFP for a Citywide Forensic Investigation of Treasury Functions (with a focus on cash). That focus seemed to be the most reasonable to staff since cash is where any impropriety would generally reveal itself. Council agreed and approved both requests.
JUSTIFICATION:
The RFP has been issued and closed on November 28, 2023. Six firms submitted proposals to provide the requested services. Staff originally intended to have Councilmembers grade the proposals and select the preferred firm. Upon the advice of counsel and further research into the method that Council has previously selected City Attorneys, staff determined that Council should now provide direction regarding the scoring and selection process. Alternative 2. below is the method that Council has historically used for approval of Council mandated selections such as City Attorney.
While unusual in practice, due to the nature of this contract, staff believes that the final selection by Council is appropriate.
FISCAL IMPACT:
To be determined.
ALTERNATIVES:
969
1. Direct staff to request all Pass Area Finance Directors and/or Deputy Directors to provide scoring of the proposals and have the three top ranked firms present to Council in a Special City Council Meeting for final selection.
2. Direct staff to provide internal scoring of the proposals and have the three top ranked firms present to Council in a Special City Council Meeting for final selection.
3. Other alternative as directed by Council.
970
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Doug Schulze, City Manager
MEETING DATE: December 12, 2023
SUBJECT: Consideration of Resolution 2023-187, Approving Exclusive Negotiating Agreement with Industrial VI Enterprises, LLC (Hillwood) for Banning Municipal Airport Properties
RECOMMENDATION:
Adopt Resolution 2023-187.
BACKGROUND:
The City Council previously authorized the City Manager to negotiate terms for an Exclusive Negotiating Agreement with Hillwood. During the past several months, City and Hillwood representatives have worked to reach agreement. One of the major concerns raised by Hillwood, as well as previous developers interested in the property, is the timeframe likely required to entitle the property for development. During this timeframe, members of the City Council could change, which could also result in a change of direction regarding development of the airport property. This uncertainty is a risk for the developer. The terms of the Exclusive Negotiating Agreement reflect Hillwood's concerns related to the risk of changes to the City Council as well as unknown outcome of efforts to close Banning Municipal Airport.
The term of the ENA will be five calendar years with developer option to extend the ENA for up to two (2) one-year extension periods. In exchange for exclusive negotiation rights, Hillwood will pay the City ENA fees. The ENA fee is $500,000 and is due within 5 days after the parties agree to the terms of a nonbinding term sheet. A payment of $250,000 will be made on the second anniversary of the effective date of the ENA and on each subsequent anniversary of the effective date of the ENA.
During the term of the ENA, the City and Hillwood will negotiate a proposed non-binding term sheet and an agreement for a single or multiple Ground Leases. The ENA does not commit the City to approve any term sheet, agreement, or ground lease.
JUSTIFICATION:
In 2016, HdL Companies was hired to conduct an Airport Feasibility Study. The objective of the Feasibility Study was to analyze and evaluate the Banning Municipal Airport, including its effectiveness as a land use, along with exploring the possibility of closing down the airport operation and looking at the 'highest and best' land use for the future. The Study found given the location of the airport property in Banning, along with current and near-term market development conditions, the highest and best use for the Banning’s airport property is industrial-not as an airport. Following the Study, the City Council adopted Resolution 2017-44, establishing the goal to pursue closure of the airport. During the past three years, the City has engaged with potential developers to lease or sell the property for development. 971
FISCAL IMPACT:
The ENA fee will generate $1,250,000 during the next five years and an additional $500,000 if the ENA is extended.
ALTERNATIVES:
1. Adopt Resolution No. 2023-187, as written;
2. Adopt Resolution No. 2023-187, with modification(s);
3. Do not adopt Resolution No. 2023-187.
ATTACHMENTS:
1. Resolution 2023-187, Hillwood.docx
2. HillwoodBanning - ENA 16955001 v12.docx
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Resolution 2023-187
RESOLUTION 2023-187
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,
APPROVING AN EXCLUSIVE NEGOTIATING AGREEMENT WITH INDUSTRIAL VI
ENTERPRISES, LLC (HILLWOOD) FOR BANNING MUNICIPAL AIRPORT PROPERTIES (APNs 532-130-011, 012, AND 018; 532-140-003; 532-150-002, 003 AND 004; 541-240-009 AND 541-250-009)
WHEREAS, Industrial VI Enterprises is a Delaware Limited Liability Company based in Dallas, Texas; and
WHEREAS, the City of Banning is the owner of the property located at 200 S.
Hathaway Street, Banning, CA 92220 (APNs 532-130-011, 012 and 018; 532-140-003; 532-150-002, 003 and 004; 541-240-009 and 541-250-009); and WHEREAS, the proposed Exclusive Negotiating Agreement would allow Industrial VI Enterprises (Hillwood) the exclusive negotiating rights to the property for five years, allowing them to complete necessary due diligence on the site; and WHEREAS, the City is interested in development of the site, which could bring needed employment and revenue to the City.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
SECTION 1. The City Council hereby approves the attached Exclusive Negotiating Agreement for 200 S. Hathaway Street, Banning, CA 92220.
SECTION 2. The City Council hereby authorizes and directs the City Manager (“Authorized Representative”) to sign the Exclusive Negotiating Agreement with Industrial VI Enterprises, LLC on behalf of the City Council.
PASSED, APPROVED AND ADOPTED this 12th day of December 2023.
Mayor
City of Banning
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Resolution 2023-187
ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM AND
LEGAL CONTENT:
Serita R. Young, City Attorney
Richards, Watson & Gershon
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Resolution 2023-187
CERTIFICATION:
I, Caroline Patton, Deputy City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2023-187, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 12th day of December 2023 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
975
Resolution 2023-187
EXHIBIT A
Exclusive Negotiation Agreement between City of Banning and Industrial VI Enterprises, LLC
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EXCLUSIVE NEGOTIATING AGREEMENT
(Hillwood)
This EXCLUSIVE NEGOTIATING AGREEMENT (“ENA”) is dated as of December _____, 2023, and is entered into by and between the CITY OF BANNING (“City”), and INDUSTRIAL VI ENTERPRISES, LLC, a Delaware limited liability company (“Developer”).
City and Developer are sometimes individually referred to herein as a “Party” and are sometimes collectively referred to herein as the “Parties.”
R E C I T A L S
A. City owns the land in the City of Banning, California described on Exhibit “A” (the “Property”), a portion of which is currently used as the Banning Municipal Airport. The development and use of the Property for the Project is dependent on closure of the Banning Municipal Airport, which closure must be approved by the federal government.
B. Developer desires to apply for various entitlements for a mixed use project for the Property including a movie studio (the “Studio Parcel”) and light industrial warehouse development, with multiple buildings (the “Warehouse Parcels”, and collectively with the Studio Parcel, the “Project”), and enter into an option agreement (“Option Agreement”) with City for a single or multiple ground leases (each, a “Ground Lease”) with City for the Property and Warehouse Parcels. Developer and City contemplate that a movie studio would be developed on approximately 30 acres of APNs 541-240-009 and 541-250-009). The terms and conditions relating to the Studio Parcel shall be further detailed in the Option Agreement.
C. It is contemplated that each Ground Lease (the form of which would be attached to the Option Agreement as an exhibit) would have a term of 55 years, and that extensions and rights to purchase the Property will, be addressed in the Ground Lease(s).
D. Developer and City will incur significant costs in preparing California Environmental Quality Act (“CEQA”) documents, processing entitlements, and negotiating the Option Agreement (and Ground Lease).
E. Developer has requested that City negotiate with Developer on an exclusive basis for a specified period of time to establish the terms and conditions of the entitlements and Option Agreement (and Ground Lease), and in consideration of that exclusive negotiating right, Developer will provide City with an ENA fee and other benefits as provided in this ENA.
NOW, THEREFORE, the Parties hereto agree as follows:
1. Term. The term of this ENA shall commence on the date hereof and shall end on the earlier of: (i) the date that is five (5) calendar years after the date of this ENA, subject to extension as hereinafter set forth, or (ii) the date on which City or Developer terminates this ENA as provided in Section 3 below (the “ENA Period”).
2. Extensions.
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(a) The City Manager may extend the term of this ENA for up to six (6) months by written notice to Developer provided all of the terms of the Option Agreement (including the form of Ground Lease) shall have been negotiated and shall be acceptable to City staff (it being contemplated that such extension may be necessary to complete compliance with CEQA and City entitlements for the Project and/or to complete the process of the closure of the airport on the Property).
(b) Developer shall have the right to extend the term of this ENA for up to two (2) one-year extension periods, by written notice to City given on or before the date that is six (6) months prior to the expiration of the then-current term, and paying to City concurrently with such notice, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) as a nonrefundable extension fee (for each extension).
3. Termination.
(a) The City Manager may terminate this ENA by written notice to Developer if Developer should fail to comply with or perform any material provisions of this ENA and such failure is not cured within thirty (30) days after City Manager’s delivery of written notice to Developer; provided that if such failure is of the nature that it cannot reasonably be cured within such thirty (30) day period, such cure period shall be extended for as long as Developer in good faith commences curative efforts within thirty (30) days of its receipt of such notice from the City Manager and diligently and expeditiously continues its curative efforts. (b) Developer may terminate this ENA by written notice to City at any time if Developer, in its sole and absolute discretion, determines that it does not wish to pursue the Project any further. However, in the event of such termination, no ENA Fees shall be returned to Developer, except that provided Developer is not then in default under this ENA, City shall return a pro-rata portion of the $250,000 annual ENA Fee described in Section 5(b)(i) and (ii) below that Developer shall have prepaid for the one year period in which the termination occurs (based on the number of days in such annual period after the date of termination, divided by 365).
4. City Covenant Regarding Exclusivity. During the ENA Period, City shall not negotiate with any person or entity other than Developer for the sale, lease, financing, or development of the Property or any portion thereof, nor shall City solicit or entertain bids or proposals to do any of the same.
5. Non-Binding Term Sheet; ENA Fees; CEQA Costs.
(a) The parties intend to negotiate, within six (6) months after the date of this ENA, a non-binding term sheet acceptable to both parties as the basis for negotiating the Option Agreement; however, neither party shall be bound by any terms unless and until the Option Agreement is negotiated, finalized, and executed, after or concurrently with compliance with CEQA.
(b) In exchange for the exclusivity rights granted to Developer in this ENA (in a very competitive real estate market for warehouse space, and for commercial property generally), 978
Developer shall pay the sums described below (collectively, the “ENA Fees”), which shall not be refundable, except as expressly provided in Section 3(b) above:
(i) Upon the parties indicating that such term sheet is acceptable (which may be communicated by City by email to Scott Morse [[email protected]] of Developer), Developer shall, within five (5) business days thereafter, deliver the amount of $250,000.00 (as an initial ENA Fee) to City, which payment shall be deemed applicable to the first year of this ENA.
(ii) On or before the first anniversary of the date of this ENA during the initial term of this ENA, and on each subsequent anniversary of the date of this ENA, Developer shall deliver the amount of $250,000.00 (as additional ENA Fees) to City. (c) Developer shall reimburse City for an aggregate amount of up to $20,000 of the City’s actual, out of pocket legal fees incurred in negotiating this ENA, the Term Sheet, Option Agreement and Ground Lease (the “Legal Fee Reimbursement”). Developer shall pay the Legal Fee Reimbursement to City within ten (10) days after City delivers to Developer reasonable evidence of such incurred legal fees, including, without limitation, paid invoices. (d) In addition to the ENA Fees, Developer shall pay for all of the CEQA consultants hired by Developer on behalf of the City as well as the City’s out of pocket costs and expenses paid to City staff and attorneys, all to the extent in connection with the City’s CEQA compliance related to this ENA and the transactions contemplated by the Option Agreement and Ground Lease (the “CEQA Reimbursement”), provided that Developer’s CEQA Reimbursement obligation shall not exceed $500,000 in the aggregate. If City reasonably believes that the CEQA Reimbursement will exceed the amount of $500,000, the City shall give Developer advance notice to that effect, and City and Developer agree to negotiate in good faith regarding provisions for payment of further CEQA costs, but Developer shall have the right to refuse to make further payments. Developer shall pay the applicable portions of the CEQA Reimbursement to City on a monthly basis, within ten (10) days after City delivers to Developer reasonable evidence of such incurred costs and expenses, including, without limitation, paid invoices to City attorneys.
6. Diligence Deadline.
(a) Until the date that is one hundred and eighty (180) days after the date of this ENA, as may be extended in writing for cause by the City Manager by up to an additional ninety (90) days (the “Due Diligence Deadline”), Developer shall have the right and obligation to inspect the Property and title to the Property (including completing a survey, and completing environmental/hazmat inspections and reports), and document the City staffs’ willingness to recommend approval by the City Council of relocation of any City of Banning recorded and unrecorded easements that could materially interfere with Developer’s contemplated development, and the City staffs’ willingness to recommend City Council approval (short of condemnation) to relocate third party easements that materially interfere with Developer’s contemplated development. If Developer does not approve the condition of title or the condition of the Property, then Developer may terminate this ENA by written notice to City Manager by the Due Diligence Deadline.
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(b) Developer shall also be entitled to inspect the Property and title to the Property after such Due Diligence Deadline for purposes of confirming that there shall have been no material change in title matters or physical condition prior to its execution of the Option Agreement and prior to its execution of the Ground Lease(s). (c) If Developer does not so terminate this ENA and enters into the Option Agreement, then Developer shall have no right under the Option Agreement or Ground Lease to terminate the Option Agreement or Ground Lease as a result of any such title or survey matter, or any physical condition of the Property, except for material changes to such title or physical condition that occur after the completion of Developer’s title and physical condition reviews/investigations prior to the execution of the Option Agreement and Ground Lease and which are not caused by Developer or its contractors.
(d) Concurrently with its execution of this ENA, Developer and City shall also execute and deliver a counterpart of the Right of Entry Agreement in the form attached hereto as Attachment No. 3.
7. Confidentiality of Information.
(a) Any information provided by Developer to City, including, without limitation, financial reports, proformas and other financial projections (whether in written, graphic, electronic or any other form) (collectively, “Confidential Information”) shall be subject to the provisions of this Section 7.
(b) Subject to the terms of this Section 7, City shall prevent disclosure of Confidential Information to any third parties, except as may be required by the California Public Records Act (Government Code Section 7920.000 et seq.) or other applicable local, state, or federal law (“Public Disclosure Laws”). Notwithstanding the preceding sentence, City may disclose Confidential Information to its officials, employees, agents, attorneys, and advisors to the extent necessary to carry out the purpose for which the Confidential Information was disclosed. (c) If the City becomes subject to a requirement by law, regulation, deposition question, interrogatory, Public Records Act request, Freedom of Information Act request, other type of request for information or documents, subpoena, civil investigative demand, or similar process (collectively, “Requirement”) to disclose any Confidential Information, the City will, prior to producing any Confidential Information, notify Developer of the existence, terms, and circumstances of such Requirement(s) within five (5) calendar days of receiving such Requirement(s) so that Developer may seek an appropriate protective order. If the City and the Developer do not agree that the document is exempt from disclosure, the Developer may commence a “reverse” Public Records Act lawsuit to preclude the City’s disclosure of the communication, and the City shall, to the extent supported by the law and the facts, invoke all extensions or excused delay legally available to the City under the Public Records Act and applicable law before producing such privileged information/document so as to afford Developer as much time as possible to file a “reverse” Public Records Act lawsuit. If the City is subject to a Requirement and has complied with the notification and cooperation obligations described in the preceding sentence, is compelled, in the opinion of its legal counsel, to disclose privileged information or else violate the law or stand liable for contempt or other substantial penalty, the 980
City shall furnish only that portion of the Confidential Information that is legally required pursuant to the terms of such Requirement as modified by any protective order or “reverse” Public Records Act lawsuit. If the above time limits conflict with the time within which response to discovery or information requests must be made under applicable law, then the Parties shall act to provide the notification contemplated by this paragraph as soon as possible. (d) In the event that the City is subject to a Requirement and, based upon an objection received from the Developer, the City does not produce the requested information, the Developer’s indemnity obligations as set forth in this ENA shall extend to the defense of the City if an action, claim, or liability arises or results from the City’s refusal to release information withheld at the Developer’s request.
(e) The restrictions set forth in this Section 7 shall not apply to Confidential Information to the extent such Confidential Information (i) is now, or hereafter becomes, through no act or failure to act on the part of City, publicly known or available, (ii) is known by City at the time of receiving such information as evidenced by City’s public records, (iii) is independently developed by City without any breach of this ENA and without any use of, or access to, City’s Confidential Information as evidenced by City’s records, or (iv) is the subject of a written permission to disclose provided by Developer to City. The provisions of this Section 7 shall survive the termination of this ENA.
8. Indemnity for ENA Challenges.
(a) Developer shall indemnify and defend City, and its officers, directors, members, employees, agents and contractors (each an “Indemnified Party” and collectively “Indemnified Parties”) from and against any and all claims and causes of action (including reasonable legal fees and costs), losses, or liabilities, in law or equity, or alleged by any third parties arising directly out of, or resulting directly from, any and all CEQA-related and nonCEQA-related litigation, lawsuits, claims, or causes of action challenging the City’s execution of this ENA (a “ENA Challenge”), and including attorney’s fees and costs arising out of the City’s approval of the ENA, provided that no Indemnified Party shall be entitled to indemnification under this Section 8 for matters to the extent caused by the gross negligence, fraud or willful misconduct of such Indemnified Party. Notwithstanding the foregoing, Developer may alternatively elect (in its sole and absolute discretion and at any time) to terminate its pursuit of the Project rather than defend the CEQA Challenge. In addition, Developer shall fully indemnify the City and shall pay any award of attorney’s fees or costs that may be awarded against the City or that the City may be required to pay as a result of a court order in, or settlement of, the ENA Challenge, provided that City shall not be entitled to indemnification under this Section 8 for matters to the extent caused by the gross negligence, fraud or willful misconduct of City. (b) Developer shall reimburse the City for all costs (including court costs) and attorney’s fees that the City may be required by a court to pay as a result of the ENA Challenge, as well as attorney’s fees and costs (including court costs) incurred by the City in its defense of the ENA Challenge, with counsel of the City’s reasonable choice. The City’s use of the City Attorney’s office to defend the City in the Action shall not relieve Indemnitor of its obligations under this ENA.
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(c) Developer and City shall endeavor to provide the defense of the ENA Challenge in a cost-efficient manner and agree that they shall coordinate and cooperate in their defense activities. As used in this ENA, cooperation does not include the City’s having to take any action or make any decision or not take any action or refrain from making any decision that the City does not believe, in the exercise of its good faith judgment, is in its own best interest.
Unless expressly provided to the contrary, nothing in this ENA shall be construed in a manner that requires the City to exercise its discretion in a particular manner. The Parties will further coordinate their activities, to the extent reasonable and feasible, in a manner that will preserve applicable attorney-client privileges and work product privileges with respect to any legal research or other work product prepared in connection with the ENA Challenge; provided, however, that neither Party will have any right to or interest in any reports or other attorney-client privileged materials prepared by the other Party’s attorneys in connection with the ENA Challenge. (d) City agrees to give prompt notice to Developer with respect to any suit filed or claim made against City no later than the earlier of (i) ten (10) days after valid service of process as to any filed suit, or (ii) immediately upon the City’s receipt of a petitioner’s election to prepare the administrative record or any notice of a case management conference to discuss the administrative record pursuant to Public Resources Code section 21167.6(b), and City shall not respond to any such petitioner election or notice of case management conference without first notifying Developer in writing and affording Developer a reasonable amount of time to confer with City regarding such response, or (iii) fifteen (15) days after receiving written notification of the assertion of such claim, which City has good reason to believe is likely to give rise to a claim for indemnification under this Section 8 by the Developer. The provisions of this Section 8 shall survive the termination of this ENA.
9. Economic Subsidy Statutes and Prevailing Wages Statutes. (a) Developer acknowledges that material financial assistance by City to the Project (including, if applicable, charging rent under the Ground Lease that is less than fair market rent) will require: (i) a public hearing and subsidy report under California Government Code Section 53083 or 53083.1; and (ii) that Developer pay prevailing wages for the applicable portion of the construction of the Project under California Labor Code Section 1720 et seq. (b) If such prevailing wage requirement applies, then Developer shall be required to expressly covenant in the Ground Lease to pay such prevailing wages, to the extent applicable. In any event, the Ground Lease shall include an obligation of Developer and ground lessee to defend and indemnify City with respect to claims, liabilities, damages, costs and expenses arising out of any failure by such ground lessee to pay any required prevailing wages.
10. Specific Developer and City Tasks.
(a) In exchange for City holding the Property off the market and negotiating exclusively with Developer, and in order to permit the preparation and revision of the Option Agreement (and Ground Lease) by City staff and counsel:
(1) Developer shall deliver the materials and information identified on Attachment No. 1 attached hereto to City within the times set forth on Attachment No. 1; and 982
(2) On or before the first business day of each January and July, Developer shall provide a written report to City describing in reasonable detail Developer’s other activities with respect to the Project during the prior six (6)-month period (i.e., 6-month period preceding the date of the report).
(b) City shall perform City tasks described on Attachment No. 2.
11. CEQA/NEPA Compliance. City and Developer acknowledge that all applicable requirements of CEQA (and if applicable, NEPA in conjunction with the airport closure) must be met in order for City to approve Project entitlements and for City to approve the entitlements, the Option Agreement (with Ground Lease(s)) and other approvals required for the Project (including a general plan amendment, a zoning amendment, a tentative parcel map, and design review), and that this may require various reports and/or analyses (collectively, the “CEQA Documents”). City will, at its cost, fully cooperate with Developer in Developer’s preparation of CEQA Documents.
Developer acknowledges that pursuant to City’s governmental land use/entitlements process, Developer shall be required to pay for the costs of the CEQA Documents.
12. Good Faith Negotiations; Retention of Discretionary Authority. (a) The City, in its proprietary capacity, shall cause City staff to negotiate in good faith with Developer to negotiate the Term Sheet, Option Agreement, and Ground Lease. (b) Developer and City staff, as needed, shall meet or hold a conference call approximately every two (2) weeks during the ENA Period to negotiate the Term Sheet, Option Agreement and Ground Lease and discuss the status of activities and tasks related to the negotiations and the Project, the accomplishment of such activities and tasks and other such matters as City or Developer reasonably requests. The Parties shall follow reasonable negotiation procedures, including meetings, telephone and video calls, and correspondence. (c) Developer understands and agrees that by entering into this ENA, City is making no commitment that it will approve a Term Sheet or an Option Agreement. City specifically retains the right to approve or deny a proposed Term Sheet or Option Agreement, in accordance with the discretion accorded to City pursuant to applicable law. No consents, approvals, comments or discussions by staff shall diminish, affect, or waive: (i) rights of City to later impose conditions and requirements under CEQA; (ii) the right of City not to approve the entitlements, the Term Sheet, the Option Agreement, or other Project approvals; or (iii) City’s other discretionary governmental rights, powers, and obligations.
13. Assignment; Developer Affiliates as Parties to Option Agreement and Ground Lease(s). Developer represents and warrants that its undertakings pursuant to this ENA are for the purpose of development of the Property and not for speculation in land, and Developer recognizes that, in view of the importance of the development of the Property to the general welfare of the community, the qualifications and identity of Developer and its principals are of particular concern to City; therefore, this ENA may not be assigned by Developer to any entity not affiliated with Developer without the prior express written consent of City in his sole and absolute discretion.
However, City acknowledges that Developer may intend to form a new entity to be party to the Option Agreement and/or Ground Lease, and Developer may do so provided that such new entity 983
is controlled by Developer or by owners of Developer and that Developer or such owners have or will have a substantial financial investment in such entity and the Project, and provided, further, that Developer first delivers to City a copy of the applicable executed assignment and assumption agreement, and any other documents necessary for City to confirm compliance with the foregoing ownership and control conditions.
14. Notices. Any notice, request, approval, or other communication to be provided by one Party to the other shall be in writing and provided by certified mail, return receipt requested, or a reputable overnight delivery service (such as Federal Express) and addressed as follows:
Developer:
c/o Hillwood Development Company, LLC
3000 Turtle Creek Boulevard
Dallas, TX 75219
Attn: Scott Morse, Vice President
City:
City of Banning
99 E. Ramsey Street
Banning, CA 92220
Attn: City Manager
Notices shall be deemed delivered: (i) if sent by certified mail, then upon the date of delivery or attempted delivery shown on the return receipt; and (ii) if delivered by overnight delivery service, then one (1) business day after delivery to the service as shown by records of the service.
15. Entire Agreement. This ENA constitutes the entire agreement of the Parties hereto with respect to the subject matter hereof. There are no agreements or understandings between the Parties and no representations by either Party to the other as an inducement to enter into this ENA, except as may be expressly set forth herein, and any and all prior discussions and negotiations between the Parties are superseded by this ENA.
16. Amendment of ENA. This ENA may not be altered, amended, or modified except by a writing duly authorized and executed by all Parties.
17. Waivers. No provision of this ENA may be waived except by an express written waiver duly authorized and executed by the waiving Party.
18. Attorneys’ Fees. If either Party should bring any legal action or proceeding relating to this ENA or to enforce any provision hereof, the Party in whose favor a judgment or decision is rendered shall be entitled to recover reasonable attorneys’ fees and expenses from the other. The Parties agree that any legal action shall be filed in and shall occur in the County of Riverside, California.
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19. Governing Law. The interpretation and enforcement of this ENA shall be governed by the substantive laws of the State of California (without regard to conflict of laws rules).
20. Time of the Essence. Time is of the essence of each and every provision hereof in which time is a factor.
21. Execution in Counterparts. This ENA may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same ENA.
22. Email Delivery of Executed Counterparts. Executed counterparts of this ENA may be delivered electronically by email to: [email protected] (for City), and to___________________ (for Developer).
23. Real Estate Commissions. Neither party hereto shall be liable for any real estate commissions or brokerage fees incurred by the other party that may arise here from. Each party hereto agrees to hold the other party hereto harmless from any claim by any broker, agent or finder retained by the indemnifying party.
IN WITNESS WHEREOF, the Parties hereto have executed this ENA as of the day and year first written above.
CITY: DEVELOPER:
CITY OF BANNING INDUSTRIAL VI ENTERPRISES, LLC, a
Delaware limited liability company
By: By:
Douglas Schulze, City Manager
Print Name: _____________________
Title: ____________________________
ATTEST:
Caroline Patton, Deputy City Clerk
APPROVED AS TO FORM:
Serita Young, City Attorney
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Exhibit A
EXHIBIT “A”
DESCRIPTION OF PROPERTY
The land in the City of Banning, County of Riverside, State of California, described as follows:
APNs:
532-130-011
532-130-012
532-130-018
532-140-003
532-150-002
532-150-003
532-150-004
532-180-034
532-180-035
532-180-036
532-180-037
541-240-009
541-250-009
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Exhibit A
987
Attachment 1
ATTACHMENT NO. 1
SPECIFIC DEVELOPER TASKS
1. On or before the date that is sixty (60) days after the date of this ENA, Developer shall deliver to City for staff review and approval, a preliminary financing plan for the Project and an organizational chart of the Developer-related entity proposed to be a party to the Option Agreement and/or Ground Lease.
2. Developer shall promptly obtain and review a preliminary report for the Property from a title company selected by Developer and copies of the documents listed as title exceptions therein, and shall if desired by Developer obtain/perform a survey based on such preliminary report by the Due Diligence Deadline, and shall deliver copies of the report and documents and later any survey based on such report to City by email to Doug Schulze <[email protected]>.
3. On or before the Due Diligence Deadline, Developer shall inspect the Property, including (without limitation) obtaining and reviewing a Phase I environmental (hazmat) report for the Property, and if recommended by the Phase I, a Phase II report. Developer shall promptly deliver copies of the final signed reports to City when received. 988
Attachment 2
ATTACHMENT NO. 2
SPECIFIC CITY TASKS
1. City shall provide to Developer copies of all currently written information regarding the Property in its possession, to the extent not previously delivered to Developer and to the extent material to the Property or Project and not subject to the attorney-client or attorney work-product privilege.
2. Subject to Developer’s execution of a Deposit and Reimbursement Agreement of the sort typically required by City in connection with CEQA, and Developer’s timely making any required deposits thereunder, City shall to prepare and process any required CEQA Documents as soon as reasonably possible after submission by Developer of a complete development application and payment of applicable fees/deposits.
3. City shall provide a draft of the Option Agreement to Developer, and shall revise said draft periodically to the extent permitted by the negotiations. 989
Attachment 3
ATTACHMENT NO. 3
FORM OF RIGHT OF ENTRY AGREEMENT
(Attached.)
990
Attachment 3
RIGHT OF ENTRY AND ACCESS AGREEMENT
THIS RIGHT OF ENTRY AND ACCESS AGREEMENT (“Agreement”) is dated ______________ __, 2023 and is entered into by and between the CITY OF BANNING (the “City”) and INDUSTRIAL VI ENTERPRISES, LLC, a Delaware limited liability company (“Developer”).
R E C I TA L S
A. City and Developer have entered into an Exclusive Negotiating Agreement dated substantially concurrently herewith (the “ENA”) with respect to certain real property described in the ENA, and hereinafter referred to as the “Site”.
B. The ENA contemplates that City and Developer will negotiate a disposition and development agreement (“AGREEMENT”) and one or more ground leases (“Ground Lease”) for the Site, and permits Developer to commence its due diligence inspections of the Site, which may include access necessary to prepare a survey (“Inspections”).
C. Consequently, City and Developer desire to enter into this Agreement to provide access to the Site to Developer for purposes of such Inspections.
NOW, THEREFORE, in consideration of the foregoing recitals, the ENA, the mutual covenants and agreements contained herein, and other consideration, the sufficiency of which are hereby acknowledged, City and Developer hereby covenant and agree as follows:
1. Term. This Agreement shall be effective upon the date hereof, and unless earlier terminated by City pursuant to Section 12 below, shall expire upon the expiration or earlier termination of the ENA.
2. Access. Subject to compliance with the terms and provisions of this Agreement, Developer and Developer’s consultants who are designated in writing to City (collectively, “Developer’s Designees”) shall have the right to enter upon the Site for the purpose of performing the Inspections provided they make arrangements for entry at least two (2) days in advance with the City Manager or his designee at [email protected], who shall have the right to require that he or another City staff person or City consultant staff person accompany Developer or Developer’s Designee, as applicable, during performance of the Inspections; provided, however, that such the failure of such representative to attend a previously scheduled Inspection shall not require Developer or Developer’s Designee to reschedule such inspection.
3. Indemnity. Developer shall indemnify, defend and hold City harmless from and against any and all third-party claims, liabilities, damages (but excluding punitive, speculative, consequential, or lost profits), losses, costs and expenses of any kind or nature whatsoever, including, without limitation, reasonable attorneys’ fees and expenses and court costs (collectively, “Losses”) that City actually suffers or incurs as a direct result of (i) a breach of Developer’s agreements set forth in this Agreement in connection with the Inspections or (ii) physical damage to the Site or bodily injury caused by Developer or Developer’s Designees during its exercise of the right of inspection granted under this Agreement, but expressly excluding Losses 991
Attachment 3
arising out of the discovery of pre-existing conditions, the negligence or willful misconduct of City, or any diminution in value in the Site arising from, or related to, matters discovered but not created by Developer or Developer’s Designees during any Investigations. The indemnification and defense obligations of Developer contained herein shall survive the expiration or earlier termination of this Agreement and the ENA for a period of (1) year.
4. Reports. In the event this Agreement is terminated, Developer shall promptly provide to City copies of all surveys, letters, studies, and reports related to or arising from the Inspections; provided, however, all such materials shall be delivered without representation or warranty, and Developer shall not be obligated to deliver any confidential, proprietary or other materials covered by attorney-client privilege.
5. Insurance. Developer at its sole expense shall procure and maintain in full force and effect from and after the date on which Developer or any of its Designees enters the Site for any purpose, all of the insurance described in Exhibit “A” hereto, and otherwise comply with said Exhibit “A”, and makes the grants/waivers described in Exhibit “A”. Prior to entering upon the Site, Developer shall deliver to City copies of certificates of liability insurance showing that such policies are in effect, and showing the additional insured coverage required by Exhibit “A”.
Thereafter, copies of all required policies shall be furnished from time to time promptly following written request therefor.
6. Limitations. City does not hereby convey to Developer any right, title, or interest in or to the Site, but merely grants the specific and limited contractual rights and privileges hereinabove set forth.
7. Notices. Except as otherwise expressly provided herein, any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other party shall be in writing and shall be addressed as follows and given by United States certified mail, postage prepaid, return receipt requested or by nationally recognized overnight mail service (such as FedEx).
If to Developer:
c/o Hillwood Development Company, LLC
3000 Turtle Creek Boulevard
Dallas, TX 75219
Attn: Scott Morse, Vice President
If to CITY:
City of Banning
99 E. Ramsey Street
Banning, CA 92220
Attn: City Manager
8. Term. Except for provisions which expressly survive, this Agreement shall terminate on the date (the “Termination Date”) that is the earliest of (i) the execution and delivery 992
Attachment 3
of the Option Agreement by City and Developer, (ii) the expiration or earlier termination of the ENA.
9. Assignment. This Agreement may not be assigned by Developer, in whole or in part.
10. Governing Law. This Agreement shall be construed, enforced, and interpreted in accordance with the laws of the State of California (without regard to conflict of laws rules).
11. Execution in Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of such counterparts together shall constitute one and the same instrument.
12. Default; Termination. If Developer fails to cure a default by Developer hereunder within thirty (30) days after City Manager’s delivery of written notice to Developer, the City Manager may terminate this Agreement and ENA by further written notice to Developer.
13. Email Delivery of Executed Counterparts. This Agreement may be executed in counterparts and delivered by electronic transmission (e.g., PDF format/email), to [email protected] (for delivery to City) and to Scott Morse [[email protected]] (for delivery to Developer), each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above.
CITY: DEVELOPER:
CITY OF BANNING INDUSTRIAL VI ENTERPRISES, LLC, a
Delaware limited liability company
By: By:
Douglas Schulze, City Manager
Print Name: _ ______
Title:
Attest:
Caroline Patton,
Deputy City Clerk
993
Attachment 3
EXHIBIT “A” TO RIGHT OF ENTRY AGREEMENT
INSURANCE REQUIREMENTS
1. Developer (hereinafter referred to as “Contractor” in this Exhibit “A”) shall, prior to entering onto the Site, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder (consisting of inspections and tests) by Contractor, its agents, representatives, employees, or subcontractors. The cost of such insurance shall be borne by the applicable Contractor.
2. Minimum Scope and Limit of Insurance. Coverage shall be at least as broad as:
(a) Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, the general aggregate limit shall be twice the required occurrence limit (these limits may be achieved by a combination of a primary policy and an excess or umbrella liability policy). The policy shall include broad form contractual liability coverage.
(b) Automobile Liability: ISO Form Number CA 0001 covering any auto (Code 1), or if Contractor has no owned autos, hired (Code 8) and non-owned autos (Code 9), with combined single limit no less than $1,000,000 per accident for bodily injury and property damage. (c) Workers’ Compensation insurance as required by the State of California, with statutory limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
3. Contractor should check with Contractor’s insurance advisors to verify compliance and determine if additional coverage or limits may be needed to adequately insure Contractor’s obligations under this Agreement. These are the minimum required and do not in any way represent or imply that such coverage is sufficient to adequately cover Contractor’s liability under this Agreement. These insurance requirements shall not in any way relieve Contractor of liability in excess of such coverage, nor shall it preclude City from taking such other actions as are available to it under any other provisions of this Agreement or law. These insurance requirements shall not in any way act to reduce coverage that is broader or includes higher limits than those required. If Contractor maintains broader coverage and/or higher limits than the minimums shown above, City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage required, which are applicable to any given loss, shall be available to City.
4. The insurance to be provided by Contractor under this Agreement shall not include any endorsement limiting coverage available to City that is otherwise required herein; and any policy or endorsement language that (i) negates coverage to City for City’s own negligence; (ii) limits the duty to defend City under the policy; (iii) provides coverage to City only if Contractor is negligent, or (iv) permits the recovery of defense costs from any additional insured. The 994
Attachment 3
insurance provided under this Agreement shall not contain any restrictions or limitations which are inconsistent with City’s rights under this Agreement.
5. Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions:
(a) Additional Insured Status. The City of Banning, its City Council, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability additional insured coverage shall be provided in the form of an endorsement to Contractor’s insurance at least as broad as ISO Form CG 20 10 (ongoing operations) and CG 20 37 (completed operations).
(b) Separation of Insureds. A separation of insureds provision must apply for all the additional insureds, ensuring that Contractor’s insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the insurer’s limits of liability.
(c) Primary Coverage. For any claims related to this Agreement, Contractor’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects City, its City Council, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by City, its City Council, its officers, officials, employees, agents, or volunteers shall be excess of Contractor’s insurance and shall not contribute with it. (d) Notice of Cancellation/Change in Coverage. Each insurance policy required above shall state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits, non-renewed, or materially changed except after thirty (30) days’ prior written notice has been given to City, except that ten (10) days’ prior written notice shall apply in the event of cancellation for non-payment of premium. Prior written notice shall be sent to City pursuant to the Notices provisions of this Agreement.
(e) Waiver of Subrogation. Contractor hereby grants to City a waiver of any right to subrogation which any insurer of Contractor may acquire against City, its City Council, its officers, officials, employees, agents, and volunteers from Contractor by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not City has received a waiver of subrogation endorsement from the insurer. Contractor’s Workers’ Compensation policy shall be specifically endorsed from the insurer with a waiver of subrogation in favor of City, its City Council, its officers, officials, employees, agents, and volunteers. A blanket endorsement is insufficient and unacceptable in satisfying this requirement. Said endorsement from the insurer must be received, reviewed, and approved by City prior to right of entry.
(f) Self-Insured Retentions. Self-insured retentions must be declared to and approved by City. City may require Contractor to purchase coverage with a lower retention or 995
Attachment 3
provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
(g) Acceptability of Insurers. Insurance is to be placed with insurers authorized to conduct business in the state of California with a current A.M. Best’s rating of no less than A:VII. The current A.M. Best rating for each insurer shall be noted on a cover letter provided by the producer of the Certificate(s) of Insurance.
(h) Certificate Holder. Certificate Holder on each insurance certificate shall be addressed pursuant to the Notices provisions of this Agreement. (i) Verification of Coverage. Contractor shall furnish City with certificates and all required amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. A statement on an insurance certificate will not be accepted in lieu of the actual endorsements required herein. Each insurance certificate shall specifically identify this Agreement. All certificates and endorsements are to be received and approved by City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive Contractor’s obligation to provide them. City reserves the right to require copies of all required insurance policies, including endorsements required by these specifications, at any time.
(j) Failure to Maintain Insurance Coverage. If Contractor, for any reason, fails to maintain insurance coverage that is required pursuant to this Agreement, the same shall be brought to Contractor’s attention in writing and, if not cured within 5 (five) business days, be deemed a material breach of this Agreement. City, at its sole option, may terminate this Agreement at any time and file for damages from Contractor resulting from said breach. Alternatively, City may, upon written notice and, if not cured within 5 (five) business days, purchase such coverage (but has no special obligation to do so), and without further notice to Contractor, City may deduct from sums due to Contractor any premium costs advanced by City for such insurance. (k) Special Risks or Circumstances. City reserves the right to modify these requirements at any time, including limits, based on its good-faith assessment of the nature of the risk, prior experience, insurer, coverage, or other special circumstances. 099999\16955001v10
996
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Doug Schulze, City Manager
MEETING DATE: December 12, 2023
SUBJECT: Authorize a Request for Proposals for Development of City-Owned Property
RECOMMENDATION:
Authorize a Request for Proposals (RFP) for development of City-owned property.
BACKGROUND:
The City of Banning owns five parcels adjacent to and east of the Banning Justice Center on E. Ramsey Street. All parcels are zoned Downtown Commercial and would be best suited for mixed-use development (ground floor retail with office and/or residential above). During the past year, several developers have expressed interest in the property. It is anticipated that a minimum of four developers will submit responses to an RFP. The proposed Request for Proposals is attached. If City Council authorizes the RFP, it will be released on January 11, 2024 and proposals will be due on February 16, 2024.
The evaluation, due diligence and interviews of finalists will occur between March and May with consideration of a contract at the August 13, 2024 City Council meeting. The vision proposed for the property is consistent with the Town Core sub-district of the Paseo San Gorgonio Master Plan and Downtown Revitalization Plan.
JUSTIFICATION:
The City Council has established goals to clean up the appearance of the Ramsey Street corridor and to attract businesses to Banning. Vacant land in the downtown core detracts from the appearance of the downtown and invites homeless encampments. The City-owned parcels were acquired for the purpose of consolidating properties to attract development.
FISCAL IMPACT:
Staff time involved with preparation of the RFP and the evaluation/selection process will be minimal. Sale or ground lease of the property will generate significant one-time revenue. Fully developed property will generate property tax and sales tax revenues.
ALTERNATIVES:
1. Authorize Request for Proposals as presented.
2. Authorize Request for Proposals with modifications.
3. Do not authorize Request for Proposals.
ATTACHMENTS:
1. REQUEST FOR PROPOSALS - Downtown Mixed Use Project.docx 997
998
REQUEST FOR PROPOSALS
DOWNTOWN MIXED-USE DEVELOPMENT
ISSUED BY
CITY OF BANNING
CITY MANAGER S OFFICE ECONOMIC DEVELOPMENT
99 E. Ramsey Street
Banning, California 92220
PROPOSAL DUE
February 16, 2024, BEFORE 2:00 PM PT
999
1. INTRODUCTION/PURPOSE
The City of Banning (“City”) is seeking innova?ve, qualified developers for a small mixed-use project within downtown Banning totaling approximately 7 acres. The property is owned by the City of Banning and is zoned Downtown Core. The vision for these proper?es is a town center style mixed-use project, including first floor commercial/retail spaces with office and residen?al above. Architectural style should be compa?ble with exis?ng downtown buildings.
Proposals are requested from En??es that have a demonstrated ability to perform the tasks iden?fied in this Request for Proposals (“RFP”).
2. ABOUT THE CITY OF BANNING
As the City of Endless Opportunity, Banning has the dis?nc?on of being the fastest growing city in California with a popula?on above 30,000. Incorporated in 1913, Banning enjoys a rich heritage as we celebrate 110 years as a municipality. Our historic roots, combined with our diverse popula?on and rich heritage creates many opportuni?es for businesses to thrive.
A recently completed Downtown Design and Complete Streets Plan sets the stage for public investment in our downtown, which will revitalize the en?re downtown area. With 12,000+ new homes planned or under construc?on, Banning is expec?ng rapid growth during the next 10 to 15 years. This growth is viewed as a catalyst that for retail growth in the community, including demand for dining, entertainment and specialty businesses.
Banning also benefits from excellent freeway and rail access, reasonable land and building costs, and is within 25 minutes of Palm Springs Interna?onal Airport. City-owned water, electric and sewer public u?li?es provides compe??ve rates and incen?ve flexibility that surpasses most other ci?es in Southern California. In addi?on, streamlined development services including uniform plan check and expedited review con?nue to improve customer sa?sfac?on ra?ng.
In 2022, the City had the highest growth percentage in assessed property value among all ci?es in Riverside County, almost doubling the percentage growth County-wide. As a result of the rapid growth, demographic data is also changing rapidly. 31,546 47.8 366+ $64,635
POPULATION MEDIAN AGE BUSINESSES AVG. HOUSEHOLD
INCOME
3. SCHEDULE OF EVENTS
The City intends to select one Developer for the site iden?fied in this RFP (hereina? er designated as the “Project”) including all planning, design, and construc?on. Responses to the 1000
RFP must address the site as a singular “Project.” Proposals for less than the en?re Project will not be considered.
At the conclusion of the City’s evalua?on process, a Developer will be recommended for confirma?on by the City Council through the execu?on of an Exclusive Nego?a?on Agreement (ENA). If nego?a?ons are successful, a Disposi?on and Development Agreement (DDA) will be confirmed by the City Council laying out the terms and condi?ons of the purchase price/ground lease, schedule of performance, scope of development, a finalized affordable housing agreement, and other items appropriate to the transac?on.
It is the goal of the City to select and retain a Developer by August 2024. See sec?ons 8 through 11 for submission requirements. In prepara?on for that ac?on, the following tenta?ve schedule of events has been prepared:
The City reserves the right to amend, withdraw and cancel this RFP. The City reserves the right to request or obtain addi?onal informa?on about any and all submi? als before making an award. The City also reserves the right to seek clarifica?on from any Proposer about any statement in its proposal that the City finds ambiguous.
Where ?mes and dates are presented in the schedule of events, they are fixed, and extensions will not be granted unless specifically stated by the City in an addendum to this RFP. Proposals not received before the bid event ?me will not be accepted.
RFP EVENT SCHEDULE
Event Date Time
Request for Proposals Released 1/11/2024 Before 3:00 p.m.
Proposal Ques?ons Due to Planet Bids 1/17/2024 Before 3:00 p.m.
Responses to Ques?ons Released 1/23/2024 Before 4:00 p.m.
Proposals Due 2/16/2024 Before 2:00 p.m.
City Due Diligence and Review Completed 3/29/2024 End of Day Finalists No?fied 4/5/2024 End of Day
Mandatory in Person or virtual Site Tour and
Informa?onal Project Presenta?on
Week of 4/29/2024 TBD
Finalist Panel Interviews Week of 5/6/2024 TBD
Tenta?ve No?ce of Intent to Nego?ate May 2024 TBD
Tenta?ve Update to the City Council 6/11/2024 TBD
Tenta?ve City Council Mee?ng to Consider
Awarding Contract
8/13/2024 TBD
4. BACKGROUND
The vision for the proper?es is generally consistent with the Town Core subdistrict of the Paseo San Gorgonio Master Plan and Downtown Design Plan. These documents set a framework for 1001
design standards, land uses, affordable housing, and maximum development capaci?es. The Mixed-Use District comprises approximately 66 acres, generally bound by Williams Street on the north, Interstate 10 on the south, 4th Street on the west, and Alola Street on the east. The Town Core subdistrict allows for the ver?cal and horizontal integra?on of housing and retail uses. The mix of uses is intended to produce a unique and walkable shopping, dining, and living experience in the Mixed-Use District. The greater intensity of development supports mixed-use mul?ple-story buildings that gain visibility from surrounding roadways and provide expansive views without domina?ng the skyline.
5. SITE OFFERED
A total of 4.86 acres are being offered for conveyance (Sale and/or Lease) and an addi?onal 4.79 acres of privately owned undeveloped or underdeveloped property is immediately adjacent.
The City-owned parcels are offered as a package, and only offers addressing all parcels will be considered.
5.1 PARCELS OWNED BY THE CITY OF BANNING
The parcels iden?fied with the in are currently owned by the City.
APN 541-150-004
APN 541-150-008
APN 541-150-025
APN 541-150-027
APN 541-150-028
1002
6. DEVELOPER SELECTION PROCESS
The City intends to enter into a Disposi?on and Development Agreement (DDA) with a Developer for the site being offered. The Developer is expected to provide all equity and debt capital required to complete the development component of the Project, including all required on- and off-site improvement costs. The City’s fee interest in the site will not be subordinated to or encumbered by Developer financing. Included in the total costs of the development component of the Project will be the City’s Pre-Project related expenses, including, but not limited to 1) Planning and Design, 2) CEQA of the City’s Project-related expense; the selected Developer will be required to deposit $50,000 in an account with the City. The City will draw on the account for reimbursement of City expenses. If the account balance falls below $10,000, the Developer will be required to supplement the account up to the maximum amount of $50,000.
The City Manager’s Office, Economic Development Division will manage the selec?on process.
The City is the sole and final decision-maker regarding this selec?on and reserves the right to reject any or all submissions or proposals. See RFP 7 through 12 for submission terms, condi?ons, and requirements.
7. DEVELOPER APPLICANTS
Preference, in the selec?on process, will favor Developer applicants who largely meet the criteria described in this RFP. Development experience in California is important. A demonstrated success in dealing with market cycles is cri?cal. Experience of the senior members of the Developer team is essen?al.
7.1 PERSONNEL AND TEAM EXPERIENCE
Preference is for teams that have the following:
Key posi?ons having not less than 10 years of experience in the development industry in senior management posi?ons.
Key posi?ons having experience in collabora?ng with public en??es. Team members that have collaborated on prior projects. Demonstrated experience on a similarly-scaled project(s) containing mixed uses. Team that includes a qualified affordable housing developer that is registered with the State’s Housing and Community Development Department (HCD).
The collec?ve experience of the Developer team shall be evaluated based on the principals and lead representa?ves of each of its members. Of par?cular importance will be project specific experience in the successful development of similarly-scaled project in which mul?family products were a significant feature including affordable housing. 1003
7.2 ENTITY GUARANTEEING PERFORMANCE
The en?ty guaranteeing performance (i.e., which is assumed to be either the lead member of the Developer team or a third-party associated with the Developer team) must demonstrate the financial capacity appropriate for a long-term project.
7.3 FINANCIAL CAPACITY
The proposing applicant should demonstrate the following:
The capacity to secure equity and debt financing for similarly projects. Successful investment in real estate projects over the last 15 years using equity and debt.
The ability to use short-term unsecured financing for pre-development ac?vi?es (i.e., equity, LCs, mezz loans, bridge loans).
7.4 DEVELOPMENT EXPERIENCE
Applicants should demonstrate experience in the following:
Mul?family
o Development of not less than 100 market rate rental units (apartments and homes)
o Development of not less than 50 units qualifying as affordable housing for lower-income households as defined by State HCD.
Mixed-Use Development containing residen?al and non-residen?al components. o Development of not less than 25,000 SF/gross of community-oriented retail. o Development of grocery retail.
7.5 PLACEMAKING, PLANNING, AND DESIGN
Applicants should demonstrate the ability to move forward in the pre-development process associated with the planning and design of an infill community using crea?ve approaches and solu?ons. The placemaking abili?es of the Developer are cri?cal to the City and the Downtown Commercial area.
7.6 COMMUNICATION
The applicant should provide evidence of its ability to effec?vely communicate with the City staff, to establish clear internal lines of responsibility that the City can depend upon during nego?a?ons and project implementa?on. The Developer must also be willing to engage in public outreach efforts to the City and local community. Extensive experience in working with public en??es on public/private development projects is required. 1004
8. RESPONSE TO RFP BY DEVELOPER APPLICANTS
Applicants shall provide a digital submission in PDF format comprised of two sec?ons.
Sec?on 1 shall contain general qualifica?ons. Sec?on 2 shall contain conceptual plans and the business offer. The submission package must be organized as described under Sec?on 1 (Qualifica?ons) and Sec?on 2 (Concept Plans and Business Offer). Proposals should be straigh? orward and concise.
1. SECTION 1 – QUALIFICATIONS
Cover Le? er
Statement of Project Understanding and Approach
Iden?fica?on of Development En?ty
Statement of Project Experience
Developer Team Members, Roles, and Responsibili?es
Evidence of Financial Capacity including sources of equity and debt References
All prospec?ve en??es will be invited to a? end a pre-proposal mee?ng. A? endance is not mandatory. The ?me, date, and loca?on of the mee?ng will be provided at a later date.
a. COVER LETTER
The cover le? er shall include a brief general statement of intent to confirm that all elements of the RFP have been reviewed and understood. The le? er shall include a summary of the Developer’s qualifica?ons and the willingness to enter into an agreement under the terms and condi?ons prescribed by this RFP. The le? er must iden?fy a single person for contact during the RFP review process. [Limit 1 Page]
b. PROJECT UNDERSTANDING AND APPROACH
Describe your understanding and view of the goals and challenges of the Project and explain how the Developer would work with the City to address them. The explana?on should acknowledge an affordable housing component, the overall development program, and the planning and design concepts an?cipated. [Limit 1 Page]
c. DEVELOPMENT ENTITY
Iden?fy the lead En?ty responsible for managing the planning and development process. Iden?fy the en?ty guaranteeing performance and the rela?onship of this en?ty to the managing en?ty, including the names of its principals or partners. Indicate en??es partnering on project components, 1005
such as, retail, office, affordable housing, and market rate residen?al including for-sale and/or rental. [Limit 2 Pages]
d. PROJECT EXPERIENCE
Provide relevant qualifica?ons and project specific experience of the principals and lead personnel represen?ng each member of the Developer team. Provide relevant project experience for not less than three projects and not more than five. [Limit 10 pages]
Each project listed shall include the following informa?on, if appropriate:
General Descrip?on and loca?on, including name of Developer, role of lead team member(s), and those characteris?cs that were relevant to the Project and how they were addressed.
Size (acres, density, units, square feet).
Project cost, including conven?onal capital and financing sources. List tax-exempt or other sources of non-conven?onal financing, if applicable.
Economic performance (pricing, absorp?on ?me, occupancy). Timeframe from pre-development to last development phase. Budget and Schedule: The ability of the Developer to implement similar projects on ?me and within budget.
Partnerships with en??es par?cipa?ng in the project including, if appropriate, the affordable housing partners.
Public Outreach.
Communica?on with Staff of Public En??es.
Challenging Development Condi?ons.
e. DEVELOPER MEMBERS, ROLES, AND RESPONSIBILITIES
Iden?fy the key members of the Developer for this Project, if applicable, including:
Master Developer En?ty, form of organiza?on
En?ty Guaranteeing Performance
Partnering En??es, non-lead en??es
Urban/Land Use Planner
Design Architect (licensed)
Landscape Architect (licensed)
California Civil Engineer (licensed)
Environmental Consultant
Property Manager for residen?al rental products, if any. Legal Representa?on
1006
Provide an organiza?onal chart indica?ng lines of responsibility. Provide the business names, addresses and phone numbers of the key members of the Developer team. Include names of the principals and lead personnel that will represent each team-member. Describe the roles and responsibili?es of principals and lead personnel in rela?onship to the goals and challenges associated with the intended development program.
Describe the organiza?onal structure of the Developer en?ty and how communica?on would occur with the City throughout the
implementa?on and on-going management.
f. FINANCIAL CAPACITY
Provide evidence of the Developer’s access to the capital resources, both equity and debt, necessary to finance the development of this Project, by iden?fying the following:
Iden?fica?on of sources of equity and debt capital in addi?on to the financing sources on completed and ac?ve projects.
Describe the Guaranteeing En?ty’s financial strength. Proof of financial strength may be required at a later date or provided in this response.
Descrip?on of projects currently under development or in the pipeline, including status, development schedule, financing sources (both equity and debt capital).
g. REFERENCES
Provide at least three (3) references for each partner of the Developer. The references should be conversant with the capabili?es and work of the principals or lead personnel represen?ng that member of the Developer en?ty. Include the name, ?tle, en?ty, address, and telephone number of each reference. [Limit 1 Page].
The City, or its consultants, may, at their discre?on, contact references and industry sources, inves?gate previous projects and current commitments, interview some or all the Developer en?ty members, and take any other informa?on into account in their evalua?on of the responses. The City reserves the right to request clarifica?on or addi?onal informa?on from respondents and to request that respondents make presenta?ons to the City as directed.
1007
2. SECTION 2 – CONCEPTUAL DESIGN AND BUSINESS PROPOSAL
Applicants will be required to submit a wri? en proposal containing the following:
a. PROJECT DESCRIPTION (SCOPE OF DEVELOPMENT)
Provide a comprehensive narra?ve descrip?on of the Developer’s proposed Project. The overview will need to discuss the Developer’s approach and vision for the Project using the Paseo San Gorgonio Plan, Downtown Design Plan and Complete Streets Plan as a framework. The narra?ve must be specific in providing the ra?onale for the development approach. b. CONCEPT PLANS
1. Provide a conceptual Site Plan showing, at a minimum, loca?on of buildings and parking, community/common areas, iden?fica?on of uses, exterior dimensions, square footage for non-residen?al buildings, number of residen?al units and parking ra?os as appropriate.
2. Provide, in a three-dimensional format (sketch-up or similar so? ware), the proposed development on City-owned parcels and the maximum development allowed on adjacent sites (non-City owned).
The purpose is to show the massing of the improvements allowed at buildout.
c. SCHEDULE OF PERFORMANCE
Iden?fy proposed phasing of development and the schedule for buildout of the en?re Project.
d. BUSINESS OFFER
The offer must clearly explain the type of acquisi?on proposed, that is, purchase or lease.
1. Purchase Price, show in 2023 dollars.
2. Ground Lease providing the full terms and condi?ons of the lease including length of lease and lease adjustments.
3. Profit Par?cipa?on, if proposed, should be listed by product type with the terms and condi?ons listed separate from the Purchase Price.
4. Other direct financial benefits to the City which are not part of the purchase price, lease terms, or profit par?cipa?on. Do not provide indirect benefits resul?ng from a mul?plier effect unless they are directly ?ed to an improvement by the Developer.
1008
e. FINANCIAL PLAN
1. Project Proforma – provide a comprehensive project proforma shown by phase and rolled up to a summary. The proforma should demonstrate annual performance, by Phase, all revenues, expenses, separa?ng direct costs from indirects, and profit measures (e.g., IRR, NPV, ROI, or other measures used). All assump?ons used in the proforma should be provided on a separate worksheet.
2. Sources and Use of Funds – provide the an?cipated sources of project funding including all equity sources and debt sources.
f. RESPONSIBILITIES
1. Developer – Developer’s responsibility for improvements should be clearly stated in a table outlining the responsibili?es for onsite and offsite improvements.
2. City – Developer’s expecta?ons of the City in the development of the project acknowledging the requirements of the Downtown Design and Complete Streets Plan.
g. MARKETING PLAN
1. Proposed approach to establishing a brand based for the Project.
Branding should recognize the early history of the area. Significant elements in shaping the area include the Morongo Band of Mission Indians, Stagecoach and rail stop between Arizona territories and Los Angeles, and the scenic vistas of Mt. San Gorgonio and Mt. San Jacinto.
2. Tenan?ng the Mixed-Use Center – Proposed approach for outreach to poten?al commercial tenants. A priority for the community is a grocery store and associated community services.
3. SCHEDULE FOR DEVELOPER APPLICANTS
All aspects of the schedule shall be conducted in accordance with the ?meline provided in Sec?on 3 of this document including submi? al and response to clarifying ques?ons, no?fica?on of finalists, interview panel dates and site tour and community mee?ng. However, the City reserves the right to adjust this schedule with no?fica?on as indicated in Sec?on xxx
a. PRESENTATION AND INTERVIEW
A presenta?on and interview will be scheduled for the selected en??es based on submi? ed response. The City will no?fy the en??es that have been selected for an interview including the ?me and loca?on. 1009
Approximately 45 minutes will be allowed for each en?ty; 25 minutes for a presenta?on by the en?ty and 20 minutes for a ques?on-and-answer period. Each en?ty will be allowed to bring not more than five team members to the presenta?on and interview, one of the team members must be the Developer representa?ve responsible for managing the team, leading nego?a?ons and responsible for the overall development process.
The Developer will be required to lead the presenta?on; other members of the team can par?cipate in the presenta?on. Applicants will not be allowed to introduce new items or concepts that were not addressed in their wri? en statements.
b. RANKING
The City will rank applicants based on their wri? en proposal and interview.
Rankings will be weighed on the criteria listed below.
1. Experience and Qualifica?ons 30%
2. Scope of Development 40%
3. Business Offer and Financial Plan 30%
c. EXCLUSIVE NEGOTIATION AGREEMENT
The proposal of the selected Developer will be presented to the City Council Economic Development Commi? ee for considera?on and recommenda?on to move forward to the full City Council for considera?on.
If the selected Developer is approved by the City Council, an Exclusive Nego?a?ons Agreement (ENA) will be entered into between the Developer and the City. The ENA will establish the terms and condi?ons for the dra? ing of a Disposi?on and Development Agreement (DDA). The Developer will be required to provide a good faith deposit of $50,000 that is refundable if nego?a?ons are not successful. The deposit will fund a por?on of City expenses related to the Project as part of the total costs of the Project.
9. CITY REQUIREMENTS FOR PROPOSAL SUBMISSION
1. DELIVERY/SUBMISSION OF PROPOSALS
All prospec?ve Companies submi? ng a proposal must upload electronic files containing all proposal and supplementary documents prior to the due date and ?me as instructed in this solicita?on. The final day for receipt of proposals will be as stated in Sec?on 3, Schedule of Events. This ?me and date are fixed, and extensions will not be granted. All proposals received a? er the deadline will be rejected and will not receive further considera?on. Respondents will receive an email confirma?on form the City Manager’s Office within 5 business days of the due date. 1010
2. INQUIRIES
If prior to the date fixed for submission of Proposals, a prospec?ve Applicant discovers any ambiguity, conflict, discrepancy, omission, or other errors in this RFP or any of its appendices or exhibits, the Applicant shall immediately no?fy the City of such error by way of email to request modifica?on or clarifica?on of the document.
Modifica?ons shall be made by wri? en Addenda to the RFP.
If an Applicant fails to no?fy the City, prior to the date fixed for submissions of Proposals, of an error in the RFP known to the Applicant, or an error that reasonably should have been known to the Applicant, the Applicant shall submit its Proposal at its own risk.
All requests for proposal clarifica?ons, or changes, excep?ons, or devia?ons to the terms and condi?ons set forth in this RFP must be submi? ed with the ?tle “Q&A” in accordance with the schedule provided in Sec?on 3, Schedule of Events.
The Final day for receipt of ques?ons from the Proposer shall be as stated in Sec?on 3, Schedule of Events. To ensure fairness and avoid misunderstandings, all communica?ons must be in wri? en format and submi? ed only in the format set forth above. Any verbal communica?ons will not be considered or responded to. All ques?ons received by the due date will be logged and reviewed and if required, a response will be provided via an addendum to the RFP that will be posted on the Northside Plan Website in the Developer’s Toolbox. Any communica?ons, whether wri? en or verbal, with any City Councilmember, the Honorable Mayor, or City staff other than the individual indicated herein, prior to award of an Exclusive Nego?a?on Agreement (ENA) by City Council, is strictly prohibited. Any Proposer who violates this provision shall be immediately disqualified from considera?on as a vendor under the terms of this RFP.
3. COMPLETION OF PROPOSAL
Proposals shall be completed in all respects as required by this RFP. A proposal may be rejected if condi?onal or incomplete, or if it contains any altera?ons or other irregulari?es of any kind and will be rejected if any such defect or irregularity can materially affect the quality of the proposal. Proposals which contain false or misleading statements may be rejected. If, in the opinion of the City’s Selec?on Commi? ee, such informa?on was intended to mislead the City in its evalua?on of the proposal, and the a? ribute, condi?on, or capability is a requirement of this RFP, the proposal will be rejected. Statements made by an Applicant shall also be without ambiguity, and with adequate elabora?on, where necessary, for clear understanding.
1011
Unauthorized condi?ons, exemp?ons, limita?ons, qualifica?ons, or provisions a? ached to a Proposal will render it non-responsive and will cause its rejec?on.
The Applicant, in responding to this RFP, must submit Proposals in the format iden?fied in this RFP. The Proposal must address all requirements of the RFP even if a “no response” is appropriate.
Costs for developing Proposals are en?rely the responsibility of the Applicant and shall not be chargeable to the City. The City shall not be liable for any costs incurred in response to this RFP, including but not limited to, costs for any interviews, presenta?ons, or other follow-up informa?on necessary as part of the selec?on process. All costs shall be borne by the Applicant responding to this RFP. The Applicant responding to this RFP shall hold the City harmless from any liability, claim, and expense whatsoever incurred by or on behalf of the Applicant.
4. ALTERNATIVE PROPOSALS
Only one proposal is to be submi? ed by each Applicant for this RFP. Mul?ple simultaneous proposals will result in rejec?on of all Proposals submi? ed by Applicant. Development team members shall appear on only one proposal including applicants and sub-contractors.
5. WITHDRAWAL OF PROPOSAL
All proposals shall be firm offers and may not be withdrawn for a period of one hundred twenty (120) days following the deadline date for submission of proposals noted herein. Submi? ed Proposals may be withdrawn at any ?me prior to the submission deadline.
6. DISCLOSURES
All proposals must include a response to the Disclosure Ques?onnaire u?lizing the form in Exhibit “B.” Please disclose any and all past or current business and personal rela?onships with any current Banning elected official, appointed official, City employee, or family member of any current Banning elected official, appointed official, or City employee. Any past or current business rela?onship may not disqualify the firm from considera?on. Describe any administra?ve proceedings, claims, lawsuits, or other exposures pending against the Proposer.
7. EXAMINATION OF RFP
The Applicant shall carefully examine the RFP and the site, if applicable. The submission of a Proposal shall be conclusive evidence that the Applicant has read and understands what is required of the proposal process. 1012
By submi? ng a Proposal, the Applicant hereby cer?fies that it has: examined the local condi?ons, read each and every clause of this RFP and agrees it will make no claim against the City based upon ignorance of local condi?ons or misunderstanding of any provision of the proposal. Should the condi?ons turn out otherwise than an?cipated by it, the Applicant agrees to assume all risks incident thereto.
8. ADDENDA
Any addenda issued during the ?me of bidding will be acknowledged electronically via the email provided by the Developer team and made available to all par?es.
All Proposals submi? ed in response to this RFP become the property of the City and pursuant to the Public Records Act (Gov. Code, § 6250 et seq.) are public records.
The Applicant must no?fy the City in advance of any proprietary or confiden?al materials contained in the Proposal and provide jus?fica?on for not making such material public. The City shall have sole discre?on to disclose or not disclose such material subject to any protec?ve order that the Applicant may obtain. Note that under California law, price proposal to a public agency is not a trade secret.
The City reserves the right to make use of any informa?on or idea contained in the Proposal. All materials, ideas and formats submi? ed in response to this RFP will become the property of the City on receipt.
9. GENERAL TERMS AND CONDITIONS
By submi? ng a response to the solicita?on process, all respondents automa?cally are bound and agree to the following terms and condi?ons throughout the process and waive all rights to protest the City’s selec?on process.
10. EVALUATION AND CANCELLATION OF PROPOSALS
a. The City reserves the right in its sole discre?on to amend, withdraw or terminate the solicita?on; to reject all responses to this RFP at any ?me; to issue subsequent solicita?ons for the same sites or sites, or varia?ons thereof; to modify the selec?on criteria, or to take other ac?ons should it be deemed to be in the best interest of the City. No obliga?on either expressed or implied exists on the part of the City to make an award based on the submission of any proposals.
b. City reserves the right to modify the response requirements to this solicita?on no?ce, including, without limita?on, extending the due date for a response. The City reserves the right to modify, reissue, or cancel in whole or part this solicita?on and/or response requirements, ?ming, arrangement, and method of developer selec?on throughout the selec?on process.
1013
c. City and its Selec?on Panel reserve the right to disqualify any development Applicant based on perceived conflict of interest that is disclosed or revealed in the process or by any data available to the City. d. City and its Selec?on Panel reserve the sole right to judge a respondent’s representa?ons, either in wri? en or oral form as to their veracity, substance and rela?on to the proposed project and solicita?on. e. By making a response, the respondent authorizes the City and its Selec?on Panel, if necessary, to contact individuals and organiza?ons regarding its experience, financial capability and other factors determined by the City important to determining its capability to purchase property, develop, own, and operate in a manner in compliance with the Northside Specific Plan.
f. A respondent, by submi? ng a response, shall have waived all rights to protest or seek legal remedies whatsoever, regarding any aspect of the developer screening process, any Selec?on Panel or City decision on the selec?on of the top three most qualified developers, or the City’s rejec?on or disqualifica?on of any respondent.
g. Respondents shall respond to this solicita?on and any future undertakings related to this solicita?on at their own risk and cost. The City will not pay or reimburse respondents for any incurred expenses or pre- contractual expenses.
h. Respondents acknowledge that responses are subject to public inspec?on under the California Public Records Act unless exempted by law. If the respondent believes that any informa?on submi? ed should be protected from such disclosure due to its confiden?al, proprietary nature or other reasons, it must iden?fy such informa?on and the basis for the belief in its non-disclosure. Notwithstanding that disclaimer, it is the inten?on of the City to keep all responses confiden?al un?l such ?me as real estate nego?a?ons are successfully concluded for the proper?es described in this solicita?on.
i. This solicita?on is not a contract or commitment of any kind by the City and does not commit the City to enter into an Exclusive Agreement to Nego?ate, Disposi?on and Development Agreement, purchase and sale agreement, ground lease or any other agreement.
j. The content of informa?on on the City’s website regarding the Project is not warranted or guaranteed by the City, and respondents are urged to do their own independent inves?ga?ons and any evalua?ons they deem advisable. Neither the City, nor its consultants or Selec?on Panel provides any warran?es, guarantees, or assurances in that regard.
A? er reviewing the RFP submissions, the City intends to invite selected Developer teams to the interview process. The City may, at its sole discre?on, choose not to proceed with the development of the Project. There is no 1014
guarantee the City will decide to move forward with the Project based on the Qualifica?ons submi? ed. Notwithstanding this waiver, the City appreciates your interest in the Project and looks forward to receiving your Qualifica?ons for this exci?ng opportunity.
All Proposals shall be reviewed to verify that the Applicant has met the minimum requirements as stated in this RFP. Proposals that have not followed the rules, do not meet minimum content and quality standards, and/or do not provide references will be rejected as non-responsive.
1015
EXHIBIT A
QUALIFICATIONS STATEMENT/QUESTIONNAIRE
If your organiza?on is individually owned, answer the following:
1. Date of organiza?on:
2. Name of owner:
If the form of your organiza?on is not individually owned, describe it and name the principals:
1016
EXHIBIT B
DISCLOSURE QUESTIONNAIRE
The Applicant shall complete the following ques?onnaire:
1. Has the Applicant, any officer of the Applicant, or any employee of the Applicant who has proprietary interest in the Applicant, ever been disqualified, removed, or otherwise prevented from bidding on, or comple?ng a federal, state, or local government project because of a viola?on of law or safety regula?on?
Yes _______ No_______
If the answer is yes, explain the circumstances in the following space.
2. Has the Applicant, any officer of the Applicant, or any employee of the Applicant who has proprietary interest in the Applicant, ever had any administra?ve proceedings, claims, lawsuits, or other exposures pending against the Applicant? Yes_______ No______
If the answer is yes, explain the circumstances in the following space. 1017
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Lincoln Bogard, Administrative Services Director MEETING DATE: December 12, 2023
SUBJECT: Consideration of Resolution 2023-191, Awarding the Contract for Comprehensive Banking Services Request For Proposals (RFP) to HCN Bank
RECOMMENDATION:
Adopt Resolution 2023-191.
BACKGROUND:
The City's current banking contract with Wells Fargo ends in August 2024. Wells Fargo has been the City's bank for the past 20 years. Industry best practice is to conduct an RFP every five to ten years to ensure the best solution for the City at that time. Staff issued an RFP on October 20, 2023, and received two proposals prior to the submittal deadline of November 20, 2023. Staff contacted all banks that have a presence in the Pass Area to request submissions. The responsive banks were HCN Bank and Wells Fargo.
JUSTIFICATION:
While Wells Fargo is a large Federal Charted Commercial Bank and HCN Bank is a smaller State Charted Commercial Bank, HCN Bank utilizes Fiserv to offer the comprehensive services of the large national banks. Additionally, the earnings rate is four percent (4%) which is double the larger bank rates and the fees for services are significantly lower. While neither proposal expects a financial cost to the city after earnings offsets in this high rate environment, HCN Bank would provide offset coverage in a much lower rate environment than Wells Fargo.
HCN Bank has one point of contact for all services and has offered to waive all implementation fees.
HCN has also proposed to assist the City with all integration processes and file formats needed. Wells Fargo offers a primary point of contact with several other contacts for various offerings. A final strength of HCN Bank is regarding its support of the Pass Area community with significant donations to many scholarships and sponsorships. While not a direct benefit to the City government, it is a benefit to the community.
The evaluation scoring matrix is below:
AGGREGATE SCORES SUMMARY
Vendor Evaluator 1 Evaluator 2 Evaluator 3 Total Score
HCN Bank 93 87 96 92
Wells Fargo Bank,
N.A. 88 85 94 89
1018
VENDOR SCORES BY EVALUATION CRITERIA
Vendor
Qualifications
Points Based
25 Points (25%)
Pricing
Points
Based
20 Points
(20%)
Experience
(Projects
of similar
size and
scope)
Points
Based
25 Points
(25%)
Professional
References
Points
Based
20 Points
(20%)
Approach
and
Methodology
Points
Based
5 Points
(5%)
Value
Added
Services
Points
Based
5 Points
(5%)
Total
Score
(Max
Score 100)
HCN Bank 21.7 19.3 23.3 20.0 4.7 3.0 92
Wells
Fargo
Bank, N.A.
21.7 15.0 24.0 20.0 4.0 4.3 89
FISCAL IMPACT:
No expected fiscal impact for this contract.
ALTERNATIVES:
1. Adopt Resolution 2023-191 to award a contract for comprehensive banking services to HCN Bank.
2. Decline to award contract to HCN Bank and provide alternative direction to staff.
ATTACHMENTS:
1. Resolution 2023-191, Comp Banking Services.docx
2. Exhibit A - C00948 - PSA Comprehensive Banking Services.pdf 1019
Resolution 2023-191
RESOLUTION 2023-191
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,
APPROVING AWARD OF CONTRACT FOR COMPREHENSIVE BANKING SERVICES
TO HCN BANK
WHEREAS, the City's current banking contract with Wells Fargo ends in August 2024 and Wells Fargo has been the City's bank for the past 20 years; and WHEREAS, industry best practice is to conduct a Request for Proposals (RFP) every five to ten years to ensure the best solution for the City at that time; and WHEREAS, staff issued an RFP on October 20, 2023, and received two proposals prior to the submittal deadline of November 20, 2023; and, WHEREAS, staff contacted all banks that have a presence in the Pass Area to request submissions to the RFP; and,
WHEREAS, the responsive banks were HCN Bank and Wells Fargo; and, WHEREAS, HCN Bank received the highest ranking in the RFP evaluation process.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
SECTION 1. The City Council approves the Comprehensive Banking Services Agreement with HCN Bank (Exhibit A) and authorizes the City Manager to effect nonsubstantive changes and sign said agreement.
SECTION 2. The City Council authorizes the City Manager, or designee, to make necessary budget adjustments, appropriations, and transfers related to this resolution.
SECTION 3. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions.
PASSED, APPROVED AND ADOPTED this 12th day of December 2023.
Mayor
City of Banning
1020
Resolution 2023-191
ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM AND
LEGAL CONTENT:
Serita R. Young, City Attorney
Richards, Watson & Gershon
1021
Resolution 2023-191
CERTIFICATION:
I, Caroline Patton, Deputy City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2023-191, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 12th day of December 2023 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Deputy City Clerk
City of Banning, California
1022
Resolution 2023-191
EXHIBIT A
Comprehensive Banking Services Agreement
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AGREEMENT FOR PROFESSIONAL SERVICES (C00948) FOR
COMPREHENSIVE BANKING SERVICES BY AND BETWEEN CITY OF
BANNING AND HCN BANK
THIS AGREEMENT FOR PROFESSIONAL SERVICES (herein “Agreement”) is made and entered into this day: ___________________, (“Effective Date”) by and between the CITY OF BANNING, a California municipal corporation (“City”) and HCN Bank, a California Corporation (“HCN”). City and HCN are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City has sought by proposals with RFP 23-039 for the performance of the services for the Comprehensive Banking Services and as further defined and described particularly in Article 1 of this Agreement.
B. HCN, following submission of a proposal for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by City to perform those services.
C. The Parties desire to formalize the selection of HCN for performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
D. Pursuant to the City of Banning’s Municipal Code, City has authority to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1. SERVICES OF HCN
1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement, HCN shall provide those services specified in the “Scope of Services” attached hereto as Exhibit A and incorporated herein by this reference, which services may be referred to herein as the “Services” hereunder. As a material inducement to City entering into this Agreement, HCN represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the Services contemplated herein. HCN shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services described herein. HCN covenants that it shall follow the highest professional standards in performing the Services required hereunder and that all materials will be of good quality, and fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards 1024
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of practice recognized by one or more first-class firms performing similar work under similar circumstances.
1.2 Contract Documents and Exhibits.
This Agreement includes the Request for Proposal and HCN’s accepted proposal (“Contract Documents”), both of which are on file with the City and incorporated herein by this general reference as though fully set forth herein. Exhibit A (Scope of Services), Exhibit B (Special Requirements), Exhibit C (Schedule of Compensation), and Exhibit D (Schedule of Performance) also constitute a part of this Agreement and are incorporated into this Agreement by this reference. Except as set forth in Section 1.10 regarding Exhibit B, this Agreement controls over the Contract Documents and the provisions in Exhibits A, B and C.
1.3 Compliance with Law.
HCN shall keep itself informed concerning all ordinances, resolutions, statutes, rules, and regulations of City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered, and shall render all Services hereunder in accordance therewith.
1.4 Licenses, Permits, Fees and Assessments.
HCN shall obtain and maintain during the term of this Agreement, at its sole cost and expense, all necessary licenses, permits, certificates and approvals required by law for the performance of Services under this Agreement, including a City business license. HCN shall have the sole obligation to pay for all fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and which arise from or are necessary for HCN’s performance of the Services required by this Agreement. HCN shall indemnify, defend and hold harmless City, its officers, employees or agents, against all such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.
1.5 Familiarity with Services.
By executing this Agreement, HCN warrants that HCN: (i) has thoroughly investigated and considered the Scope of Services to be performed, (ii) has carefully considered how the Services should be performed, and (iii) fully understands the facilities and any difficulties and restrictions attending performance of the Services under this Agreement. If the Services involve work upon any site, HCN warrants that HCN has or will investigate the site and is or will be fully acquainted with the conditions existing therein, prior to commencement of Services hereunder. Should HCN discover any latent or unknown conditions, which will materially affect the performance of the Services hereunder, HCN shall immediately inform City of such fact and shall not proceed except at HCN’s risk until written instructions are received from the Contract Officer (defined in Section
1.12. A).
1.6 Prevention of Loss and Damages.
HCN shall adopt reasonable methods during the Term (defined in Section 3.4) to furnish continuous protection to the work product, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for 1025
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all such damages, to persons or property, until acceptance of the Services by City, except such losses or damages as may be caused by City’s own negligence.
1.7 Further Responsibilities of Parties.
Both Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonable necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither Party shall be responsible to perform the Services of the other.
1.8 Additional Services.
City shall have the right at any time during the performance of the Services, without invalidating this Agreement, to order extra services beyond that specified in the Scope of Services or to make changes by altering, adding to or deducting from the Services. No such extra services may be undertaken unless a written order is first given by the Contract Officer to HCN, which written order incorporates therein an adjustment in (i) the Contract Sum (as defined in Section
2.1), and/or (ii) the Schedule of Performance, (as defined in Section 3.2), and which written order is approved in writing by HCN. Any increase to the Schedule of Compensation, whichever is less; or in the Schedule of Performance of up to one hundred eighty (180) days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by City Council. It is expressly understood by HCN that the provisions of this Section shall not apply to Services which are specifically set forth in the Scope of Services or which are reasonably contemplated therein. HCN hereby acknowledges that it accepts the risk that the Services to be provided pursuant to the Scope of Services may be more costly or time consuming than HCN anticipates and that HCN shall not be entitled to additional compensation therefor.
1.9 Facilities and Equipment.
Except as otherwise provided, HCN shall, at its own cost and expense, provide all facilities and equipment necessary to perform the Services required by this Agreement. City shall make available to HCN only physical facilities such as desks, filing cabinets, and conference space (“City Facilities”), as City deems, in its sole discretion, to be reasonably necessary for HCN’s use while consulting with City employees and reviewing records and the information in possession of City. The location, quality, and time of furnishing City Facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facilities that may involve incurring any direct expense, including but not limited to a computer, long distance telephone, network data, internet or other communication charges, vehicles and reproduction facilities.
1.10 Special Requirements.
Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibit B and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit B and any other provisions of this Agreement, the provisions of Exhibit B shall govern.
1.11 Corrections.
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In addition to the indemnification obligations set forth in Article 4, and Sections 1.4, 1.13,
5.3, 5.4, and 6.3, HCN shall correct, at its expense, all errors in the Services which may be disclosed during City’s review of HCN’s report or plans. Should HCN fail to make such correction(s) in a reasonably timely manner, such correction(s) may be made by City, and the cost thereof shall be charged to HCN. In addition to all other available remedies, City may deduct the cost of such correction(s) from any retention amount held by City, or may withhold payment otherwise owed HCN under this Agreement up to the amount of the cost of correction(s), as provided in Section 6.3.
1.12 Party Representatives.
A. Contract Officer: For the purposes of this Agreement, the Contract Officer shall be the City Manager, or such other person designated in writing by the City Manager (“Contract Officer”). Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of City required hereunder to carry out the terms of this Agreement.
B. Principals and Personnel of HCN.
1) HCN Representative: The following principal of HCN is hereby designated as being the HCN Representative authorized to act on HCN’s behalf regarding the Services specified herein and make all decisions in connection therewith:
Name Title
Linda Hanley Vice President
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing HCN Representative were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing HCN Representative shall be responsible during the term of this Agreement for directing all activities of HCN and devoting sufficient time to personally supervise the Services hereunder. All personnel of HCN, and any authorized agents, shall at all times be under the exclusive direction and control of the HCN Representative. For purposes of this Agreement, the foregoing HCN Representative may not be replaced nor may their responsibilities be substantially reduced or reassigned by HCN without the express written approval of City. It shall be HCN’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the Services, and HCN shall refer any decisions which must be made by City to the Contract Officer.
2) HCN’s Personnel: HCN has, or will secure at its own expense, all personnel required to perform the Services required under this Agreement. All of the Services required under this Agreement shall be performed by HCN or under its supervision, and all personnel engaged in the Services shall be qualified to perform such Services. HCN shall make every reasonable effort to maintain the stability and continuity of HCN’s staff and sub-contractors, if any, assigned to perform the Services required under this Agreement. HCN shall notify City of all changes in HCN’s staff and sub-contractors, if any, assigned to perform the Services required under this Agreement, prior to and during any such performance. In the event that City, in its sole 1027
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discretion, at any time during the term of this Agreement, desires to reassign any staff or subcontractor of HCN, City shall give notice as set forth in Section 8.1. HCN shall, immediately upon the receipt of the notice to re-assign staff from City, reassign such person or persons.
1.13 Independent Contractor.
A. HCN is an independent contractor and not an employee of City. HCN shall have no power to incur any debt, obligation, or liability on behalf of City. All Services provided pursuant to this Agreement shall be performed by HCN or under its supervision. HCN will determine the means, methods, and details of performing the Services. Any additional personnel performing Services under this Agreement on behalf of HCN shall also not be employees of City and shall at all times be under HCN’s exclusive direction and control. HCN 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. HCN shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
B. HCN shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from HCN’s personnel practices. City shall have the right to offset against the amount of any fees due to HCN under this Agreement any amount due to City from HCN as a result of HCN’s failure to promptly pay to City any reimbursement or indemnification arising under this Section.
1.14 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of HCN, the HCN Representative and employees were a substantial inducement for City to enter into this Agreement.
Therefore, HCN shall not contract with any other entity to perform in whole or in part the Services required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty-five percent (25%) of the present ownership and/or control of HCN, taking all transfers into account on a cumulative basis.
In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release HCN or any surety of HCN of any liability hereunder without the express consent of City.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, as full compensation for Services satisfactorily rendered, City shall pay HCN at the hourly rates set forth in the “Schedule of Compensation” attached hereto as Exhibit C and incorporated herein by this reference. The 1028
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Schedule of Compensation shall include the attendance of HCN at all project meetings reasonably deemed necessary by City. Coordination of the performance of the Services with City is a critical component of the Services. If HCN is required to attend additional meetings to facilitate such coordination, HCN shall not be entitled to any additional compensation for attending those meetings.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion of the Services, (ii) payment in accordance with specified tasks or the percentage of completion of the Services, (iii) payment for time and materials based upon HCN’s rates as specified in the Schedule of Compensation, provided that time estimates are provided for the performance of sub tasks, (iv) such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses.
City shall only reimburse HCN for those actual and necessary expenses expressly set forth in Exhibit C. Reimbursable expenses may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual sub-contractor expenses of an approved sub-contractor pursuant to Section 1.14, and only if specified in the Schedule of Compensation.
2.4 Unauthorized Services and Expenses.
City will not pay for any Services or reimburse for any expenses incurred which are not specified in the Scope of Services, unless authorized in writing as set forth in Section 1.8 of this Agreement. City shall make payment for such authorized additional Services and expenses in accordance with Article 2 of this Agreement.
2.5 Invoices.
Each month HCN shall furnish to City an original invoice for all Services performed and expenses incurred during the preceding month. Each such invoice shall contain all of the information set forth in Section III of Exhibit C to this Agreement. By submitting an invoice for payment under this Agreement, HCN is certifying compliance with all provisions of the Agreement. HCN shall not invoice City for any duplicate Services performed by more than one person.
City shall independently review each invoice submitted by HCN to determine whether the Services performed and expenses incurred are in compliance with the provisions of this Agreement. City will use its best efforts to cause HCN to be paid within thirty (30) days of receipt of HCN’s correct and undisputed invoice, except as to any charges for Services performed or expenses incurred by HCN which are disputed by City, or as provided in Section 6.3. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to HCN for correction and resubmission. Review and payment by City of any invoice provided by HCN shall not constitute waiver of any rights or remedies provided herein or any applicable law. 1029
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2.6 Waiver.
Payment to HCN for Services performed pursuant to this Agreement shall not be deemed to waive any defects in Services performed by HCN.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement; provided, however, that the foregoing shall not be construed to limit or deprive a Party of the benefits of any grace or use period allowed in this Agreement.
3.2 Schedule of Performance.
HCN shall commence the Services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all Services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit D and incorporated herein by this reference.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the Services rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of HCN. Such unforeseeable consequences include, but are not restricted to, acts of God or public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, if HCN shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the Services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified, subject to the provisions of Section 1.8. The Contract Officer’s determination (or the City Council’s determination, in the event the period of enforced delay exceeds the period specified in Section
1.8) shall be final and conclusive upon the Parties to this Agreement. In no event shall HCN be entitled to recover damages against City for any delay in the performance of this Agreement, however caused; HCN’s sole remedy shall be the extension of the Agreement pursuant to this Section.
3.4 Term.
The Term of this Agreement shall be from the Effective Date through December 31, 2028, unless sooner terminated as provided in Article 6 of this Agreement or extended as provided in Sections 1.8 and 3.3 of this Agreement. Maximum term and any subsequent amendment or modification shall not exceed five (5) years.
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ARTICLE 4. INSURANCE AND INDEMNIFICATION
4.1 Minimum Scope and Limits of Insurance.
HCN shall procure and at all times during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows:
A. Commercial General Liability Insurance with a minimum limit of $1,000,000.00 per occurrence for bodily injury, personal injury and property damage and a general aggregate limit of $2,000,000.00 per project or location. If HCN is a limited liability company, the commercial general liability coverage shall be amended so that HCN and its managers, members, affiliates, employees, agents and other persons necessary or incidental to its operation are insureds.
B. Automobile Liability Insurance for any owned, non-owned or hired vehicle used in connection with the performance of this Agreement with a combined single limit of $1,000,000.00 per accident for bodily injury and property damage. If HCN does not use any owned, non-owned or hired vehicles in the performance of Services under this Agreement, HCN shall obtain a non-owned auto endorsement to the Commercial General Liability policy.
C. Workers’ Compensation Insurance as required by the State of California and Employer’s Liability Insurance with a minimum limit of $1,000,000.00 per accident for bodily injury or disease. If HCN has no employees while performing Services under this Agreement, workers’ compensation policy is not required; however, HCN shall execute a declaration that it has no employees.
D. Professional Liability/Errors and Omissions Insurance with minimum limits of $1,000,000.00 per claim and in the aggregate.
4.2 Acceptability of Insurers.
The insurance policies required under this Article shall be issued by an insurer admitted to write insurance in the State of California with a rating of A:VII or better in the latest edition of the A.M. Best Insurance Rating Guide. Self-insurance shall not be considered to comply with the insurance requirements under this Article.
4.3 Additional Insured.
The commercial general and automobile liability policies shall contain an endorsement naming City, its officers, employees, agents and volunteers as additional insureds.
4.4 Primary and Non-Contributing.
The insurance policies required under this Article shall apply on a primary noncontributing basis in relation to any other insurance or self-insurance available to City. Any insurance or self-insurance maintained by City, its officers, employees, agents or volunteers, shall be in excess of HCN’s insurance and shall not contribute with it. 1031
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4.5 HCN’s Waiver of Subrogation.
The insurance policies required under this Article shall not prohibit HCN and HCN’s employees, agents or sub-contractors from waiving the right of subrogation prior to a loss.
HCN hereby waives all rights of subrogation against City.
4.6 Deductibles and Self-Insured Retentions.
Any deductibles or self-insured retentions must be declared to and approved by City. At City’s option, HCN shall either reduce or eliminate the deductibles or self-insured retentions with respect to City; or HCN shall procure a bond guaranteeing payment of losses and expenses.
4.7 Cancellations or Modifications to Coverage.
HCN shall not cancel, reduce or otherwise modify the insurance policies required by this Article during the term of this Agreement. The commercial general and automobile liability policies required under this Agreement shall be endorsed to state that should the issuing insurer cancel the policy before the expiration date, the issuing insurer will endeavor to mail 30 days’ prior written notice to City. If any insurance policy required under this Article is canceled or reduced in coverage or limits, HCN shall, within two (2) Business Days (as defined in Section 8.12) of notice from the insurer, phone, fax or notify City via certified mail, return receipt requested, of the cancellation of or changes to the policy.
4.8 City Remedy for Noncompliance.
If HCN does not maintain the policies of insurance required under this Article in full force and effect during the term of this Agreement, or in the event any of HCN’s policies do not comply with the requirements under this Article, City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may, but has no duty to, take out the necessary insurance and pay, at HCN’s expense, the premium thereon. HCN shall promptly reimburse City for any premium paid by City, or City may withhold amounts sufficient to pay the premiums from payments due to HCN.
4.9 Evidence of Insurance.
Prior to the performance of Services under this Agreement, HCN shall furnish the City Clerk with a certificate or certificates of insurance and all original endorsements evidencing and effecting the coverages required under this Article. The endorsements are subject to City’s approval. HCN may provide complete, certified copies of all required insurance policies to City.
HCN shall maintain current endorsements on file with the City Clerk. HCN shall provide proof to the City Clerk that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. HCN shall furnish such proof at least two (2) weeks prior to the expiration of the coverages.
4.10 Indemnity Requirements not Limiting.
Procurement of insurance by HCN shall not be construed as a limitation of HCN’s 1032
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liability or as full performance of HCN’s duty to indemnify City under this Agreement.
4.11 Sub-contractor Insurance Requirements.
HCN shall require each of its sub-contractors that perform Services under this Agreement to maintain insurance coverage that meets all of the requirements of this Article.
4.12 Indemnification, Hold Harmless, and Duty to Defend.
A. Indemnification of City.
1) To the fullest extent permitted by law, HCN shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively “Indemnitees”), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively “Liabilities”), at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of HCN, its officers, agents, servants, employees, sub-contractors, materialmen, HCNs or their officers, agents, servants or employees (or any entity or individual that HCN shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties.
HCN shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of the Indemnitees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense. HCN shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith.
2) HCN shall pay all required taxes on amounts paid to HCN under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. HCN shall fully comply with the workers’ compensation law regarding HCN and HCN’s employees. HCN shall indemnify and hold City harmless from any failure of HCN to comply with applicable workers’ compensation laws. City may offset against the amount of any fees due to HCN under this Agreement any amount due to City from HCN as a result of HCN’s failure to promptly pay to City any reimbursement or indemnification arising under this subparagraph A.2.
3) HCN shall obtain executed indemnity agreements with provisions identical to those in this Article from each and every sub-contractor or any other person or entity involved by, for, with or on behalf of HCN in the performance of this Agreement. If HCN fails to obtain such indemnity obligations, HCN shall be fully responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Liabilities at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to 1033
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the acts or omissions of HCN’s sub-contractor, its officers, agents, servants, employees, subcontractors, materialmen, HCNs or their officers, agents, servants or employees (or any entity or individual that HCN’s sub-contractor shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties.
B. Workers’ Compensation Acts not Limiting. HCN’s indemnifications and obligations under this Article, or any other provision of this Agreement, shall not be limited by the provisions of any workers’ compensation act or similar act. HCN expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents, employees and volunteers.
C. Insurance Requirements not Limiting. City does not, and shall not, waive any rights that it may possess against HCN because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The indemnities in this Article shall apply regardless of whether or not any insurance policies are determined to be applicable to the Liabilities, tax, assessment, penalty or interest asserted against City.
D. Survival of Terms. HCN’s indemnifications and obligations under this Article shall survive the expiration or termination of this Agreement.
ARTICLE 5. RECORDS, REPORTS, AND RELEASE OF INFORMATION
5.1 Service Records.
HCN shall keep, and require sub-contractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and Services performed hereunder (the “Service Records”), as shall be necessary to perform the Services required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. Any and all such Service Records shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such Service Records at all times during normal business hours of City, including the right to inspect, copy, audit and make copies and transcripts from such Service Records. Such Service Records shall be maintained for a period of three (3) years following completion of the Services hereunder, and City shall have access to such Service Records in the event any audit is required. In the event of dissolution of HCN’s business, custody of the Service Records may be given to City, and access shall be provided by HCN’s successor in interest (“HCN’s Successor”). If custody of the Service Records is given to HCN’s Successor, HCN shall give written notice to City of the transfer of the Service Records to HCN’s Successor. The notice shall include contact information (address and telephone number) for HCN’s Successor, and access shall be provided to City by HCN’s Successor.
5.2 Reports.
HCN shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement as the Contract Officer shall require.
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of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services contemplated herein, HCN shall promptly notify the Contract Officer of that fact, circumstance, technique or event and the estimated increased or decreased cost related thereto.
5.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the “HCN Documents”) prepared by HCN, its employees, sub-contractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement. HCN shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the HCN Documents hereunder. Any use, reuse or assignment of such completed HCN Documents for other projects and/or use of uncompleted HCN Documents without specific written authorization by HCN will be at City’s sole risk and without liability to HCN, and HCN’s guarantee and warranties shall not extend to such use or assignment. HCN may retain copies of such HCN Documents for its own use. HCN shall have an unrestricted right to use the concepts embodied therein. All sub-contractors shall provide for assignment to City of all HCN Documents prepared by them; and in the event HCN fails to secure such assignment, HCN shall indemnify City for all damages resulting therefrom.
5.4 Confidentiality and Release of Information.
A. All information gained or work product produced by HCN in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to HCN. HCN shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer.
B. HCN, its officers, employees, agents or sub-contractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the Services performed under this Agreement.
Response to a subpoena or court order shall not be considered “voluntary” provided HCN gives City notice of such court order or subpoena.
C. If HCN, or any officer, employee, agent or sub-contractor of HCN, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from HCN for any damages, costs and fees, including attorneys’ fees, caused by or incurred as a result of HCN’s conduct.
D. HCN shall promptly notify City should HCN, its officers, employees, agents or sub-contractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any Party regarding this Agreement and the Services performed thereunder. City retains the right, but has no obligation, to represent HCN or be present at any deposition, hearing or similar proceeding. HCN agrees to cooperate fully with City and to provide 1035
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City with the opportunity to review any response to discovery requests provided by HCN.
However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite the response.
ARTICLE 6. ENFORCEMENT OF AGREEMENT AND TERMINATION
6.1 California Law.
This Agreement, and any dispute arising from the relationship between the Parties to this Agreement, shall be interpreted, construed and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and HCN covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
6.2 Disputes; Default.
A. In the event that City determines HCN is in default under the terms of this Agreement, City shall have no obligation or duty to continue compensating HCN for any Services performed after the date of default. In addition to the provisions of Section 4.8, and the right to terminate pursuant to Section 6.7, if the City Manager determines that HCN is in default in the performance of any of the terms or conditions of this Agreement, City may serve HCN with written notice of the default. HCN shall have ten (10) calendar days after service upon it of the notice in which to cure the default by rendering a satisfactory performance. In the event that HCN fails to cure its default within such period of time, City may, notwithstanding any other provision of this Agreement, terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.
B. In the event of termination pursuant to this Section, City may take over the Services and prosecute the same to completion by contract or otherwise, and HCN shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to HCN for the purpose of set-off or partial payment of the amounts owed City as provided in Section 6.3.
6.3 Retention of Funds.
HCN hereby authorizes City to deduct from any amount payable to HCN (whether or not arising out of this Agreement): (i) any payment amount of which may be in dispute hereunder or which is necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, (ii) all amounts retained pursuant to the provisions of Section 4.8, (iii) all amounts for which City may be liable to third parties, by reason of HCN’s acts or omissions in performing or failing to perform HCN’s obligation under this Agreement, and (iv) all payments due or that become due to HCN during the period that HCN or any of its sub-contractors fail to maintain any required insurance in full force and effect, until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period 1036
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satisfactory to City, as provided in Section 4.9, above. In the event that any claim is made by a third party, the amount or validity of which is disputed by HCN, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim.
The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of HCN to insure, indemnify, and protect City as elsewhere provided herein.
6.4 Waiver.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any Services by HCN shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either Party of any default must be in writing, and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
6.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
6.6 Legal Action.
In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, HCN must file a statutory claim pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action against City under this Agreement.
6.7 Termination Prior to Expiration of Term.
This Article 6 shall govern any termination of this Agreement except as specifically provided in Section 6.2 for termination for default of HCN. City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days’ written notice to HCN, except that where termination is due to the fault of HCN, the period of notice may be a shorter time as may be determined by the Contract Officer. In addition, HCN reserves the right to terminate this Agreement at any time, with or without cause, upon sixty (60) days’ written notice to City, except that where termination is due to the fault of City, the period of notice may be a shorter time as HCN may determine. Upon receipt of any notice of termination, HCN shall immediately cease all Services hereunder except such as may be specifically approved by the Contract Officer. Except where HCN has initiated termination, HCN shall be entitled to 1037
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compensation for all Services rendered prior to the effective date of the notice of termination and for any Services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section
6.3. In the event HCN has initiated termination, HCN shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating Party need not provide the non-terminating Party with the opportunity to cure pursuant to Section 6.2.
6.8 Attorneys’ Fees.
In any litigation or other proceeding by which a Party seeks to enforce its rights under this Agreement (whether in contract, tort or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing Party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees. Attorneys’ fees shall include attorney’s fees on any appeal, and in addition the Party entitled to attorneys’ fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 7. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
7.1 Non-liability of City Officers and Employees.
No officer or employee of City shall be personally liable to HCN, or HCN’s Successor, in the event of any default or breach by City or for any amount which may become due to HCN or HCN’s Successor, or for breach of any obligation of the terms of this Agreement.
7.2 Conflict of Interest.
HCN covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder HCN’s performance of Services under this Agreement. HCN further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or sub-contractor without the express written consent of the Contract Officer. HCN agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
No officer or employee of City shall have any direct or indirect financial interest in this Agreement within the scope of Government Code section 1090, nor shall any such officer or employee make, participate in making, or use his or her official position to influence, any City decision relating to the Agreement which has a material financial effect on his or her financial interests or the financial interests of any corporation, partnership or association in which he or she is, directly or indirectly, interested, in violation of any State statute or regulation. HCN warrants that it has not paid or given, and will not pay or give any third party any money or other consideration for obtaining this Agreement.
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HCN and its officers, employees, associates and sub-contractors, if any, shall comply with all conflict of interest statutes of the State of California applicable to HCN’s Services under this Agreement, including the Political Reform Act (Gov. Code § 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, HCN may perform similar services for other clients; but HCN and its officers, employees, associates and sub-contractors shall not, without the Contract Officer’s prior written approval, perform services for another person or entity for whom HCN is not currently performing services that would require HCN or one of its officers, employees, associates or sub-contractors to abstain from a decision under this Agreement pursuant to a conflict of interest statute. HCN shall incorporate a clause substantially similar to this Section into any subcontract that HCN executes in connection with the performance of this Agreement.
7.3 Covenant Against Discrimination.
HCN covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, or ancestry in the performance of this Agreement. HCN shall take affirmative action to insure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry, or other protected class.
7.4 Unauthorized Aliens.
HCN hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should HCN so employ such unauthorized aliens for the performance of Services covered by this Agreement, and should the any liability or sanctions be imposed against City for such use of unauthorized aliens, HCN hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by City.
ARTICLE 8. MISCELLANEOUS PROVISIONS
8.1 Notices.
Any notice, demand, request, document, consent, approval, bill, invoice, report or other communication required or permitted under this Agreement shall be in writing and conclusively deemed effective: (a) on confirmed delivery by courier service or overnight delivery service during HCN’s and City’s regular business hours; or (b) three (3) Business Days after deposit in the United States mail, by certified or registered mail, and addressed to the Party to be notified as set forth below:
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If to City Attn: Lincoln Bogard
City’s Director of Admin Services
City of Banning
99 East Ramsey Street
Banning, California 92220
Email: [email protected]
With a courtesy copy to: Serita R. Young, City Attorney Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, California 90071
Email: [email protected]
If to HCN: Attn: Kevin Farrenkopf
President and CEO
HCN Bank
1540 C. East 6th Street
Beaumont, CA 92223
Email: [email protected]
8.2 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
8.3 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
8.4 Integration; Amendment.
This Agreement, and all exhibits referred to in this Agreement, constitute the final, complete and exclusive statement of the terms of the agreement between the Parties pertaining to the subject matter of this Agreement and supersede all other and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the Parties, and none shall be used to interpret this Agreement. No Party has been induced to enter into this Agreement by, nor is any Party relying on, any representation or warranty except those expressly set forth in this Agreement. No amendment to or modification of this Agreement, nor any provision or breach hereof waived, shall be valid unless made in writing and approved by HCN and by City Council.
The Parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
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8.5 Severability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
8.6 Mutual Cooperation.
A. City’s Cooperation. City shall provide HCN with all pertinent data, documents and other requested information as is reasonably available for HCN’s proper performance of the Services required under this Agreement.
B. HCN’s Cooperation. In the event any claim or action is brought against City relating to HCN’s performance of Services rendered under this Agreement, HCN shall render any reasonable assistance that City requires.
8.7 No Third Party Beneficiaries Intended.
This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.
8.8 Final Payment Acceptance Constitutes Release.
The acceptance by HCN of the final payment made under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to HCN for anything done, furnished or relating to HCN’s Services. Acceptance of payment shall be any negotiation of City’s check or the failure to make a written extra compensation claim within ten (10) calendar days of the receipt of that check. However, approval or payment by City shall not constitute, nor be deemed, a release of the responsibility and liability of HCN, its employees, subcontractors and agents for the accuracy and competency of the information provided and/or Services performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the Services prepared by HCN, its employees, sub-contractors and agents.
8.9 Non-Appropriation of Funds.
Payments to be made to HCN by City for Services performed within the current fiscal year which are within the current fiscal budget and within an available, unexhausted fund.
In the event that City does not appropriate sufficient funds for payment of HCN’s Services beyond the current fiscal year, this Agreement shall cover payment for HCN’s Services only to the conclusion of the last fiscal year in which City appropriates sufficient funds and shall automatically terminate at the conclusion of such fiscal year.
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8.10 Headings.
The headings in this Agreement are included solely for convenience of reference and shall not affect the interpretation of any provision of this Agreement or any of the rights or obligations of the Parties to this Agreement.
8.11 Word Usage.
Unless the context clearly requires otherwise, (a) the words “shall,” “will” and “agrees” are mandatory and “may” is permissive; (b) “or” is not exclusive; and (c) “includes” or “including” are not limiting.
8.12 Business Days.
“Business Days” refers to days that the Banning City Hall is open for business.
8.13 Corporate Authority.
The persons executing this Agreement on behalf of the Parties hereto warrant that (i): such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of that Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which that Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
8.14 Electronic Signatures.
Each Party may adopt as its signature an electronic identification consisting of a symbol or code that is affixed to or contained in each document transmitted by such Party (“electronic signature”). The Parties hereto herby agree that electronic signatures are acceptable, shall have the same force and effect under the law as original wet signatures, and shall be sufficient to verify that the Parties have executed this Agreement and such other documents transmitted by the Parties.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first hereinabove written.
CITY OF BANNING HCN
Douglas Schulze, Date
City Manager
NAME: Date
TITLE:
NAME: Date
TITLE:
ATTEST:
Tax ID No.
Caroline Patton Date
Deputy City Clerk
Address:
APPROVED AS TO FORM:
Richards, Watson & Gershon
City Council Approval: _____________
Serita R. Young Date
City Attorney
NOTE: PROOF OF AUTHORITY TO BIND CONTRACTING PARTY REQUIRED. APPROPRIATE
ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO HCN’S BUSINESS ENTITY.
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Exhibit “A”-1
11303-0008\2344655v8.doc
EXHIBIT “A”
SCOPE OF SERVICES
I. HCN will perform the following Services in connection with providing Comprehensive Banking Services prepared in connection therewith:
II. As part of the Services, HCN will prepare and deliver the following tangible work products and services to City:
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4.2 – Bank Liability
In the event of any damage for which either party may be liable to the other or to a third party pursuant to the services provided, we would expect that all pares undertake reasonable efforts to cooperate with each other in performing loss recovery efforts and in connecon with any acons where the pares may be obligated to defend or elects to pursue against a third party.
Per agreement, typically the Bank will be excused from failing to act or any delay in acng if is caused by legal constraint, civil disorder, wars, acts of terrorism, strikes, equipment or availability failure, labor disputes, fires, floods, acts of God, federal, state or municipal acon, statute, ordinance or availability or any other causes not within its reasonable control.
We agree to exercise due care and diligence when rendering Services. However, you agree that neither the Bank nor its service providers will be liable to you for damages, costs, or losses of any kind arising out of your use of the System or Services unless such damages, costs, or losses are the result of gross negligence or intenonal wrongdoing by us, and that the same have caused actual damages to you, and provided further that, in such event our liability shall be limited to the amount of the processed transacons and reduced to the extent that the resulng damages could have been avoided or migated through a reasonable verificaon by you of your account statements or other informaon provided by us.
4.3 – Disaster Recovery
At HCN Bank, we understand the crical importance of maintaining connuous operaons and service delivery, especially in mes of unforeseen emergencies or system disrupons. Our disaster recovery (DR) plan is designed with resilience, rapid recovery, and client support as its cornerstones.
HCN banking services are provided to clients both electronically and in person, both at our branches and at client sites. As such, our approach to disaster recovery differs between the three different service delivery methodologies. At the core of both approaches are key fundamentals that include:
Comprehensive Risk Assessment
Robust Data Protecon
Infrastructure Redundancy
Clear Communicaon Protocols
Regular Tesng and Updates
Vendor and Partner Integraons
Employee Training and Awareness
Compliance and Regulatory Adherence
Electronic Banking
HCN’s electronic banking services are provided by our strategic partner and core provider, Fiserv Inc.
Fiserv is publicly traded and one of the largest banking and financial services core providers in the world.
As such they have significant measures in place to ensure upme, security, and resilience of its systems.
While upme has been at 99+% for many years it is sll crical to ensure a robust and regularly tested disaster recovery plan in place. Please see aached an overview of the disaster recovery and backup Exhibit "A" Exhibit "A" - 2
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plans with associated protocols. Should the City want to see greater details of the test results for the disaster recovery plans of specific data centers and/or specific service lines, we would be happy to provide those for addional review. Since they are quite detailed and lengthy, providing them as oponal informaon seemed to be prudent. Please do let us know if the City would like to review these documents.
In-Branch Banking
HCN couples its robust electronic banking services with interacve in-person services provided at our branches and at our client locaons as needed. At HCN Bank, our branch focused disaster recovery plan (DRP) is a comprehensive blueprint designed to restore branch operaons swily and securely in the event of a disaster. It is anchored on the following core components:
Data Protecon: All customer and operaonal data is regularly backed up and replicated to secure, off-site facilies, ensuring no data loss and rapid restoraon capabilies. System Redundancy: Crical systems can operate on redundant hardware with failover capabilies, housed in geographically diverse locaons to migate the risk of localized events. Emergency Response Team: Our team has a designated emergency response team, trained to enact the DRP, coordinate with leadership, staff, vendors, and communicate effecvely with all stakeholders.
Vendor Partnerships: We maintain strong partnerships with key vendors for essenal services such as power, telecommunicaons, and IT support to ensure prompt restoraon of services. Alternate Work Arrangements: In case of physical branch inaccessibility, alternate branch locaons and remote access capabilies are prearranged to enable staff to connue operaons outside of a designated branch locaon.
Customer Communicaon Plan: A clear communicaon strategy is in place to keep customers and staff informed about the status of their accounts and accessibility to banking services during and aer a disaster.
Regular Drills and Updates: The DRP is not only rigorously tested through regular drills but also consistently updated to address emerging threats and incorporate new recovery technologies and methods.
This DRP is crical in maintaining the resilience of our branch networks, ensuring that HCN Bank can connue to serve its customers and community, even in the face of unforeseen disrupons. If the City would like to review HCN’s enre Business Connuity and Disaster Recovery Plan, the Bank can make the documents available for the City to review.
Client Outages
Not only do we develop a level of preparedness for possible outages at the bank, but we also plan for ways to assist our clients with their banking needs in the event of a client-related outage/disaster. Should clients experience an outage, HCN can assist by facilitang and processing banking transacons either in person at the client’s site or remotely through our teams at the branches. The bank can send representaves to the City to facilitate deposits, document signing, ACH payments, wire transfers and other funcons that normally rely on a client’s systems to be operaonal.
Each of the three approaches to disaster recovery noted above will allow the City to connue its banking funcons necessary to connue operaons and delivery of community services to its constuents.
Exhibit "A" Exhibit "A" - 3
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4.4 – Monthly Statements and Account Analysis
Transacon history can be obtained within Business Online Banking simply by ulizing the drop-down menu at the account and selecng Previous Business Day. There are other opons also available including a customer defined specific date range. This informaon is also available to download and export.
Sample of Statement Retrieval Process:
Exhibit "A" Exhibit "A" - 4
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Exhibit #1 is a sample Account Analysis Statement which is in two parts: one is the bill to account showing all linked accounts and two is the individual account breakdown related to the account being billed. Exhibit #2 is a Sample DDA statement.
4.5 – Online Banking Services
HCN Bank’s Business Online Banking portal provides The City with the ability to iniate transacons, review account history, and manage everyday funcons without leaving the office. The Bank’s online portal is available free of a monthly service fee and can be accessed 24 hours a day, 7 days a week. Review up to 45 days of all account acvies
Obtain 18 months of account statements
Iniate Domesc and Internaonal wire transfers
Search posted transacons
Track checks by amount, check number or date
Obtain images of paid & presented checks
View images of deposited items
Transfer between accounts
Book Transfers
Iniate and search stop payments
Download account acvity into your financial applicaon Client Administraon
Mul-Level User Access
Process deposits electronically via Remote Deposit Capture Upload Posive Pay files
Originate ACH transacons
Bill Pay
4.6 – Wire Transfer Services
The Bank uses a comprehensive and efficient system for processing wires called Payments Exchange. This service is available to use as part of our Business Online Banking program. Payments Exchange streamlines every step in the wire transfer process, enabling straight-through processing and a paperless transacon environment, which means you can handle a higher volume of wires more efficiently.
With Payments Exchange, you can reduce errors and eliminate redundant, manual steps in a single, secure system.
Flexible, secure, and easy to use, the web-based Payments Exchange soluon provides a single entry point that triggers verificaon, OFAC screening, posng to the account processing system, delivery to the Federal Reserve and automated customer noficaons. Payments Exchange is backed by built-in security features including customized authorizaon levels, dual controls, and data encrypon to protect the privacy of the wire transfer data.
The cut-off me for Wires iniated by online banking is 1:00 p.m. PST. We will accommodate late requests if possible based on deadlines set by the Federal Reserve Bank. Add-on security layers to control access using tokens; Real-me fraud prevenon screening. Dual controls available for entry of outbound wires, online storage and retrieval of recurring wire templates, auto-fill wire entry reduces keystrokes and errors, comprehensive edits ensure compliance with Federal Reserve requirements for outbound wires.
Exhibit "A" Exhibit "A" - 5
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The City would complete a Wire Transfer Agreement and Wire Verificaon Form to enable the Bank to establish Authorized Agent informaon.
The Authorized Agent making the wire request is required to enter a One Time Password (OTP) prior to subming the wire. The Bank will place a call back to the designated telephone number of an Authorized Agent designated to verify all wires.
4.7 – Automated Clearing House (ACH)
Our ACH transfer system is accessed through our Business Online Banking system and can use any operang system. The latest versions of Chrome, Edge, Firefox and Safari are compable with Business Online Banking.
We will transmit debit and/or credit Entries iniated by you to the ACH Network as provided in the NACHA Operang Rules using the following ACH Standard Entry Class Codes (SEC):
CCD – Corporate Credit or Debit – Either a credit or debit Entry where funds are either distributed or consolidated between corporate enes.
CTX – Corporate Trade Exchange – The transfer of funds (debit or credit) within a trading partner relaonship in which payments-related informaon is placed in mulple addenda records. PPD – Prearranged Payment and Deposit
o Direct Deposit – a credit Entry into a consumer’s account. Funds being deposited can represent a variety of products, such as payroll, interest, pension, dividends, etc. o Direct Payment – a preauthorized debit Entry to a consumer’s account. This includes recurring bills that do not vary in amount – insurance premiums, mortgage payments, charitable contribuons, and installment loan payments or standing authorizaons where the amount does vary, such as ulity payments.
Delivery Deadline: All ACH input Files must be received by the Bank no later than 4:00 p.m. PST to be processed on the same day. Input Files containing credit transacons must be transmied or delivered to the Bank at least two (2) Banking Days prior to the Effecve Date of the Entries contained within the File. Input Files containing debit transacons must be transmied or delivered to the Bank at least one (1) Banking Day prior to the Effecve Entry Date of the Entries contained in the File.
Effecve Entry Date: The Effecve Entry Date (contained in Business/Batch Header Record(s) of the ACH input File) is a date specified by Business on which it intends an Entry to be posted and seled. The Effecve Entry Date must be a future date and must not be a Saturday, Sunday, or a holiday observed by the Federal Reserve Bank as provided, unless processing a Same Day ACH File. The Effecve Entry Date may be, but is not necessarily always, the same date as the selement of funds.
File Format: All ACH input Files must be in the standard ACH format based on the NACHA Operang Rules.
HCN Bank is an authorized Originang Depository Financial Instuon (ODFI) for Automated Clearing House (ACH). We accommodate many transfer types, including payroll (direct deposit), tax payments, consumer debits, disbursements and vendor payments. The Bank’s ACH transfer system processes ACH files that are submied via our Business Online Banking product. Both unique and recurring files can be created for ease of use. If selected, the Bank will work with The City for file formang.
Exhibit "A" Exhibit "A" - 6
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Should The City require it, the Bank can accommodate same-day payments. In order to iniate a sameday payment, the file must have a current effecve date and be uploaded by 11:00 a.m. PST. The Bank can also accommodate The City on ACH files submied 1 day prior to the effecve day, if the file is transferred during the courtesy processing window which is from 2:00 p.m. to 4:45 p.m.
Easy to use templates are available for many transfer types, addionally, the templates you generate can be saved for future use. Through integraon with the Federal Reserve’s ACH member list, transfer templates auto-fill informaon about the receiving financial instuon, saving me and prevenng errors.
The Bank’s ACH transfer system enables you to set limits governing the Standard Entry Class type, number and value of transacons iniated. If a transacon is submied aer a limit has been met, it is rejected and an email is sent to you.
Our ACH transfer system replaces manual tasks by automang every step. The system automacally validates, checks for duplicates, runs risk controls, provides you with rejecons or excepon noficaon, and sends immediate confirmaon.
The ACH transfer system employs mulfactor authencaon (MFA) to verify transacons. This feature requires more than one form of authencaon to confirm a transacon, providing addional assurance that transacons are done securely and legimately.
Real-me transfer status updates and transacon history are available online.
If The City makes an error processing, the Reverse ACH Transfer funcon on Business Online Banking within the Bank’s ACH transfer system eliminates many of the manual processes required to reverse ACH transacons. With a click of a mouse, The City can reverse one or mulple transacons, or an enre batch. Per NACHA’s governing rules, the ACH reversal must be filed within 5 days. The Bank processes all reversals on the customer’s behalf and will then memo post to affected accounts if appropriate.
The Bank does not iniate ACH transfers or wires without the client’s approval. Due to the authorizaon procedures the Bank implements, an error on behalf of the Bank would be highly unlikely.
Exhibit "A" Exhibit "A" - 7
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4.8 – Collection and Deposit Services
Hemet – East Office
1600 E. Florida Ave. Claudia Garcia
Hemet, CA 92544 VP | Client Service Manager
(951) 766-4100 (951) 766-4101
Hemet – West Office
1555 W. Florida Ave. Danielle Davis
Hemet, CA 92543 AVP | Client Service Manager
(951) 766-4100 (951) 766-4130
Riverside – Corporate Office
3715 Sunnyside Dr. Darlene Villasenor
Riverside, CA 92506 AVP | Financial Admin Officer
(951) 248-2000 (951) 248-2033
Beaumont Office
1540 E. 6th St., Suite C. Martha Preciado
Beaumont, CA 92223 AVP | Client Service Manager
(951) 766-4100 (951) 766-4198
Anza Office
56525 Hwy. 371 Claudia Garcia
Anza, CA 92539 VP | Client Service Manager
(951) 766-4100 (951) 766-4101
San Jacinto Office
400 E. Esplanade Ave Sharon Reed
San Jacinto, CA 92583 VP | Client Service Manager
(951) 766-4100 (951) 766-4144
The Beaumont and Hemet area branches have a cut off me of 5:00 p.m. for same day credit of deposits.
Deposits made at the Beaumont ATM and Hemet area branch ATMs is 3:00 p.m. Deposits made through Remote Deposit Capture cut-off me is 8:00 p.m. The Bank will accommodate cash deposits at any me during business hours, and coin requests may be called in/emailed to the branch for same day pick up if desired.
The City would work with a local HCN Bank representave on any deposit adjustments.
Typically, with very few excepons, Items deposited to the City of Banning’s account would be processed for same day credit without an uncollected funds hold.
Exhibit "A" Exhibit "A" - 8
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4.9 – Collateralization of Deposits
1. The Bank follows all Local Agency Investment Guidance under California Government Code Secons 53600-53997 and is subject to regular reporng requirements and audits of same.
2. The Bank uses United States Treasuries and Agency Investment Securies eligible under California Government Code Secon 53651(a) and leers of credit issued by the Federal Home Loan Bank of San Francisco eligible under California Government Code Secon 53651(p).
3. The Bank uses U.S. Bank Instuonal Trust & Custody as custodian for investment securies collateral and the Federal Home Loan Bank of San Francisco as custodian for the Leer of Credit.
4. As of September 30, 2023, the Bank has $104,637,950.02 of public funds deposits and $146,224,414.50 in pledged collateral for those deposits.
5. See Exhibit #3.
6. In accordance with California Government Code Secon 53652, we maintain eligible securies in securies pools.
4.10 – Account Reconciliation and Positive Pay
The Bank’s local conversion team would work closely with the City to review the City’s current account reconciliaon process and recommend the applicable programs/reports needed to efficiently reconcile and balance accounts. The Bank will work to customize reports to accommodate the City's preferences.
Posive pay is an automated fraud detecon cash management tool that is integrated in Business Online Banking. The Bank will match checks that are issued with the checks that are presented for payment. If the check informaon that is presented for payment does not match the check input in posive pay, the check will be presented as an excepon for your review to accept or return the item. Checks that are issued can but uploaded to Posive Pay in a file or can be individually added. The file format of files uploaded to the file can be uploaded in the following txt format: Tab Delimited, Semicolon Delimited, Space Delimited, Comma Delimited.
For excepon items, noficaon emails are sent to the client. The deadline for excepon item decisions is 11:00 a.m. PST. The first noficaons are sent by 8:30 a.m. and if there are sll unresolved items, another reminder email will be sent at 9:30 a.m. If items are sll unresolved aer the deadline, we will call the City to determine if the items are okay to pay.
The Bank’s Posive Pay system can detect irregularies with respect to check date, amount, and payee as long as the issued checks have been entered into the Posive Pay system.
Checks can be added to the Posive Pay system individually or by file upload. If the items are not entered into the Posive Pay system, the in-clearing item will appear as an excepon item to be resolved by the customer. If the item is presented in the branch environment, and the items have not been entered into the Posive Pay system, the bank will reach out to the client to verify the issuance of the check.
Exhibit "A" Exhibit "A" - 9
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Images of the excepon items will be available in the Posive Pay system as well as the Business Online Banking transacon history.
The Bank has a check truncaon service – online check imaging is available for paid items and deposit slips, and addionally, the items deposited are also available.
The Bank offers the ability to iniate stop payment requests via our online banking portal. The stop payment menu provides a complete list of all stop payment features including a list of all stop payment items associated to your account, stop payment research and the ability to issue a stop payment.
Stop payments may also be iniated in person at any Bank branch or via telephone request. The stop payment is effecve for two years.
A ‘stale date’ feature is available for monitoring outstanding checks.
Our Remote Deposit Capture system (Business eDeposit) will provide The City the ability to make daily deposits from the comfort of your office. The City will be able to deposit non-cash transacons as late as 8:00 p.m. Monday through Friday (excluding holidays) for same day credit. Checks are scanned through a high-speed desktop scanner and sent electronically through a secured line directly to our processor.
Scanned deposits are electronically stored by deposit date for your future needs for up to 45 days.
With Business eDeposit, your business will benefit from:
Faster Funds Availability
Make Deposits Anyme
Reduce the Risk of Check Fraud
Save Money on Gas, Mileage and Employee Time
4.11 – Overdraft Processing
The Bank will accommodate intra-day overdra situaons as described by the City. In the event the account balance is not posive at the end of the business day, the Bank would nofy the City and determine when the account is expected to be made posive.
The Bank will guarantee payment of all items even if it results in the account being temporarily overdrawn for the day.
The City would not be charged fees for intra-day overdra situaons.
There is no fee for intra-day overdra situaons. If the account is not brought current by the end of the business day which results in an overdra situaon the following day, any items presented against nonExhibit "A" Exhibit "A" - 10 1053
sufficient funds would typically be paid. Each item paid is $34; however, the Bank would work with the City so that minimal fees would be assessed.
4.12 – Stop Payment Services
The Bank offers the ability to iniate stop payment requests via our online banking portal. The stop payment menu provides a complete list of all stop payment features including a list of all stop payment items associated to your account, stop payment research and the ability to issue a stop payment.
Stop payments may also be iniated in person at any Bank branch or via telephone request.
The stop payment is effecve for two years.
4.14 – Electronic Storage of Documents
The Bank ulizes a very robust document management system that electronically stores reports, account statements and noces, and other essenal documents. It also saves check-image files and indexes these check images based on informaon from posted transacons. Most of these electronic records are retained for a period of seven (7) years unless some other period is prescribed by regulaons.
Periodic account statements are normally mailed. In addion, the City’s authorized personnel can always download account statements and check images via the City’s online banking account. Should the City prefer to receive its account statements some other way, then special arrangements can be made.
4.15 – Payment Card Services
Opon 1: Keep current soware soluon
Keep the City’s current tradional processing program that is paid for by the City. For this program, we can extend the following pricing:
Interchange (actual cost and assessments set by MC/VISA/DISCOVER/AMEX) plus 10 basis points (0.10% of your volume), $0.08 a transacon, $0.25 a batch, and $19.50 a month (per account) Based on the figures and pricing we previously reviewed from the City in 2019, the Bank esmates the City would be saving $2,830.03 monthly or $33,960.36 annually.
Please note, if the city has negoated beer pricing or if pricing has increased since 2019, the esmated savings would increase or decrease accordingly. In addion, the pricing is subject to any integraon/gateway fees from your current soware partner. If the current soware integrates and has the ability to pass on processing fees on to the customers, we would be able to power that on our program.
Opon 2: Ulizing Teller by Can/Am Technologies
Please refer to aached brochure. If the City is experiencing pain points with the current soware vendor, we partner with Teller as an alternave opon. Teller allows the City to choose a “Tradional Billing Model” or opt for a “Convenience Fee Model.” With the City’s current method, the “Tradional Billing Model”, the City is absorbing the fees for bankcard payments. If the City connues to ulize this Exhibit "A" Exhibit "A" - 11
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model, the gateway integraon to Teller is $10.00 a month and $0.08 a transacon. The processing fees quoted above would apply and soware fees from Teller would be discussed between Teller and the City based on the needs and services ulized.
If the City chooses the “Convenience Fee Model,” where the customers are billed a fee for using a convenient payment method, this would greatly reduce and/or virtually eliminate the City’s card processing costs.
Note (1): Part, or all, of merchant card expenses could possibly be covered through account analysis. This can be quanfied in greater detail if the City provides the Bank with checking account statements for two months.
Note (2): The City may increase its revenue by charging a “Convenience Fee” for some (or all) of payments received via alternave channels (e.g. web based). This funconality would be available by converng to Teller or by confirming that your exisng soware has the ability.
Exhibit "A" Exhibit "A" - 12
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5.2a – Statement of Understanding and Approach
People are at the heart of any successful business process and we have assembled the right team to lay a solid foundaon for your banking services. Our experienced bankers will create a customized project plan that will incorporate all aspects of converng your bank account and the services that you use.
Linda Hanley, The City’s Financial Service Officer, will meet with The City and discuss opening accounts, seng up bank services and scheduling training for City employees. Linda will also collect all corporate documents, verify the EIN number, and informaon for all signers. Linda will then meet with the Bank’s Relaonship Management team to communicate The City’s needs and verify that account opening and service implementaons will occur without any issues. Linda will also prepare Bank signature cards and personally take them to The City for endorsements. She will also place a check order on The City’s behalf.
The City will also have an opportunity to be introduced to the Relaonship Management team via teleconference.
We will work with your staff to seamlessly convert your current banking and account services. Our Electronic Banking Officer will be there every step of the way to establish On-line Banking for the users that you designate, set up Remote Deposit Capture at the site(s) of your choosing, create/ review/revise ACH/Wire templates and implement Posive Pay.
Linda will be in constant contact with the Bank’s Relaonship Management team as well as The City to ensure implementaon is going smoothly. At any me, The City can contact Linda directly for updates, more informaon or to express concerns about the implementaon process.
Costs associated with the conversion to all of the new services:
Posive Pay Set-up Fee – fee waived for City
ACH Set-up Fee – fee waived for City
New Checks – fee waived for City
Deposit Endorsement Stamps – fee waived for City
The customer is normally responsible for any one-me charges or set-up fees; however, the Bank is offering The City a waiver of these costs.
The Bank will provide on-site training. The training sessions will be led by The Electronic Banking Officer (EBO). The training sessions can be one on one or group based. The EBO will cover all major funconality of our services. There can be test transacons conducted unl the end-user feels comfortable enough to go live with the service. The EBO can provide a user guide and ongoing support for the service.
The organizaonal structure for this conversion will comprise of:
Needs Assessment Team: Specialized in data collecon and analysis and responsible for tailoring your conversion program to your specific requirements.
Implementaon Team: To handle all technical aspects of the conversion. Account Management Team: Focused on long-term relaonship management. Customer Service Team: For day-to-day operaonal queries and support.
Exhibit "A" Exhibit "A" - 13
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Implementaon Plan
Methods and Controls:
We will ulize a robust risk management framework and adhere to all applicable federal, state, and local regulaons.
Stakeholder Engagement:
One-on-one interviews will be conducted with City users, treasury management staff, and other key stakeholders to solicit views and document them meculously.
Efforts for Client Sasfacon:
We will offer quarterly review meengs with City staff to ensure performance metrics and expectaons are met.
Project Schedule
Duraon:
Implementaon Phase: 2 months
Transion Phase: 1 month
Overall Time of Compleon:
3 months from the date of contract signing.
Role of City Staff
City staff will need to provide:
Current banking statements
Staff availability for training sessions
Designaon of approved users and assigned limits
Data provision
Liaising with HCN Bank for effecve implementaon
Conclusion
HCN Bank is uniquely posioned to deliver top-notch, customized banking services to the City of Banning. Our approach, deeply rooted in understanding the needs of public sector enes, ensures a partnership that will be both beneficial and long-lasng.
Exhibit "A" Exhibit "A" - 14
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Introduction
Our mission is to foster a culture of resiliency through governance, standards, procedures, and activities to ensure Fiserv can function before, during and after disruptions.
We apply a consistent and transparent approach to reinforce confidence in our organization’s resiliency posture.
Fiserv manages business continuity through its Global Business Resiliency (GBR) and Global Technology Recovery (GTR) programs, which oversee Business Resiliency and Disaster Recovery, respectively. GBR and GTR work closely with business units and corporate function partners to provide continuous service to clients, mitigate loss to Fiserv, and minimize negative impacts.
Fiserv considers key internal and external drivers when formulating its Business Continuity Management (BCM) program objectives. These drivers include changes to regulatory expectations, business and operating environments, client needs, and lessons learned.
Exhibit "A" Exhibit "A" - 15
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Oversight & Governance
Fiserv’s BCM program tracks business unit adherence with program requirements and reports to Fiserv senior management regularly.
The BCM Steering Committee meets at least quarterly to oversee and provide direction to the program. The Committee reports on program highlights and reviews top resiliency risks, issues, accomplishments, adherence to policy, as well as the impact of significant disruptions. It is chaired by the Global Head of GBR and includes representation from stakeholders across Fiserv.
The Executive Risk Committee determines acceptable levels of risk based on Fiserv’s strategy and business objectives informed by resiliency-specific risk issues. The Executive Risk Committee receives regular reporting from GBR and GTR, determines next steps for issues requiring escalation, and reviews risk acceptance requests.
Fiserv’s BCM program is subject to internal and external audit reviews, to include those conducted by state and federal regulators. The program is also subject to the legal and regulatory requirements of other countries in which Fiserv operates.
Exhibit "A" Exhibit "A" - 16
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Global Business Resiliency
The Business Resiliency program at Fiserv is aimed at providing a consistent methodology and approach for recovering and restoring business processes during disruptions on a prioritized basis to minimize the impact to Fiserv’s clients and operations. Each Fiserv business unit is responsible for creating and maintaining a Business Impact Analysis (BIA) to determine Recovery Time Objectives (RTO). The BIA assesses the impact of disruptions on business processes in order to determine criticality. It also identifies process interdependencies such as systems, people, third parties, and facilities. The BIA is required to be updated annually or when material changes occur.
Each Fiserv business unit is also responsible for creating and maintaining Business Resiliency Plans (BRP) to enable quick and accurate resumption of the business Processes to meet their Process RTOs.
BRPs consider recovery and resumption of business processes in response to a broad range of disruptive events, including personnel unavailability, loss of facilities, technology, and third parties. BRPs consider the impact of various risks such as natural disasters, utility outages, social/political instability, and public health emergencies such as pandemics. These plans include recovery strategies that can sustain business activities, key personnel, and tasks. The BRP is required to be updated annually or when material changes occur.
Fiserv business units conduct annual exercises to verify processes are recoverable within the RTO. BRP exercises are intended to verify the effectiveness of the recovery strategies and the tasks and teams included in the plan. They also help train business unit personnel on their tasks and responsibilities, and identify areas that require amendments to the plan. Actual disruptive events that required BRP invocation may be documented and submitted in place of an exercise.
All exercises are documented to demonstrate results and completion status. Any issues or gaps identified are documented in the firm’s issue management tool and are tracked through resolution.
Exhibit "A" Exhibit "A" - 17
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Global Technology Recovery
The Disaster Recovery program at Fiserv is aimed at providing consistent methodology and approach for recovering and restoring technology and information assets that support continuity of business processes during disruptions on a prioritized basis, and at minimal impact to Fiserv’s clients and operations.
Fiserv maintains Disaster Recovery Plans (DRP), which include recovery procedures, key personnel, components, and applications that are necessary to minimize the impact to vital business processes following a disruption. DRPs are required to be updated annually or when material changes occur.
The Disaster Recovery program conducts testing on an annual basis to help verify the performance or reliability of application recovery, using quantifiable metrics to validate the operability of an IT system or system component. Disaster Recovery testing activities incorporate testing against plausible scenarios informed by location-based risk assessments that consider a wide range of physical and technology disruption scenarios. These exercises are intended to validate that the recovery solution is sufficient to meet internal business or external client needs; as well as validate that the DRP is sufficiently documented and that the Recovery Time Capability and Recovery Point Capability meet the defined Recovery Objectives. Disaster Recovery Testing confirms Fiserv is prepared for any unplanned disruption to its products/services. Any issues or gaps identified are documented in the firm’s issue management tool and are tracked through resolution.
Exhibit "A" Exhibit "A" - 18
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Exhibit “A”-19
11303-0008\2344655v8.doc
III. In addition to the requirements of Parts I and II of this Scope of Services, during the performance of the Services, HCN will keep City appraised through periodic status reports regarding the performance of the Services under this Agreement as set forth below and in Section 5.2, by the following means:
a. In-person meetings and/or teleconferences.
b. Email updates/questions to applicant team and City while reviews are underway.
c. Conference calls.
IV. All work product is subject to review and acceptance by City. If the City determines that any work product is unacceptable, for any reason, it must be revised by HCN without additional charge to City until found satisfactory and accepted by City. 1062
Exhibit “B”-1
11303-0008\2344655v8.doc
EXHIBIT “B”
SPECIAL REQUIREMENTS
None
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Exhibit “C”-1
11303-0008\2344655v8.doc
EXHIBIT “C”
SCHEDULE OF COMPENSATION
I. HCN shall perform the following tasks (“Tasks”) at the billing rates stated in Exhibit C-1.
II. Within the budgeted amounts for each Task, and with the approval of the Contract Officer, funds may be shifted from one Task sub-budget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.8.
III. City will compensate HCN for the Services performed upon submission of a valid invoice. Each invoice is to include:
A. Line items for all personnel describing the Services performed, the number of hours worked, and the hourly rate.
B. Line items for all materials and equipment properly charged to the Services.
C. Line items for all other approved reimbursable expenses claimed, with supporting documentation.
D. Line items for all approved sub-contractor labor, supplies, equipment, materials, and travel properly charged to the Services. 1064
Exhibit “C-1”-1
11303-0008\2344655v8.doc
EXHIBIT “C-1”
HCN’S BILLING RATE AND TASK SCHEDULE
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Exhibit “D”- 1
11303-0008\2344655v8.doc
EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. HCN shall perform all Services timely, and deliver the specified tangible work products to City.
II. The Contract Officer may approve extensions for performance of the Services in accordance with Sections 1.8 and 3.3.
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CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Adam Rush, Community Development Director
MEETING DATE: December 12, 2023
SUBJECT: Consideration of Resolution 2023-195, Approving an Amendment to the Fire Services Contract with Riverside County
RECOMMENDATION:
Adopt Resolution 2023-195.
BACKGROUND:
At the September 12, 2023 Meeting, the City Council held a Public Hearing and Adopted an Amendment to the Codified State Fire Code to authorize the City to conduct Annual Business Fire Inspections. At the October 17, 2023 Budget & Finance Committee Meeting, the proposed Fee Schedule was reviewed and recommended to the City Council for approval.
The City contracts for one full-time equivalent (FTE) Fire Safety Specialist, which is currently a vacant position but is being back-filled by an Assistant Fire Marshal while a recruitment is underway. This single staff member is responsible for all fire safety related matters in the City and essentially serves as the “Banning Fire Marshal”. As the City grows, the need for additional staffing becomes ever more critical.
An increase in fire prevention staff will provide the opportunity for the City to provide inspection-related services to businesses on an annual basis, that is not being conducted at this time.
Each year, the Banning Fire Marshal conducts “state-mandated” fire safety inspections on select business, as specified by law. These land uses include “Residential Care Facilities” (e.g., Congregate and Residential Care Facilities, Transitional Living Facilities, Nursing Homes), “Schools”, “Hospitals”, and “Apartment Buildings”, to name a few. The majority of City businesses do not receive an annual inspection, although it is a prudent measure and has only been deferred due to limited staffing resources.
The Amendment to the County Fire Services Contract will add one (1) full-time Assistant Fire Marshal to the existing Fire Safety Specialist position. By utilizing two (2) FTEs, the City is able to conduct annual inspections of all qualified businesses within the City, a measure that will aide in code compliance and support the reduction of vacant and distressed buildings and businesses within the City.
JUSTIFICATION:
The Fire Code Amendments will allow the regular and routine inspection of qualified businesses and business operations within the City. Creating the annual inspection program will positively contribute to the protection of life and property within the City. In order to complete the program implementation, adoption of a Fee Schedule by the City Council at a later date will be needed to ensure compliance with the Council’s policy of total cost recovery related to development and business related activities.
FISCAL IMPACT:
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Staff anticipates an increase in revenue generated from additional inspections being performed and a greater capture of expenses through the updated Fee Schedule.
ALTERNATIVES:
1. Do not adopt Resolution 2023-195 and provide feedback to staff.
2. Refer this item to the next Budget & Finance Committee meeting agenda.
ATTACHMENTS:
1. Resolution 2023-195, Fire Services Contract.docx
2. Exhibit A - Fire Services Contract Amendment No. 1.docx 1068
Resolution 2023-195