Agenda packet, regular meeting, third session — Banning City Council, February 13, 2024 (part 2 of 4)

1:\89424\TECH DOCS\Construction Cost Estimates\2019-0624 89424 TR 37474 COST EST (Sewer).xlsx 443

BOND REQUEST FORM
1 CONSULTANT REQUEST DATE:
2 PARDEE LDM (print):
3 LDM APPROVAL (initial & date):
4 PARDEE JOB NO.:
5 PARDEE JOB DESCRIPTION:
6 ENGINEER OF RECORD:
7 MUNICIPALITY (OBLIGEE):
a ADDRESS:
9 REFERENCE NUMBER:
10 BOND AMOUNT:
11 BOND TYPE:
12 PROJECTED EXONERATION:
9/26/2019
Michael Heishman
70569005
ATWELL PA3 Sewer Improvements
MOS Consulting
City of Banning
99 East Ramsey Street
Banning, CA 92220
Tract 37474
$502,670.75
Faithful Performance & Payment Bond
9/01/2021
********** CONSULTANT INCLUSIONS -- CHECK ALL THAT APPLY 13 BOND ESTIMATE:
**********
14 ORIGINAL BOND FORM:
15 ASSOCIATED FEES CHECK REQUEST:
,., ___ ,., LEGEND
ITEMS 2- 5 !SUPPLIED BY PARDEE
ITEMS 1 & 6 - 12 !SUPPLIED BY CONSULTANT
ITEM 9: PERMIT OR OTHER MUNICIPALITY REFERENCE NUMBER
---**
ITEM 11: PERFORMANCE, LABOR & MATERIALS, GRADING SURETY, WARRANTY, ETC.

ITEM 12: DATE PARDEE CAN EXPECT TO RECEIVE EXONERATION LETTER FROM MUNICIPALITY ITEM 13: BOND ESTIMATE OR TABULATION FORM -APPROVED BY MUNICIPALITY ITEM 14: ORIGINAL MUNICIPALITY APPROVED BOND FORM (if required by Municipality) ITEM 15: PERMIT OR OTHER FEES - CHECK REQUEST INCLUDED (if required) X
last updated:
11/30/2004
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CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Laurie Sampson, Assistant City Manager
Doug Schulze, City Manager
MEETING DATE: February 13, 2024
SUBJECT: Consideration of Resolution 2024-16, Approving Community Development Block Grant Consolidated Plan Needs Assessment for 2024-2029
RECOMMENDATION:

Staff recommends Council adopt Resolution 2024-16, Approving the Community Development Block Grant (“CDBG”) Consolidated Plans Needs Assessment for 2024-2029.

BACKGROUND:

The City of Banning, through Riverside County Housing and Workforce Solutions, annually receives funding under the CDBG program. The United States Department of Housing and Urban Development (“HUD”) requires that communities that received CDBG funding perform a five-year plan that evaluates community needs and funding priorities.

JUSTIFICATION:

On January 5, 2024, the City issued a press release to local media posted as a legal notice and utilized all social media platforms to direct residents and business owners to the City’s website to access the online survey. Reminders were posted to all social media platforms on January 8, January 16, January 22 and January 29, 2024.

On January 9, 2024, the City Council appointed an ad-hoc committee comprised on two council members, Rick Minjares and Sheri Flynn and the economic development manager, Marisol Lopez to review and recommend approval of the 2024-2029 Community Development Block Grant (CDBG) Consolidated Plan Needs Assessment.

Three community workshops were conducted at City Hall on Saturday, January 20, 2024, at 9:00 am, Tuesday, January 23, 2024, at 6:00 pm and Friday, January 26, 2024, at 2:00 pm. where hard copy surveys were available for participants.
94 online surveys were received through Riverside County Housing and Workforce Solutions and 2 hard copies were received by City staff.

The ad-hoc committee met on February 7, 2024. Sheri Flynn was absent. After reviewing all hard copy and online survey results the ad-hoc committee recommended the following funding priorities:

FISCAL IMPACT:
916
None
ALTERNATIVES:

It is necessary that the City periodically review and update its needs assessment and be approved by the City Council by Resolution in order for the City and its residents to obtain federally funded CDBG grant funds.

ATTACHMENTS:

1. CC Resolution 2024-16.docx

2. Proof of Publication.pdf

3. Survey_English.pdf

4. Survey_Spanish.pdf
917
Resolution 2024-16

Page 1 of 4 ends

RESOLUTION 2024-16

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, APPROVING THE CITY OF BANNING 2024-2029 COMMMNUNITY DEVELOPMENT BLOCK

GRANT PROGRAM CONSOLIDATED PLAN NEEDS ASSESSMENT
WHEREAS, the City of Banning has routinely secured grant funding under the Community Development Block Grant (“CDBG”) program through Riverside County Housing and Workforce Solutions (“HWS” on an annual basis, and
WHEREAS, the United States Department of Housing and Urban Development (“HUD”) requires all jurisdictions receiving funding to perform and update a Five Year Consolidated Plan, which is conducted by HWS, as the City of a cooperating city; and WHEREAS, on January 9, 2024, at its regular meeting, the City Council appointed an Adhoc committee to review input received from community engagement efforts and prioritize the City’s needs for the next five years; and
WHEREAS, on January 5, 2024, the City issued a press release to local media posted as a legal notice and utilized all social media platforms to direct residents and business owners to the City’s website to access the online survey; and
WHEREAS, the City conducted three community workshops, Saturday, January 20, 2024, at 9:00 am, Tuesday, January 23, 2024 at 6:00 pm, and Friday, January 26, 2024 at 2:00 pm. where hard copy surveys were available; and
WHEREAS, upon review of the survey results collected the ad-hoc committee set forth recommendations based upon the responses received (attachment A); and WHEREAS, the City Council concurs with the ad-hoc committee and has set forth by this Resolution the following funding priorities:

WHEREAS, the funding priorities meets the CDBG program guidelines and/or requirements for input to Riverside County’s 2024-2029 Five Year Consolidated Plan and Needs Assessment; and
WHEREAS, it is necessary that the City periodically review and update its needs assessment and be approved by the City Council by Resolution in order for the City and its residents to obtain federally funded CDBG grant funds.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:

SECTION 1. The City Council adopts Resolution 2024-16, approving the Banning 2024-2029 Community Development Block Grant Consolidated Plan Needs Assessment.

SECTION 2. The City Manager is authorized to submit the City of Banning’s 2024-2029 Consolidated Plan Needs Assessment to Riverside County Housing and Workforce Solutions for approval by their Board of Supervisors.
918
Resolution 2024-16

Page 2 of 4 ends

SECTION 3. The City Clerk shall certify 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 13th day of February 2024.

Alberto Sanchez, Mayor
City of Banning
ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning

APPROVED AS TO FORM AND
LEGAL CONTENT:

Serita R. Young, City Attorney
Richards, Watson & Gershon
919
Resolution 2024-16

Page 3 of 4 ends

CERTIFICATION:

I, Caroline Patton, Deputy City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-16, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 13th day of February 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
920
Resolution 2024-16

Page 4 of 4 ends

EXHIBIT A
2024-2029 Needs Assessment Funding Priorities
1) Public Facilities
a. Parks, Playgrounds, Recreational Areas
b. Senior Centers
c. Community Centers
2) Community Services
a. Crime Prevention
b. Employment Services
c. Children’s/Youth Services
3) Housing
a. Affordable Housing for Low Credit Scores
b. Affordable Housing for the Homeless
c. Affordable Housing for the Disabled
4) Business and Job Opportunities
a. Incubator Center Support
b. Job Readiness Programs
c. Business Identification Assistance
5) Public Improvements
a. Improve Street Lighting
b. Improve Sidewalks
c. Improve Public Transportation
921
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932

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Patrick Safari, Capital Improvement Projects Manager Art Vela, Director of Public Works
MEETING DATE: February 13, 2024
SUBJECT: Consideration of Resolution 2024-17, Approving Amendment No. 2 to the Professional Services Agreement with CASC Engineering and Consulting, Inc. for an Additional Amount of $50,324.36 for the Design of the San Gorgonio Avenue and Railroad At-Grade Crossing Safety Improvements
RECOMMENDATION:

Staff recommends that the City Council adopt Resolution 2024-17.

BACKGROUND:

On March 23, 2021, City Council adopted Resolution 2021-14 approving the execution of a service contract with the California Department of Transportation (Caltrans) for the Preliminary Engineering (PE) of safety improvements at the at-grade crossing of San Gorgonio Avenue and the Union Pacific Railroad in the amount of $80,000 . On December 9, 2022 Caltrans approved additional funds in the amount of $50,000 for a total of $130,000 for the PE phase.

On January 10, 2023, City Council adopted Resolution 2023-02 for a Professional Services Agreement with CASC for the design of the San Gorgonio Avenue and Union Pacific Railroad At-Grade Crossing Safety Improvements in the amount of $109,908.36.

On October 12, 2023, the original contract with CASC was amended for additional compensation in the amount of $3,000 for reimbursable expenses associated with title report, utility research, printing and reproduction fees. The amended contract increased the contract amount to $112,908.36.

JUSTIFICATION:

On October 3, 2023, a field diagnostic meeting with representatives from the City of Banning, Caltrans, CASC, Union Pacific Railroad (UPRR) and California Public Utility Commission (CPUC) took place on the project site. During the meeting, the following pedestrian/motorist safety improvement recommendations were made:

Provide curb and gutter, and sidewalk connectivity northeast and southeast of the railroad crossing to close a 250-foot gap of missing curb and gutter, and sidewalk.

Provide curb and gutter, and sidewalk connectivity southwest of the railroad crossing to close a 50-foot gap of missing curb and gutter, and sidewalk.

Provide driveway with rolled curb and swing gate for access to John Street for railroad maintenance purposes.

Provide a total of 9,415 square feet of grind and overlay north and south of the railroad crossing for smooth transition to the railroad crossing concrete panels. 933
On November 16, 2023, at the request of City staff, CASC provided a change order in the amount of $50,324.36 for additional design services of the above mentioned safety improvement recommendations.

On January 8, 2024, Caltrans approved additional funds in the amount of $100,000 for a total of $230,000 to cover additional design services.

FISCAL IMPACT:

The City’s cost for the PE phase will be fully reimbursed up to $230,000 by Caltrans under the RailroadHighway Grade Crossing Program (RHGCP), Section 130.

If approved, the total contract amount with CASC will be amended to a not-to-exceed amount of $163,232.72.

ALTERNATIVES:

1. Adopt Resolution 2024-17 as recommended.

2. Adopt Resolution 2024-17 with modifications.

3. Do not adopt Resolution 2024-17. If not approved, the additional design elements recommended by the various stakeholders, including the grant funding grantor, will not be included in the construction phase of the project.

ATTACHMENTS:

1. Resolution 2024-17

2. CC Resolution No. 2021-014.pdf

3. CC Resolution No. 2023-02.pdf

4. Caltrans Contract Amendment 1.pdf

5. CASC Amendment 1.pdf

6. CASC Change Order.pdf

7. Caltrans Contract Amendment 2.pdf

8. CASC Amendment 2

9. Amendment_No.2_CASC_-_Design_San_Gorgonio - SY revisions.docx 934
Resolution 2024-17

Page 1 of 3 ends

RESOLUTION 2024-17

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, APPROVING AMENDMENT NO. 2 TO THE PROFESSIONAL SERVICES AGREEMENT WITH CASC ENGINEERING AND CONSULTING, INC. FOR AN ADDITIONAL AMOUNT OF $50,324.36 FOR THE DESIGN OF THE SAN GORGONIO AVENUE AND RAILROAD ATGRADE CROSSING SAFETY IMPROVEMENTS WHEREAS, on March 23, 2021 City Council approved Resolution 2021-14 approving the execution of a service contract with the California Department of Transportation (Caltrans) for the Preliminary Design (PE) of safety improvements at the at-grade crossing of San Gorgonio Avenue and the Union Pacific Railroad in the amount of $80,000; and WHEREAS, on December 9, 2022, Caltrans approved additional funds in the amount of $50,000 for a total of $130,000 for the PE phase; and
WHEREAS, on January 10, 2023 City Council approved Resolution 2023-02 for a Professional Services Agreement with CASC for the design of San Gorgonio Avenue and Union Pacific Railroad at-Grade Crossing Safety Improvements in the amount of $109,908.36; and WHEREAS, on October 12, 2023 the original contract with CASC was amended for additional compensation in the amount of $3,000 for reimbursable expenses associated with title report, printing and reproduction fees. The amended contract increased the contract amount to $112,908.36; and
WHEREAS, on October 3, 2023 a field diagnostic meeting with representatives from the City of Banning, Caltrans, CASC, Union Pacific Railroad (UPRR) and California Public Utility Commission (CPUC) took place on the project site and safety improvement recommendations were made; and,
WHEREAS, on November 16, 2023 at the request of City staff, CASC provided a change order in the amount of $50,324.36 for additional design services to include the safety improvement recommendations; and
WHEREAS, On January 8, 2024 Caltrans approved additional funds in the amount of $100,000 for a total of $230,000 to cover additional design services.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:

SECTION 1. The City Council approves Amendment No. 2 to the Professional Services Agreement with CASC Engineering and Consulting, Inc. for an additional amount of $50,324.36 for the Design of the San Gorgonio Avenue and Railroad at-Grade Crossing Safety Improvements and authorizes the City Manager to sign the Agreement on behalf of the City Council.

SECTION 2. The City Council authorizes the City Manager, or designee, to make necessary budget adjustments, appropriations, and transfers related to Amendment 2 to the Professional Services Agreement with CASC Engineering and Consulting, Inc for the Design of the San Gorgonio Avenue and Railroad at-Grade Crossing Safety.
935
Resolution 2024-17

Page 2 of 3 ends

SECTION 3. The City Council authorizes the City Manager to make necessary non-substantive changes and to execute Amendment 2 with CASC.

SECTION 4. 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 13th day of February 2024.

Alberto Sanchez, Mayor
City of Banning
ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning

APPROVED AS TO FORM AND
LEGAL CONTENT:

Serita R. Young, City Attorney
Richards, Watson & Gershon
936
Resolution 2024-17

Page 3 of 3 ends

CERTIFICATION:

I, Caroline Patton, Deputy City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-17, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 13th day of February 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Deputy City Clerk
City of Banning, California
937
RESOLUTION 2021- 14

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING,

CALIFORNIA, APPROVING THE EXECUTION OF A SERVICE

CONTRACT WITH THE CALIFORNIA DEPARTMENT OF

TRANSPORTATION FOR SAFETY IMPROVEMENTS AT THE AT -

GRADE CROSSING OF SAN GORGONIO AVENUE AND THE UNION

PACIFIC RAILROAD
WHEREAS, a diagnostic team was formed and lead by the California Public Utilities Commission ( CPUC) Rail Crossings and Engineering Branch staff for purposes of itemizing the safety improvements to be funded under the Railroad -Highway Grade Crossing Program RHGCP), Section 130 at the San Gorgonio Avenue and Union Pacific railroad at -grade crossing; and
WHEREAS, several safety improvements were identified by the diagnostic team after analyzing the existing at -grade crossing with respect to vehicular travel, bicycle travel, pedestrian pathways and rail traffic; and
WHEREAS, the diagnostic team determined that the identified safety improvement are eligible to be fully funded by RHGCP funds; and WHEREAS, the execution of a Service Contract between the City of Banning and the California Department of Transportation ( Caltrans) is required to acquire the authorization for reimbursement of the City' s cost, up to $ 80, 000, for the preliminary engineering phase of the project.

NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Banning as follows:

SECTION 1. The City Council approves a Service Contract between Caltrans and the City of Banning for Safety Improvements at the at -grade crossing of San Gorgonio Avenue and the Union Pacific railroad and authorizes the City Manager or his designee to sign the Service Contract.

SECTION 2. 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 23rd dy of March, 2021 1 Colleen Wallace, Mayor
City of Banning, California
Resolution 2021- 14
938
ATTEST:

Laurie Sampso` h, Acting Deputy City Clerk
City of Banning

APPROVED AS TO FORM
AND LEGAL CONTENT:

Kevin G. Ennis, City Attorney
Richards, Watson & Gershon
2 Resolution 2021- 14
939
CERTIFICATION:

I, Laurie Sampson, Acting Deputy City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2021- 14 was duly adopted by the City Council of the City of Banning, California. at a regular meeting thereof held on the 23rd day of March 2021, by the following vote, to wit:

AYES: Council Members Hamlin, Happe, Pingree, Sanchez and Mayor Wallace NOES:

ABSENT:

ABSTAIN:

Laurie Sampson, Acting Deputy City Clerk
City of Banning, California
3 Resolution 2021- 14
940
RESOLUTION 2023-02

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,

APPROVING A PROFESSIONAL SERVICES AGREEMENT FOR THE DESIGN OF

SAN GORGONIO AVENUE AND UNION PACIFIC RAILROAD AT -GRADE CROSSING SAFETY IMPROVEMENTS, TO CASC ENGINEERING AND CONSUL TING, INC. IN THE AMOUNT OF $ 109,908.36 AND APPROVING A 10% CONTINGENCY FOR A TOTAL NOT-TO-EXCEED AMOUNT OF $120,889.20
WHEREAS, a diagnostic team lead by the California Public Utilities Commission CPUC) and Engineering Branch staff identified the existing at-grade crossing at San Gorgonio Avenue and Union Pacific railroad as needing safety improvements; and WHEREAS, the team analyzed vehicular safety, bicycle travel, pedestrian pathways and rail traffic and determined that safety improvements were warranted for the safety of pedestrians crossing the railroad; and
WHEREAS, on March 23, 2021 City Council approved Resolution 2021-14 approving the execution of a service contract with the California Department of Transportation ( Caltrans) for the Preliminary Engineering ( PE) of safety improvements at the at-grade crossing of San Gorgonio Avenue and the Union Pacific railroad in the amount of $80,000; and
WHEREAS, on September 7, 2022 staff released a Request for Proposals ( RFP) for the Design of San Gorgonio Avenue and Union Pacific Railroad At-Grade Crossing Safety Improvements to four ( 4) consultants on the pre-qualified Engineering list approved by City Council on July 12, 2022 under Resolution 2022-99 and received one 1) proposal at a cost of $109,908.36; and
WHEREAS, since CASC Engineering and Consulting, Inc. proposal cost of 109,908.36 exceeded the approved PE cost of $80,000, on October 12, 2022, City staff requested additional funds in the amount of $40,889.20 to fully cover the PE phase; and WHEREAS, on December 9, 2022, Caltrans approved additional funds in the amount of $50,000 for a total of $130,000; and
WHEREAS, the scope of work will include the design of 1,600 square-feet of ADA compliant sidewalks, 400 linear feet of curb and gutter, two ( 2) pedestrian curb ramps and signage and striping; and
WHEREAS, staff recommends the award of a professional services agreement to CASC Engineering and Consulting, Inc.

Resolution 2023- 02

Page 1 of 3 ends

941
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows :

SECTION 1. The City Council approves the Professional Services Agreement between CASC Engineering and Consulting , Inc ., and the City of Banning .

SECTION 2. The City Manager or his designed is authorized to execute the Professional Services Agreement with CASC Engineering and Consulting, Inc . and to make necessary budget adjustments , appropriations , transfers , and approving change orders within the approved contingency.

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 10th day of January 2023 ATTEST:

Caroline Patton , Dep
City of Banning

APPROVED AS TO FORM AND
LEGAL CONTENT:
b~
Serita R . Young , City Attorney
Richards , Watson & Gershon
Reso lution 2023- 02

Page 2 of 3 ends

942
CERTIFICATION:

I, Caroline Patton , Deputy City Clerk of the City of Banning , California, do hereby certify that the foregoing Resolution 2023-02 , was duly adopted by the City Council of the City of Banning , California , at a regular meeting thereof held on the 10th day of January 2023 by the following vote , to wit:

AYES: Flynn , Gonzales , Minjares , Sanchez , and Wallace .

NOES:

ABSENT:

ABSTAIN:

Resolution 2023- 02

Page 3 of 3 ends

Caroline Patton , Depu Y-' ~ ity Clerk
City of Banning , Californ ia
943

STATE OF CALIFORNIA

DEPARTMENT OF TRANSPORTATION
San Gorgonio A venue, Banning
Amendment I
December 2, 2022
Sheet l of l
Item Chapter Budget Act Caltrans Project ID Unit Amount State Fiscal Year 2660-120-0890 23 2019 0821000010 3328 $80,000.00 2019/2020 2660-102-0890 43 2022 0821000010 3328 $50 000.00 2022/2023 The funds listed above are available for the oeriod and ouroose of the exoenditure stated herein and aooliable to this amendment.

PROJECT NUMBER (FED ID) STPLR-7500(288)
CONTRACT AMENDMENT #1 CAL TRANS ACCOUNTING ID: 0821000010 San Gorgonio Ave, City of Banning, CA PROGRAM SUPPLEMENT : 50LP288 AGENCY LOCODE: 5214
(The numbers above shall be included with all invoices submitted to Cal trans) Caltrans Division of Local Assistance
Office of Federal Programs Highway Railroad Grade Crossing Safety Program (Section 130) P.O. Box 942874, MS 1
Sacramento, CA 94274-0001
Effective Date of Contract : December 2, 2022
LOCAL AGENCY: City of Banning Expiration Date of Contract : December 31, 2024 ADDRESS: 99 E. Ramsey Street
Banning, CA 92220 Contract $ 80,000.00
Phone: (951) 922-3130 Additional Funds Amend #1 $ 50,000.00 Total Contract $ 130,000.00
WHEREAS: Service Contract 50LP288, dated December 15, 2020, provided $80,000.00 towards the Preliminary Engineering (PE) needed for roadway safety improvements at the grade crossing and intersection of San Gorgonio Avenue and the Union Pacific Railroad tracks identified as; California Public Utilities Commission (CPUC) No. OOlB568.20 I RIV-1003, Federal DOT No 760694C.

WHEREAS, due to the complexity of the project, the City of Banning elected to hire a traffic engineering firm to support the design of the project and;
WHEREAS, market forces have substantially increased the overall cost of goods and services, WHEREAS, updated PE costs require additional funding in the amount of $50,000.00, as requested by the City of Banning.

NOW THEREFORE, that all terms and conditions of Program Supplement 50LP288 shall remain in full force and effect except it is mutually agreed by the parties hereto; the contract dollar amount shall be amended with additional funds for a total contract value of $130,000.00. These funds are PE, with any unexpended balance applied towards the total funding needed for CON authorization and compliant with Caltrans' state budget authority.

IN WITNESS WHEREOF, the parties have duly executed this contract as of the dates shown below with the effective date as shown above.

CALIFORNIA DEPARTMENT OF TRANSPORTATION
By ____________________ _
Office of Federal Programs
Caltrans Local Assistance
Title _____ S __ e __ c_ti __ o_n_1 __ 3_0_P_r_o_g_r_a_m_M_a_n_a_g_e_r ____ _ Date ___________________ _
Title _~ fr'ba9<,tt. /4Lt -.:...-.---,.. / --"---' ............... .......__,___ tl'...,,...,,.. ---'--'----
Date ____._/_~_1.s- _ /4'---z.,.. _____ _ ~ I
December 9, 2022
944
945
946
947
948
Fee Schedule

DESIGN OF SAN GORGONIO AVENUE AND RAILROAD GRADE CROSSING SAFETY IMPROVEMENT AM PF RL Gabe Robert Rick Jess
2 MAN
SURVEY
CREW
Kayla
Technical
Advisor
Project
Manager
Project
Engineer
Design
Engineer Designer Survey Manager
Mapping
Manager
3-Man
Survey
Crew
Project
Analyst
$210.00 $170.00 $160.00 $135.00 $125.00 $210.00 $165.00 $337.12 $107.00 Task 1. Project Management
Work Plan/Kickoff Meeting 2 10 12 2,120.00
Monthly Progress Meetings, Agendas, and Minutes 0 -
Invoicing 0 -
Subtotal 2 10 0 0 0 0 0 0 0 12 2,120.00
Task 2. Project Development
Utility Research & Site Reconnaissance 3 8 3 3 17 2,875.00 Design Survey 16 28 44 12,799.36
Right-of-Way Dedication (Including Title Review and Base Mapping) 0 - Subtotal 3 8 3 3 0 16 0 28 0 61 15,674.36
Task 3. Preliminary Engineering Design (60%)
Street Improvement Plan 1 4 24 18 4 51 7,660.00
Signing and Striping Plan 0 1 2 8 2 13 1,820.00
Erosion Control Plan 1 2 3 8 14 1,895.00
Quantities and Cost Estimate 1 2 6 2 11 1,550.00
Subtotal 1 7 30 35 16 0 0 0 0 89 12,925.00
Task 4. Final Design Reports
Utility Coordination 4 32 36 4,680.00
Subtotal 0 4 0 0 32 0 0 0 0 36 4,680.00
Task 5 100% Complete Plans, Specifications, and Estimate Street Improvement Plan 1 2 4 4 2 13 1,980.00
Signing and Striping Plan 1 1 3 5 735.00
Erosion Control Plan 1 1 1 2 5 715.00
Specifications 1 1 8 1 11 1,795.00
Quantities and Cost Estimate 1 1 2 2 6 850.00
Subtotal 2 6 15 11 6 0 0 0 0 40 6,075.00
FINAL Plans, Specifications, and Estimate
Street Improvement Plan 1 1 1 1 4 590.00
Signing and Striping Plan 1 1 2 305.00
Erosion Control Plan 1 1 2 295.00
Specifications 1 2 1 4 625.00
Quantities and Cost Estimate 1 1 1 3 455.00
Subtotal 0 5 4 3 3 0 0 0 0 15 2,270.00
Permitting
Encroachment Permit 0 -
Subtotal 0 0 0 0 0 0 0 0 0 0 -
Bidding/Construction Support
Bid/Construction Meetings 6 6 12 1,980.00
RFIs & Submittals 1 2 3 490.00
Site Visits 8 8 16 2,640.00
As-Built Plans 2 2 6 10 1,470.00
Subtotal 0 17 18 6 0 0 0 0 0 41 6,580.00
TOTAL 8 57 70 58 57 16 0 28 0 294 $50,324.36
TOTAL
TOTAL
Hours

TASK DESCRIPTION
949
STATE OF CALIFORNIA San Gorgonio Avenue, Banning
DEPARTMENT OF TRANSPORTATION Amendment 2
January 3, 2024
Sheet 1 of 1
WHEREAS: Service Contract 50LP288 through Amendment 1, provides $130,000.00 towards the Preliminary Engineering of roadway safety improvements at the grade crossing and intersection of San Gorgonio Avenue and the Union Pacific Rail Crossing identified as; California Public Utilities Commission (CPUC) No. 001B-568.20 / RIV-1003, Federal DOT No 760694C.

WHEREAS, the project team supports the exploration of additional active transportation improvements into the project design;
WHEREAS, addition work will be required to facilitate adding new sidewalks into the design improvements and updated PE funding in the amount of $100,000.00 has been secured through FHWA funding, NOW THEREFORE, that all terms and conditions of Program Supplement 50LP288 shall remain in full force and effect except it is mutually agreed by the parties hereto; the Section 130 program will provide 100% of the funds necessary to complete the project and the contract amount shall be amended for a total value of $230,000.00.

IN WITNESS WHEREOF, the parties have duly executed this contract as of the dates shown below with the effective date as shown above.

CALIFORNIA DEPARTMENT OF TRANSPORTATION CITY OF BANNING By ___________________________________________ By _____________________________________________ Bruce Roberts
Office of Federal Programs
Caltrans Local Assistance
Title_ Section 130 Program Manager ____ Title __________________________________________________ Date _____________________________________________ Date __________________________________________________ Item Chapter Budget Act Caltrans Project ID Unit Amount State Fiscal Year 2660-120-0890 23 2019 0821000010 3328 $80,000.00 2019/2020 2660-102-0890 43 2022 0821000010 3328 $50,000.00 2022/2023 2660-102-0890 12 2023 0821000010 3328 $100,000.00 2023/2024 The funds listed above are available for the period and purpose of the expenditure stated herein and appliable to this amendment.

CONTRACT AMENDMENT #2
San Gorgonio Ave, City of Banning, CA
PROJECT NUMBER (FED ID) STPLR-7500(288)
CALTRANS ACCOUNTING ID: 0821000010
PROGRAM SUPPLEMENT: 50LP288
AGENCY LOCODE: 5214
(The numbers above shall be included with all invoices submitted to Caltrans) Caltrans Division of Local Assistance
Office of Federal Programs
P.O. Box 942874, MS 1
Sacramento, CA 94274-0001
Highway Railroad Grade Crossing Safety Program (Section 130) LOCAL
AGENCY:

ADDRESS:

Phone:

City of Banning
99 E. Ramsey Street
Banning, CA 92220
(951) 922-3130
Effective Date of Contract: December 2, 2022
Expiration Date of Contract: December 31, 2024
Contract $130,000.00
Additional Funds Amend #2 $100,000.00
Total Contract $230,000.00
City Manager
January 8, 2024 January 5, 2024
950
AMENDMENT NO. 2 TO PROFESSIONAL SERVICES AGREEMENT
(C00822) FOR DESIGN OF SAN GORGOINIO AVE AND UNION PACIFIC

RAILROAD AT-GRADING CROSSING SAFETY IMPROVEMENTS BY AND

BETWEEN CITY OF BANNING AND CASC ENGINEERING AND CONSULTING, INC.

THIS AMENDMENT NO. 2 TO THE PROFESSIONAL SERVICES
AGREEMENT FOR DESIGN SERVICES (“Amendment No. 2”) by and between the CITY OF BANNING (“City”) and CASC Engineering and Consulting, Inc., a California Corporation (“Consultant”) is effective this day of: _________________.

RECITALS
A. City and Consultant entered into an agreement dated April 11, 2023 for the purpose of providing Engineering Design Services (“Master Agreement”) following Request for Proposals and approved by City Council Resolution No.2023-02 B. City and Consultant have entered into an Amendment No. 2 to the Agreement dated October 12, 2023 to increase the Contract Sum to One Hundred Twelve Thousand Nine Hundred Eight Dollars and Thirty-Six Cents ($112,908.36).

C. City and Consultant now desire to amend the Agreement to modify the Scope of Services, update the Rate Schedule, Exhibit C-1, and increase the Contract Sum to One Hundred Sixty-Three Thousand Two Hundred Thirty-Two Dollars and Seventy-Two Cents ($163,232.72).

The Parties therefore agree follows:

1. Amended Terms. The Agreement is hereby amended as follows:

1.1 The Scope of Services as set forth in Section 1.1 of and Exhibit A to the Agreement is hereby amended to include the Services set forth in Attachment A, attached hereto and incorporated herein.

1.2 The maximum compensation for the Services performed pursuant to this Amendment No. 2 shall not exceed Fifty Thousand Three Hundred Twenty-Four Dollars and Thirty-Six Cents ($50,324.36) thereby increasing the Contract Sum, as set forth in Section 2.1 of the Agreement, to One Hundred Sixty-Three Thousand Two Hundred Thirty-Two Dollars and Seventy-Two Cents ($163,232.72).

1.3 Exhibit C-1 to the Agreement is hereby amended to read as set forth in Attachment B, attached hereto and incorporated herein.

2. Miscellaneous Provisions

2.1 Continued Effect of Agreement. Except as amended by this Amendment No. 2, all provisions of the Agreement as amended by Amendment No.1 shall remain 951
unchanged and in full force and effect. From and after the date of this Amendment No. 2, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement, as amended by Amendment Nos. 1 through 2. In the event of a conflict between the provisions of this Amendment No. 2 and the provisions of the Agreement or Amendments No.1, the provisions of this Amendment No. 2 shall control.

2.2 Consideration for Amendment. The parties hereby agree that they have each received adequate and independent consideration for the modifications to the Agreement set forth in this Amendment No. 2.

2.3 Authority. The persons executing this Amendment No. 2 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 Amendment No. 2 on behalf of said party, (iii) by so executing this Amendment No. 2, such party is formally bound to the provisions of this Amendment No. 2, and (iv) entering into this Amendment No. 2 does not violate any provision of any other agreement to which said party is bound.

2.4 Counterparts. This Amendment No. 2 may be signed in any number of counterparts, each of which will be an original, but all of which together will constitute one instrument.

2.5 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.
[SIGNATURE PAGE FOLLOWS]
952
The Parties are signing this Amendment No. 2 on the date stated in the introductory clause.

CITY OF BANNING CONSULTANT
Douglas Schulze,
City Manager
NAME:

TITLE:

City Council Approval: _______________ NAME:

TITLE:

ATTEST:

Caroline Patton
Deputy City Clerk
APPROVED AS TO FORM:

Richards, Watson & Gershon
Serita R. Young
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 CONSULTANT’S BUSINESS ENTITY.
953
ATTACHMENT “A”

ADDITIONAL SCOPE OF SERVICES
 Provide curb and gutter, and sidewalk connectivity northeast and southeast of the railroad crossing to close a 250-foot gap of missing curb and gutter, and sidewalk.  Provide curb and gutter, and sidewalk connectivity southwest of the railroad crossing to close a 50-foot gap of missing curb and gutter, and sidewalk.  Provide driveway with rolled curb and swing gate for access to John Street for railroad maintenance purposes.
 Provide a total of 9,415 square feet of grind and overlay north and south of the railroad crossing for smooth transition to the railroad crossing concrete panels. 954
ATTACHMENT “B”

RATE SCHEDULE FOR ADDED SCOPE AS SET FORTH HEREIN
AS ATTACHMENT “A”
955
AMENDMENT NO. 2 TO PROFESSIONAL SERVICES AGREEMENT
(C00822) FOR DESIGN OF SAN GORGOINIO AVE AND UNION PACIFIC

RAILROAD AT-GRADING CROSSING SAFETY IMPROVEMENTS BY AND

BETWEEN CITY OF BANNING AND CASC ENGINEERING AND CONSULTING, INC.

RECITALS
A. City and Consultant entered into an agreement dated April 11, 2023 for the purpose of providing Engineering Design Services (“Master Agreement”) following Request for Proposals and approved by City Council Resolution No.2023-02 B. City and Consultant have entered into an Amendment No. 1 to the Agreement dated October 12, 2023 to increase the Contract Sum to One Hundred Twelve Thousand Nine Hundred Eight Dollars and Thirty-Six Cents ($112,908.36).

The Parties therefore agree follows:

1. Amended Terms. The Agreement is hereby amended as follows:

1.1 The Scope of Services as set forth in Section 1.1 of and Exhibit A to the Agreement is hereby amended to include the Services set forth in Attachment A, attached hereto and incorporated herein.

1.3 Exhibit C-1 to the Agreement is hereby amended to read as set forth in Attachment B, attached hereto and incorporated herein.

2. Miscellaneous Provisions

2.1 Continued Effect of Agreement. Except as amended by this Amendment No. 2, all provisions of the Agreement as amended by Amendment No.1 shall remain 956
unchanged and in full force and effect. From and after the date of this Amendment No. 2, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement, as amended by Amendment Nos. 1 through 2. In the event of a conflict between the provisions of this Amendment No. 2 and the provisions of the Agreement or Amendments No.1, the provisions of this Amendment No. 2 shall control.

2.2 Consideration for Amendment. The parties hereby agree that they have each received adequate and independent consideration for the modifications to the Agreement set forth in this Amendment No. 2.

2.4 Counterparts. This Amendment No. 2 may be signed in any number of counterparts, each of which will be an original, but all of which together will constitute one instrument.

2.5 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.
[SIGNATURE PAGE FOLLOWS]
957
The Parties are signing this Amendment No. 2 on the date stated in the introductory clause.

CITY OF BANNING CONSULTANT
Douglas Schulze,
City Manager
NAME:

TITLE:

City Council Approval: _______________ NAME:

TITLE:

ATTEST:

Caroline Patton
Deputy City Clerk
APPROVED AS TO FORM:

Richards, Watson & Gershon
Serita R. Young
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 CONSULTANT’S BUSINESS ENTITY.
958
ATTACHMENT “A”

RATE SCHEDULE FOR ADDED SCOPE AS SET FORTH HEREIN
AS ATTACHMENT “A”
960

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Stephanie Sirls, Transit Manager
Art Vela, Director of Public Works
MEETING DATE: February 13, 2024
SUBJECT: Consideration of Resolution 2024-18, Approving an Updated Service Plan for Banning Connect Transit Services
RECOMMENDATION:

Staff recommends that City Council adopt Resolution 2024-18.

BACKGROUND:

The City of Banning, under the management of the Department of Public Works, owns and operates the Banning Connect Transit System which includes the operation of Fixed -Route services that serve between Banning and Cabazon. Additionally, the Dial-A-Ride division offers curb-to-curb transit services to ADA, elderly and disabled citizens residing within the City of Banning.

Transit dependent residents of the San Gorgonio Pass area rely heavily on the public transit system and Banning Connect will continue to operate as efficiently and effectively as possible while providing the highest level of customer service. In support of the transit operations, and to maintain safe, efficient, and reliable services, it is necessary to modify current bus schedules to improve system reliability.

To meet demand, staff proposes to revise the current service as follows:

Restoring hourly service to Cabazon from 6:15 AM to 5:45 PM on Route 1.

Routes 5 and 6 will be combined into one route with two buses simultaneously running the route and rebranded as the “Banning Circulator” instead of the “5/6 Combo”.

The Banning Circulator will run seven days a week instead of just on weekends.

Addition of hourly service to the new Atwell community on the Banning Circulator and Dial-A-Ride.

Current Fiscal Year 2023/2024 fixed route revenue service hours are expected to remain the same. If approved, the modifications will take effect February 20, 2024.

Once the changes are made, staff will observe ridership volumes to ensure that the proposed changes are meeting the community’s needs.

JUSTIFICATION:

In an effort to improve system reliability, the rebranding of the Route 5/6 Combo and a subsequent service change is warranted. The residents of Cabazon have been increasingly asking that hourly service be restored since the onset of the pandemic. Secondly, there is a need to add fixed route and DAR service in the Atwell Community to ensure that Banning’s newest residents have access to public transportation and critical services such as grocery store trips and doctor appointments. These 961
associated schedule changes are necessary in order to provide and maintain equitable, efficient, safe and reliable transit services.

FISCAL IMPACT:

There is no anticipated fiscal impact.

ALTERNATIVES:

1. Adopt Resolution 2024-18 as presented.

2. Adopt Resolution 2024-18 with modifications.

3. Do not adopt Resolution 2024-18 and provide alternative direction to staff.

ATTACHMENTS:

1. Resolution 2024-18.docx

2. Banning Circulator .pdf

3. Route 1 Schedule.pdf
962
Resolution 2024-18

Page 1 of 3 ends

RESOLUTION 2024-18

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,

APPROVING AN UPDATED SERVICE PLAN FOR BANNING CONNECT TRANSIT SERVICES WHEREAS, the City of Banning, under the management of the Department of Public Works, owns and operates the Banning Connect Transit System, which provides Fixed-Route and Dial-A-Ride transit services to the residents of Banning and the San Gorgonio Pass area; and
WHEREAS, in order to improve system reliability and meet the demands of the community, it is necessary to modify current bus schedules and make specific route changes; and
WHEREAS, the proposed modifications include reauthorizing hourly Cabazon service on Route 1, rebranding Route 5/6 Combo as the Banning Circulator, and adding Dial-a-Ride service and hourly fixed route service in the Atwell community on the Banning Circulator; and WHEREAS, these modifications are expected to have no fiscal impact and will enhance the current level of service.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:

SECTION 1. The City Council hereby approves and adopts the following updated service plan for Banning Connect transit service: (1) Restoring hourly service to Cabazon from 6:15 AM to 5:45 PM on Route 1; (2) Routes 5 and 6 will be combined into one route with two buses simultaneously running the route and rebranded as the “Banning Circulator” instead of the “5/6 Combo”; (3) the Banning Circulator will run seven days a week instead of just on weekends; and (4) addition of hourly service to the new Atwell community on the Banning Circulator and Dial-ARide.

SECTION 2. The City Council authorizes the City Manager, or designee, to implement the proposed service changes set forth in Section 1, which will take effect on February 20, 2024.

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 13th day of February 2024.

Alberto Sanchez, Mayor
City of Banning
963
Resolution 2024-18

Page 2 of 3 ends

ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning

APPROVED AS TO FORM AND
LEGAL CONTENT:

Serita R. Young, City Attorney
Richards, Watson & Gershon
964
Resolution 2024-18

Page 3 of 3 ends

CERTIFICATION:

I, Caroline Patton, Deputy City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-18, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 13th day of February 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
965

Banning Circulator
(5/6 Combo)
INFO: 951-922-3243
www.banningconnect.com
Effective
2/20/24
Legend | Map not to scale
Time Point
Connection Point
San Gorgonio Hospital
Connection
to Routes
1 2 3
4 5
N
Beaumont Banning
Wilson St
Wesley St
Lincoln St
Westward Ave
Nicolette St.
1st St
2nd St
Highland Springs Ave
Hargrave St
Hathaway St
Commerce
Ramsey St
Wal-Mart Transfer Station
Connection
to Routes
3 4 5 6
120 210/
220 31 35
Sun Lakes Village
Connection
to Routes 5 31 35
4 5
3 1
15 14
13 11
10 6
Sunset Ave
MSJC Banning
High
C
San Gorgonio
8th St
Post
Office
George St.

Hargrave St.

Indian School
Alessandro
4St.

Lincoln
Wilson
Nicolette St.

Alessandro
8 7
12 2
9 C
C
C
C
966
Optum Wal
mart

San G
Hospital
1 1
- - - 5:30 5:42 5:46 5:50 5:54 5:59 6:05
6:30 6:42 6:46 6:50 6:54 7:59 7:05
6:10 6:15 6:20 6:25-6:35 6:44 6:54 6:57 7:06 7:18 7:22 7:26 7:30 7:35 7:41 7:10 7:15 7:20 7:25-7:35 7:44 7:54 7:57 8:06 8:18 8:22 8:26 8:30 8:35 8:41 7: 46 7:51 7:56 8:01 8:10 8:20 8:23 8:32 8:44 8:48 8:52 8:56 9:01 9:07 8:46 8:51 8:56 9:01 9:10 9:20 9:23 9:32 9:44 9:48 9:52 9:56 10:01 10:07 9:12 9:17 9:22 9:27-9:37 9:46 9:56 9:59 10:08 10:20 10:24 10:28 10:32 10:37 10:43 10:12 10:17 10:22 10:27-10:37 10:46 10:56 10:59 11:08 11:20 11:24 11:28 11:32 11:37 11:43 10:48 10:53 10:58 11:03-11:13 11:22 11:32 11:35 11:44 11:56 12:00 12:04 12:08 12:13 12:19 11:48 11:53 11:58 12:03-12:13 12:22 12:32 12:35 12:44 12:56 1:00 1:04 1:08 1:13 1:19 12:24 12:29 12:34 12:39-12:49 12:58 1:08 1:11 1:20 1:32 1:36 1:40 1:44 1:49 1:55 1:24 1:29 1:34 1:39-1:49 1:58 2:08 2:11 2:20 2:32 2:36 2:40 2:44 2:49 2:55 2:00 2:05 2:10 2:15-2:20 2:29 2:39 2:43 2:52 3:04 3:08 3:12 3:16 3:21 3:27 3:00 3:05 3:10 3:15-3:20 3:29 3:39 3:43 3:52 4:04 4:08 4:12 4:16 4:21 4:27 3:32 3:37 3:42 3:47-3:57 4:06 4:16 4:19 4:28 4:40 4:44 4:48 4:52 4:57 5:03 4:32 4:37 4:42 4:47-4:57 5:06 5:16 5:19 5:28 5:40 5:44 5:48 5:52 5:57 6:03 5:08 5:13 5:18 5:23-5:33 5:42 5:52 5:55 6:04 6:16 6:20 6:24 6:28 6:08 6:13 6:18 6:23
12 1 2 3 4 5 6 7 11
Optum WalMart Sun San G
Hospital
MSJC &
Sunset
BHS Smith
Correctional
Banning PD
& City Hall
Indian
School
Library 8 St.
& Ramsey
Hemmerling Atwell
8:00 8:03 8:12 8:24 8:28 8:32 8:36 8:41 8:47
8:52 8:57 9:02 9:07-9:17 9:26 9:36 9:39 9:48 10:00 10:04 10:08 10:12 10:17 10:23 10:28 10:33 10:38 10:43-10:53 11:02 11:12 11:15 11:24 11:36 11:40 11:44 11:48 11:53 11:59 12:04 12:09 12:14 12:19-12:29 1:30 1:34 1:38 1:42 1:29 1:35 1:40 1:45 1:50 1:55-2:05 2:14 2:24 2:27 2:36 2:48 2:52 2:56 3:00 3:05 3:11 3:16 3:21 3:26 3:31-3:41 3:50 4:00 4:03 4:12 4:24 4:28 4:32 4:36 4:41 4:47 4:52 4:57 5:02 5:07-5:17 5:26 5:36 5:39 5:48 6:00 6:04 6:08 6:12 6:17 6:23 6:28

WEEKEND
WEEKDAY Circulator 2 in yellow
8 9
Banning Circulator
(5/6 Combo)
INFO: 951-922-3243
www.banningconnect.com
10 Effective
2/20/24
On Saturday’s & Sunday’s, the bus will shut down for lunch from 12:30 p.m. to 1:30 p.m. 13 14
12 14 15 1 2 3 4 5 6 7 8 9 10 11
SunLakes
MSJC
Sunset
Ramsey
BHS
Smith
Correctional
Banning PD
City Hall
Indian
School
Library 8th Street
& Ramsey
Hemmerling
School
Oregon Trail &
Wilson
Atwell
Lakes
School
Oregon Trail
& Wilson
967
Ram- sey St
Highland Springs Ave
2nd
Commerce
1 13 212
5 4
Desert Hills
Outlet Mall Casino
Morongo
Morongo Trail
Carmen
Broadway
Dolores
Bonita
Elm Street
Lemon
Almond St
Main
Seminole
1st St
Maxine
8 Cabazon
Community
Center
San Gorgonio Hospital
Connection
to Routes
1 2 3 4
5 6 Combo
Legend | Map not to scale
Time and/or Transfer Point
Connection Point C
N
Beaumont Banning
Wilson St
Cabazon
C
C
C
I-10 I-10 I-10
Seminole
Magnolia
Esperanza
Hargrave St
7 9
MSJC
Pass
Campus
Sunset Ave
Casino Morongo
Connection
to Routes
1 120
10 6
San Gorgonio
22nd Str
11 C
C
Sun Lakes Village
Connection
to Routes
1 5 6
31 Combo
C
Effective 2/20/2024
Wal-Mart
Connection
to Routes
1 3 4 5 6
Combo 120 125 31
Route 1 Effective 2/20/2024 INFO: 951-922-3242
www.banningconnect.com
968
Casino
Morongo
to Banning
Outlets
To
Banning
Courthouse
(Headed to
Walmart)
MSJC
Pass
Campus
San
Gorgonio
Hospital
Walmart
Sunlakes
Village
Banning
Police Dept
(across
street) to
Cabazon
Casino
Morongo
to Cabazon
Outlets/
McDonald’s
to Cabazon
Cabazon
Community
Center on
Carmen
Esperanza
&
Elm
Cabazon
Community
Center on
Broadway
1 - - - - - - - - - -
- - 5:11 - 5:20 - 5:33 5:35 5:50 6:00 6:02-6:06 6:15 6:30 6:45 - 6:11 - 6:20 - 6:33 6:35 6:50 7:00 7:02-10 7:15 7:30 7:45 7:00 7:03 7:11 - 7:20 - 7:33 7:35 7:50 8:00 8:02-8:10 8:15 8:30 8:45 8:00 8:03 8:11 - 8:20 - 8:33 8:35 8:50 9:00 9:02-9:10 9:15 9:30 9:45 9:00 9:03 9:11 - 9:20 - 9:33 9:35 9:50 10:00 10:02-10 10:15 10:30 10:45 10:00 10:03 10:11 - 10:20 - 10:33 10:35 10:50 11:00 11:02-10 11:15 11:30 11:45 11:00 11:03 11:11 - 11:20 - 11:33 11:35 11:50 12:00 12:02-10 12:15 12:30 12:45 12:00 12:03 12:11 - 12:20 - 12:33 12:35 12:50 1:00 1:02-1:10 1:15 1:30 1:45 1:00 1:03 1:11 - 1:20 - 1:33 1:35 1:50 2:00 2:02-2:10 2:15 2:30 2:45 2:00 2:03 2:11 - 2:20 - 2:33 2:35 2:50 3:00 3:02-3:10 3:15 3:30 3:45 3:00 3:03 3:11 - 3:20 - 3:33 3:35 3:50 4:00 4:02-4:10 4:15 4:30 4:45 4:00 4:03 4:11 - 4:20 - 4:33 4:35 4:50 5:00 5:02-5:10 5:15 5:30 5:45 5:00 5:03 5:11 - 5:20 - 5:33 5:35 5:50 6:00 —
6:00 6:03 6:11 - 6:20 - 6:33 6:35 6:50 7:00
7:00 7:03 7:11 7:20 7:33 7:35 7:50 8:00
8:00 8:03 8:11 - 8:20 - 8:33 8:35 8:50 9:00
9:00 9:03 9:11 9:20 9:33 9:35 9:50 10:00 - - - -
12 13 1 2 3 4 5 6 7 8
8:00 8:15
8:30 8:33 8:41 - 8:50 - 8:56 9:03 9:20 9:30 9:32-36 9:45 10:00 10:15 10:30 10:33 10:41 - 10:50 - 10:56 11:03 11:20 11:30 11:32-36 11:45 12:00 12:15 12:30 12:33 12:41 - 12:50 - 12:56 1:03 1:20 1:30 1:32-36 1:45 2:00 2:15 2:30 2:33 2:41 - 2:50 - 2:56 3:03 3:20 3:30 3:32-36 3:45 4:00 4:15 4:30 4:33 4:41 - 4:50 - 4:56 5:03 5:20 5:30 5:36 - - -
5:45 5:48 5:56 - - - - - - - - - -

WEEKEND
A.M. times in PLAIN, P.M. times are in Bold WEEKDAY
9 10 11
WB EB
Effective 2/20/2024
Until further notice.

On Saturday’s & Sunday’s, the bus will shut down for lunch from 12:30 p.m. to 1:30 p.m.

Route 1 Effective 2/20/2024 INFO: 951-922-3242
www.banningconnect.com
969

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Laurie Sampson, Assistant City Manager
MEETING DATE: February 13, 2024
SUBJECT: Consideration of Resolution 2024-19, Approving the Reprogramming of Community Development Grant (CDBG) Funds for FY 2024-2025 in the Amount of $30,000 from Fire Station #89 to the Dysart Park Bleacher Project
RECOMMENDATION:

Staff recommends adoption of Resolution 2024-19, approving the reprogramming of CDBG funds for FY 2024-2025 in the amount of $30,000 from Fire Station #89 to the Dysart Park Bleacher Project.

BACKGROUND:

On October 24, 2023, the Council approved Resolution 2023-171 authorizing the admission of CDBG FY 2024-2025 applications to Riverside County Housing and Workforce Solutions (HWS) to be submitted for approval by the Riverside County Board of Supervisors. These applications included an application for $30,000 for the installation of an exhaust venting system for Fire Station #89.

JUSTIFICATION:

On January 22, 2024, the City of Banning was informed by HWS that the application submitted for Fire Station #89 did not meet the criteria for CDBG Funds and will not be approved by the Board of Supervisors. Staff is therefore requesting Council authorize these funds be reprogrammed to the Dysart Park Bleacher Project.

FISCAL IMPACT:

None
ALTERNATIVES:

The Council may choose not to reprogram the $30,000 to the Dysart Park Bleacher project and designate another approved application to receive these funds. The other approved applications are the City of Banning Senior Center ADA Improvements Project and the Sunrise Church Food Pantry.

ATTACHMENTS:

1. CC Resolution 2024-19.docx

2. CC Resolution No. 2023-171.pdf

3. Reallocation Request 2-13-2024.docx
970
Resolution 2024-19

Page 1 of 4 ends

RESOLUTION 2024-19

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,

APPROVING THE REPROGRAMMING OF COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) FUNDS FOR FY 2024-2025 IN THE AMOUNT OF $30,000 ROM FIRE STATON #89 TO THE DYSART PARK BLEACHER PROJECT.

WHEREAS, on October 24, 2023, the Council approved Resolution 2023-171 authorizing the admission of CDBG FY 2024-2025 applications to Riverside County Housing and Workforce Solutions (HWS) to be submitted for approval by the Riverside County Board of Supervisors; and WHEREAS, the submission included an application for $30,000 for the installation of an exhaust venting system for Fire Station #89; and
WHEREAS, on January 22, 2024, the City of Banning was informed by HWS that the application submitted for Fire Station #89 did not meet the criteria for CDBG Funds and will not be approved by the Board of Supervisors; and
WHEREAS, it is requested the $30,000 be reprogrammed to the Dysart Park Bleacher Project.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:

SECTION 1. The City Council approves Resolution 2024-19, Reprogramming CDBG FY 2024- 2025 Funds in the amount of $30,000 from Fire Station #89 to the Dysart Park Bleachers Project.

SECTION 2. The City Clerk shall certify 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 13th day of February 2024.

Alberto Sanchez, Mayor
City of Banning
ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning
971
Resolution 2024-19

Page 2 of 4 ends

APPROVED AS TO FORM AND
LEGAL CONTENT:

Serita R. Young, City Attorney
Richards, Watson & Gershon
972
Resolution 2024-19

Page 3 of 4 ends

CERTIFICATION:

I, Caroline Patton, Deputy City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-19, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 13th day of February 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
973
Resolution 2024-19

Page 4 of 4 ends

EXHIBIT A
Description of Exhibit A
974
RESOLUTION 2023-171

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,

APPROVING THE COMMUNITY DEVELOPMENT BLOCK GRANT ( CDBG) PROGRAM PROJECTS FOR FISCAL YEAR 2024/2025
WHEREAS, the City of Banning has submitted applications for projects/activities under the Community Development Block Grant (" CDBG") program to the County of Riverside Department of Housing, Homelessness Prevention and Workforce Solutions annually; and
WHEREAS, during the month of September, notifications of application availability were provided to non-profit organizations, City Departments, and the general public through various media, including legal notice, City website, and the City's Social Media outlets; and
WHEREAS, on September 26, 2023, at its regular meeting, the City Council appointed an Ad-hoc Committee to review applications received. The applications were provided to the committee for review on October 11, 2023, and recommendation as shown as Exhibit "A"; and
WHEREAS, the CDBG Ad-hoc Committee reviewed applications and recommended the following projects be funded; City of Banning Senior Center ADA Improvements $ 75,000, City of Banning Dysart Park Bleachers $ 75,000, City of Banning Fire Station #89 Plymovent Exhaust System $30,000 and Sunrise Church Banning Peace Center Food Distribution Center $11,264; and
WHEREAS, the projects submitted herein meets the CDBG program guidelines and/or requirements; and
WHEREAS, it is necessary that the project be approved by the City Council through resolution in order for the City and its residents to obtain and utilize the federally funded CDBG grant funds.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:

SECTION 1. The Banning City Council adopts Resolution 2023-171, approving the projects submitted for funding under the Community Development Block Grant programs for Fiscal Year 2024/2025; and
SECTION 2. The Administrative Services Director or his designee is authorized to make necessary budget adjustments, appropriations and transfers related to this resolution; and Resolution 2023-171

Page 1 of 4 ends

975
SECTION 3. The City Manager is authorized to submit four projects for Fiscal Year 2023/ 2024 Community Development Block Grant program to County of Riverside Housing and Workforce Solutions for approval by their Board.

SECTION 4. 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 24th day of October 2023.

ATTEST:

Caroline Patton, De
City of Banning

APPROVED AS TO FORM AND
LEGAL CONTENT:

Serita R. Young, City Attorney
Richards, Watson & Gershon
Resolution 2023- 171

Page 2 of 4 ends

Alberto
City of
976
CERTIFICATION:

I, Caroline Patton, Deputy City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2023-171, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 24th day of October 2023 by the following vote, to wit:

AYES: Flynn, Gonzales, Minjares, Sanchez, and Wallace .

NOES:

ABSENT:

ABSTAIN:

Resolution 2023-171

Page 3 of 4 ends

Caroline Patton , Dep City Clerk
City of Banning, Californ ia
977

EXHIBIT A
Summary of Applications and Funding for
Community Development Block Grant (CDBG) Program
Funding Cycle FY 2024-2025
Applications Received
Community Projects
Faith in Action
Requested
Funding
Ad-Hoc
Recommended
Voices for Children
Boys & Girls Club
Sunrise Church Food Pantry
City of Banning Projects
C>yvlncorne Program .Assistance.

S,~riior Qe,nterACJA Improvements
Dysart Park Bleachers
S,tation # 89Plymovent System .

Total'
Resolution 2023- 171

Page 4 of 4 ends

39,500
12, 000.
30,000
20,000
12,SOQ.

J02,590
75,000
75,000
366, 500

0.00 0.09.

0.00 11,264

0.00 75,0.QQ
75,000
000 .
191,264
978
City of Banning
Office of the City Manager
February 14, 2024
Anna Varona-Doromal
Supervising Development Specialist
County of Riverside
Housing and Workforce Solutions
3403 10th Street, Suite 300
Riverside, CA 92501
Subject: Request to reprogram CDBG FY 2024-2025 funds in the amount of $30,000.00 from Fire Station #89. to the Dysart Park Bleacher Project.

Please accept this request to reprogram remaining funds in the amount of $30,000.00 from Fire Station #89 to the Dysart Park Bleacher Project.

The certified Resolution 2024-19 is enclosed as approved by City Council on February 13, 2024.

If you have any questions, please contact me at [email protected] .

Sincerely,
Laurie J Sampson
Assistant City Manager
99 E. Ramsey St. * P.O. Box 998 * Banning, CA 92220‐0998 * (951) 922‐3100 * Fax (951) 922‐3128 979

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Derek Thesier, Acting Chief of Police
Derek Thesier
MEETING DATE: February 13, 2024
SUBJECT: Consideration of Resolution 2024-20, Authorizing the Acceptance of the Donation of Three (3) BMW Police Motorcycles from the City of Riverside Police Department.

RECOMMENDATION:

City staff recommends that the City Council adopt Resolution 2024-20.

BACKGROUND:

The Banning Police Department is re-establishing the Traffic Bureau, which will be comprised of both sworn and non-sworn members of the Banning Police Department. This Bureau will investigate traffic collisions and engage in traffic enforcement. The Traffic Bureau will also participate in public education, the management of grants and work with the traffic engineer to help with traffic studies and create safer streets. The Traffic Bureau's ultimate goal will be to minimize traffic collisions, injuries associated with traffic collisions and traffic related deaths. The vehicles used to enforce the traffic laws will be comprised of traditional patrol vehicles, police motorcycles and other specialized vehicles.

The Banning Police Department previously had a Police Motorcycle program and is actively working to re-implement the program. Banning Police Department management reached out to the surrounding police agencies for assistance and Chief Larry Gonzalez of the Riverside Police Department answered the call. The Riverside Police Department was in the process of decommissioning several Police Motorcycles as they had just taken delivery of their new fleet. Three (3) Police Motorcycles, in good condition, were donated by the City of Riverside City Council on January 16, 2024, to the Banning Police Department in an effort to help re-establish the Banning Police Department's Motor Officer Program. The donated motorcycles include: two (2) 2013 BMW Motorcycles; and one (1) 2014 BMW Motorcycle.

JUSTIFICATION:

These donated motorcycles will be used to facilitate the re-implementation of the Banning Police Department's motor program at minimal cost. These donated motors will allow for the Banning Police Department to field a second motor in or about July 2024, while allowing for a backup motorcycle should either motorcycle need maintenance / service.

FISCAL IMPACT:

The estimated fiscal impact for all three (3) motorcycles to include fuel usage according to the Fleet Services Manager will be approximately $5,000 annually.

ALTERNATIVES:

The City Council may choose to reject the donation and provide alternative direction. 980
ATTACHMENTS:

1. Resolution 2024-20 PD Motorcycle donation

2. Donated Police Motors Riverside.pdf
981
Resolution 2024-20

Page 1 of 3 ends

RESOLUTION 2024-20

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, AUTHORIZING THE ACCEPTANCE OF THE DONATION OF THREE (3) BMW POLICE

MOTORCYCLES FROM THE CITY OF RIVERSIDE POLICE DEPARTMENT WHEREAS, the City of Riverside Police Department has donated three (3) police motorcycles to the City of Banning; and,
WHEREAS, the City of Banning’s Police Department desires to accept the donation of the three (3) police motorcycles from the City of Riverside Police Department; and, WHEREAS, the Banning Police Department will utilize the donated police motorcycles to re-implement its Motor Officer Program in an effort to create a safer environment for those living in, traveling through, and working within the City of Banning.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:

SECTION 1. The City Council accepts the donation of the three (3) BMW Police Motorcycles from the City of Riverside.

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 13th day of February 2024.

Alberto Sanchez, Mayor
City of Banning
ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning
982
Resolution 2024-20

Page 2 of 3 ends

APPROVED AS TO FORM AND
LEGAL CONTENT:

Serita R. Young, City Attorney
Richards, Watson & Gershon
983
Resolution 2024-20

Page 3 of 3 ends

CERTIFICATION:

I, Caroline Patton, Deputy City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-20, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 13th day of February 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
984
985
986
987

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Ann Marie Loconte, Associate Engineer
Art Vela, Director of Public Works
MEETING DATE: February 13, 2024
SUBJECT: Consideration of Resolution 2024-21, Initiating Proceedings to Update Landscape Maintenance District No. 1 for Fiscal Year 2024/2025 RECOMMENDATION:

Staff recommends that City Council adopt Resolution 2024-21, initiating proceedings to update Landscape Maintenance District No. 1 for Fiscal Year 2024/2025 in order to prepare the assessments of the area.

BACKGROUND:

In accordance with the “Landscaping and Lighting Act of 1972” (“1972 Act”) of the Streets and Highways Code, the City Council adopted a resolution on August 14, 1990, ordering the formation of Landscape Maintenance District (LMD) No. 1, (“the District”) the boundaries of which are shown in Attachment “2.” An additional five tracts and three tentative tracts were annexed (Annexation No. 1) into LMD No. 1 when the City Council approved Resolution No. 2005-36 on May 10, 2005. Tract No. 37320 then joined LMD No. 1 on November 14, 2023 when the City Council approved Resolution No. 2023-177, as Annexation No. 2. The District, by special benefit assessments, provides funding for the servicing and maintenance of certain landscape areas within the City of Banning, all of which are located in the public right-of-way.

The 1972 Act requires that assessments are to be levied according to benefit rather than according to assessed value. Resolution No. 2024-21 will initiate proceedings to update the assessment for LMD No. 1 for Fiscal Year 2024/2025. A tentative schedule for updating the District, as required by the “Landscaping and Lighting Act of 1972,” is attached hereto as Attachment 3.

JUSTIFICATION:

The City Council approved the formation of Landscape Maintenance District No. 1 by adopting Resolution 1990-59 on August 14, 1990. The adoption of Resolution 2024-21 will enable the City Engineer to prepare the assessments for Fiscal Year 2024/2025.

FISCAL IMPACT:

None related to Resolution 2024-21. Staff plans on presenting detailed information regarding the revenues and expenditures related to LMD No.1 during a workshop in the near future. Additionally, a detailed estimate will be prepared and forwarded with the required Engineer’s Report.

ALTERNATIVES:

1. Adopt Resolution 2024-21 as recommended.

2. Adopt Resolution 2024-21 with modifications.

3. Do not approve Resolution 2024-21 and provide alternative direction to staff. Not approving the update of the LMD No. 1 assessment will likely result in decreased revenue for maintaining the 988
LMD No. 1 areas.

ATTACHMENTS:

1. Resolution 2024-21.docx

2. Attachment 2- LMD No.1 Map.pdf

3. Attachment 3- Tentative Schedule for Updating Landscape Maintenance District No. 1.doc 989
Resolution 2024-21

Page 1 of 3 ends

RESOLUTION 2024-21

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, INITIATING PROCEEDINGS TO UPDATE LANDSCAPE MAINTENANCE DISTRICT NO. 1 FOR THE FISCAL YEAR 2024/2025, PURSUANT TO THE LANDSCAPING AND LIGHTING ACT OF 1972
WHEREAS, the City Council, pursuant to the provisions of the “Landscaping and Lighting Act of 1972,” Part 2 of Division 15 of the Streets and Highways Code of California, beginning with Section 22500, desires to initiate proceedings to update the City of Banning’s Landscape Maintenance District No. 1, and to levy and collect annual assessments to pay for the operation, maintenance and servicing of landscaping and all appurtenant facilities related thereto.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:

SECTION 1. The City Council desires to update Landscape Maintenance District No. 1 for Fiscal Year 2024/2025, pursuant to the “Landscaping and Lighting Act of 1972” (Section 22500 and following, Streets and Highways Code) for the purpose of the following improvements:

Maintaining and servicing street trees, parkways, median islands, perimeter strips and backup walls, side slopes adjacent to sidewalks and storm drains, open space areas, flood detention or retention basins, and the irrigation of the above improvements.

SECTION 2. The City Council hereby directs the City Engineer to prepare and file with the City Clerk an Engineer’s Report in accordance with Article 4 of Chapter 1 of the “Landscaping and Lighting Act of 1972”.

SECTION 3. The fee to be assessed will not exceed the reasonable cost of providing the service. The fee charged shall be based on the rate and methodology set forth in Resolution Nos. 1990-59, 2005-36 and 2023-177.

SECTION 4. The Mayor shall sign this resolution and the City Clerk shall attest and certify to the passage and adoption thereof.

SECTION 5. 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 13th day of February 2024.

Alberto Sanchez, Mayor
City of Banning
990
Resolution 2024-21

Page 2 of 3 ends

ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning

APPROVED AS TO FORM AND
LEGAL CONTENT:

Serita R. Young, City Attorney
Richards, Watson & Gershon
991
Resolution 2024-21

Page 3 of 3 ends

CERTIFICATION:

I, Caroline Patton, Deputy City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-21, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 13 day of February 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Deputy City Clerk
City of Banning, California
992
TR 32370
TR 21882
TR 30222 TR 30906
TR 28252
TR 30186
TR 23446
TR 23598
TR 31835
TR 23446
TR 30793
TR 32109
TR 31834
TR 22810
TR 22811
TR 31833
TR 29721
TR 22913
LEGEND
City Boundary
Tracts
Existing Zone
1 2
3 4
5 6
7 8
9 10
LMD No. 1 Zones
2024-2025
11 993
Resolution No. 2024-21
ATTACHMENT 3
(Tentative Schedule for Updating Landscape Maintenance District No. 1) Item Council Meeting
Resolution Initiating Update February 13, 2024
Resolution of Intention (Approving Engineer’s
Report)
March 26, 2024
Resolution Confirming Assessment (Public
Hearing)
May 14, 2024
994

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Roberto Jauregui, Acting Lieutenant
Derek Thesier, Acting Chief of Police
MEETING DATE: February 13, 2024
SUBJECT: Consideration of Resolution 2024-22, Approving the Purchase of 50 Motorola APX NEXT Radios and Accessories
RECOMMENDATION:

Staff recommends the City Council adopt Resolution 2024-22.

BACKGROUND:

Currently the Banning Police Department utilizes the Motorola APX 7000 radios as its handheld portable radio. The APX 7000 is now a radio that is no longer serviceable by Motorola as the 8000 series and now APX NEXT have since replaced the 7000 series. The Banning Police Department tested and evaluated products from multiple vendors and determined that based on functionality, interoperability, and reliability, the Motorola APX NEXT radio is the optimal piece of equipment to fill the needs of the Banning Police Department, ensure enhanced officer safety for department members, and effectively respond to emergencies throughout the City of Banning and neighboring jurisdictions.

JUSTIFICATION:

The Banning Police Department is currently utilizing all its handheld radio resources and needs to be able to equip incoming personnel, as well as upgrade radio equipment to ensure all personnel are utilizing equipment that is able to be serviced should a problem occur. The purchase of Motorola APX NEXT portable radios will allow the Banning Police Department to fully equip staff members with the most up-to-date and technologically advanced radio equipment. Staff have researched other comparable radios currently available and have found that Motorola best fit the City's best interest and have Sole Sourced this procurement for the following reasons. These radios will allow department members to utilize a piece of life-saving equipment that will enhance officer safety and allow uninterrupted communication between the Banning Police Department and allied agencies. The Motorola APX NEXT radios include features such as GPS location services so while officers are conducting their duties it is possible to locate officers and deploy resources appropriately during emergency situations, including natural disasters such as wildfires. The APX Next radio is also LTE enabled so when a traditional radio loses the ability to communicate because it is out of range of radio towers, the APX NEXT LTE kicks in for uninterrupted service.

Radios are a key component for communication to officers who must have reliable communication with not only the Banning Police Department but to other agencies in the region. Staff researched hardware and in evaluation of functionality and compatibility, determined that using the Motorola APX radios would be in the best interest of the City. Staff identified the availability of alternative radios and found similar products to have compatibility issues, less coverage, and were less reliable than using the Motorola radios. After careful consideration, Staff recommends single source, sole source purchase of the 995
Motorola APX NEXT portable radios.

FISCAL IMPACT:

The purchase of 50 Motorola APX NEXT radios and related accessories will require an amount not to exceed $648,253.15, with the following payment option:

1. Motorola Solutions allows for a one-year deferred payment option, which would allow the City of Banning and Banning Police Department to seek grant funding during that year.

2. After the one-year deferred payment period if grant funding were not located to fund the entirety of the project, then the City of Banning would pay for any remaining balance of the purchase cost over five annual payments (including lease rate).

3. Five annual payments, beginning one-year after contract execution, in the amount of $129,650.63 (includes lease interest rate of 5.85%).

Pursuant to Government Code Section 5852.1, the following good faith estimates (obtained from the Lender) must be disclosed at a public meeting before the authorization of the Lease. The estimates are based on market estimates as of 1/23/2024:

Information to be disclosed per Government Code
Section 5852.1:

Estimates as
of 1/23/2024
True interest cost of the Lease (the rate necessary to
discount the amounts payable on the respective principal and interest payment dates to the purchase price
received for the new issue of Lease)

The City Council may choose to reject staff’s recommendation and provide alternative direction.

ATTACHMENTS:

1. Resolution 2024-22, PD Radio Purchase.docx

2. Exhibit A - Lease Communications System Services Agreement.docx

3. Banning PD Finance Options

4. banningjan24.xlsx

5. Sole Source Vendor Form - Motorola.docx
996
RESOLUTION 2024-22

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, APPROVING THE PURCHASE OF 50 MOTOROLA APX NEXT PORTABLE RADIOS AND

ACCESSORIES
WHEREAS, the City of Banning Police Department currently utilizes the Motorola APX 7000 radios as its handheld portable radio and the APX 7000 is no longer serviceable by Motorola; and
WHEREAS, the City of Banning Police Department tested and evaluated products from multiple vendors and determined that based on functionality, interoperability, and reliability, the Motorola APX NEXT radio is the optimal piece of equipment; and WHEREAS, the City of Banning Police Department the radio equipment is crucial to ensure enhanced officer safety for department members, and effectively respond to emergencies throughout the City of Banning and neighboring jurisdictions; and WHEREAS, the City of Banning, now wishes to purchase 50 new Motorola APX NEXT portable radios and related accessories in the amount of $648,253.15, using the radios using the same vendor utilized for previous police radio purchases.

NOW, THEREFORE, BE IT RESOLVED, AS FOLLOWS: by the City Council of the City of Banning as follows:

Section 1. The City Council approves the sole source purchase of 50 Motorola APX NEXT police radios through Motorola Solutions, in an amount not to exceed $648,253.15, and authorizes the City Manager to sign a Communications System and Services Agreement with Motorola Solutions, Inc., in substantial form as attached hereto as Exhibit A, on behalf of the City Council.

Section 2. The City Council authorizes the City Manager to make non-substantive changes to the Agreement prior to execution, and to make necessary budget adjustments, appropriations, and transfers related to this resolution.

Section 3. The City Council approves the use of General Fund dollars to make three annual payments of $129,650.63 per year (payments include five-year lease rate of 5.85%) after the one-year deferred payment window should outside funding not be obtained.

Section 4. 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 13th day of February 2024.

Alberto Sanchez, Mayor
City of Banning
997
ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning

APPROVED AS TO FORM AND
LEGAL CONTENT:

Serita R. Young, City Attorney
Richards, Watson & Gershon
998
CERTIFICATION:

I, Caroline Patton, Deputy City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-22, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 13th day of February 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
999
Exhibit A
Agreement
1000
Lease Communication System and Services Agreement v.2023.05.24 1 Communications System and Services Agreement
(Lease)
Motorola Solutions, Inc. (“Motorola”) and Banning Police Department (“Customer”) enter into this “Agreement,” pursuant to which Customer will purchase and Motorola will sell the System and Services, as described below. Motorola and Customer may be referred to individually as a “Party” and collectively as the “Parties.” For good and valuable consideration, the Parties agree as follows:

Section 1 ATTACHMENTS

1.1. EXHIBITS. The Exhibits listed below are exhibits related to the System sale and implementation. These Exhibits are incorporated into and made a part of this Agreement.

Exhibit A “Motorola Software License Agreement”
Exhibit B “System Purchase”
Exhibit C Motorola QUOTE-2476772 dated 1/10/24
Exhibit D “Equipment Lease Purchase Agreement Delivery and Acceptance Certificate”

1.2. ADDENDUM (ADDENDA). Customer may elect to purchase professional or subscription services in addition to the System and related services. Any such services will be governed by the terms in the main body of the Agreement and an applicable Addendum containing terms specific to such service. Such Addenda will be labeled with the name of the service being purchased.

1.3 ORDER OF PRECEDENCE. In interpreting this Agreement and resolving any ambiguities: 1) the main body of this Agreement takes precedence over the exhibits (unless otherwise specified in an exhibit), and any inconsistency between Exhibits A through E will be resolved in their listed order, and 2) The applicable service Addendum will take precedence over the main body of the Agreement and the Exhibits.

Section 2 DEFINITIONS
Capitalized terms used in this Agreement have the following meanings:
“Acceptance Tests” means those tests described in the Acceptance Test Plan. “Addendum (Addenda)” is the title of the document(s) containing a specific set of terms and conditions applicable to a particular service or other offering beyond the Communication System and System implementation services. The terms in the Addendum are applicable only to the specific service or offering described therein.
“Administrative User Credentials” means an account that has total access over the operating system, files, end user accounts and passwords at either the System level or box level. Customer’s personnel with access to the Administrative User Credentials may be referred to as the Administrative User. “Beneficial Use” means when Customer first uses the System or a Subsystem for operational purposes (excluding training or testing).
“Confidential Information” means all information consistent with the fulfillment of this Agreement that is (i) disclosed under this Agreement in oral, written, graphic, machine recognizable, and/or sample form, being clearly designated, labeled or marked as confidential or its equivalent or (ii) obtained by examination, testing or analysis of any hardware, software or any component part thereof provided by discloser to recipient. The nature and existence of this Agreement are considered Confidential Information. Confidential Information that is disclosed orally must be identified as confidential at the time of disclosure and confirmed by the discloser by submitting a written document to the recipient within thirty (30) days after such 1001
Lease Communication System and Services Agreement v.2023.05.24 2 disclosure. The written document must contain a summary of the Confidential Information disclosed with enough specificity for identification purpose and must be labeled or marked as confidential or its equivalent. “Contract Price” means the price for the System and implementation Services, excluding applicable sales or similar taxes and freight charges. Further, unless otherwise stated in Exhibit B, “Payment” or the pricing pages of the proposal, recurring fees for maintenance, SUA, or subscription services are not included in the Contract Price.
“Deliverables” means all written information (such as reports, specifications, designs, plans, drawings, analytics, Solution Data, or other technical or business information) that Motorola prepares for Customer in the performance of the Services and is obligated to provide to Customer under this Agreement. The Deliverables, if any, are more fully described in the Statement of Work. “Derivative Proprietary Materials” means derivatives of the Proprietary Materials that Motorola may from time to time, including during the course of providing the Services, develop and/or use and/or to which Motorola provides Customer access.
“Effective Date” means that date upon which the last Party executes this Agreement. “Equipment” means the hardware components of the Solution that Customer purchases from Motorola under this Agreement. Equipment that is part of the System is described in the Equipment List. “Equipment Lease-Purchase Agreement” means the agreement by which Customer finances all or a portion of the Contract Price.
“Feedback” means comments or information, in oral or written form, given to Motorola by Customer in connection with or relating to Equipment or Services, during the term of this Agreement. “Force Majeure” means an event, circumstance, or act that is beyond a Party’s reasonable control, such as an act of God, an act of the public enemy, an act of a government entity, strikes, other labor disturbances, supplier performance, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, riots, or any other similar cause.
“Motorola Software” means software that Motorola or its affiliated companies owns. “Non-Motorola Software” means software that a party other than Motorola or its affiliated companies owns.
“Open Source Software” (also called “freeware” or “shareware”) means software with either freely obtainable source code, license for modification, or permission for free distribution. “Proprietary Materials” means certain software tools and/or other technical materials, including, but not limited to, data, modules, components, designs, utilities, subsets, objects, program listings, models, methodologies, programs, systems, analysis frameworks, leading practices and specifications which Motorola has developed prior to, or independently from, the provision of the Services and/or which Motorola licenses from third parties.
“Proprietary Rights” means the patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names, mask works, know-how, and other intellectual property rights in and to the Equipment and Software, including those created or produced by Motorola under this Agreement and any corrections, bug fixes, enhancements, updates or modifications to or derivative works from the Software whether made by Motorola or another party.
“Services” means system implementation, maintenance, support, subscription, or other professional services provided under this Agreement, which may be further described in the applicable Addendum 1002
Lease Communication System and Services Agreement v.2023.05.24 3 and/or SOW.
“Software” (i) means proprietary software in object code format, and adaptations, translations, decompilations, disassemblies, emulations, or derivative works of such software; (ii) means any modifications, enhancements, new versions and new releases of the software provided by Motorola; and (iii) may contain one or more items of software owned by a third party supplier. The term "Software" does not include any third party software provided under separate license or third party software not licensable under the terms of this Agreement.
“Software License Agreement” means the Motorola Software License Agreement (Exhibit A). “Software Support Policy” (“SwSP”) means the policy set forth at https://www.motorolasolutions.com/content/dam/msi/secure/services/software_policy.pdf describing the specific technical support that will be provided to Customers under the Warranty Period and during any paid maintenance support period for Motorola Software. This policy may be modified from time to time at Motorola’s discretion.
“Solution” means the combination of the System(s) and Services provided by Motorola under this Agreement.
“Solution Data” means Customer data that is transformed, altered, processed, aggregated, correlated or operated on by Motorola, its vendors or other data sources and data that has been manipulated or retrieved using Motorola know-how to produce value-added content to data consumers, including customers or citizens which is made available to Customer with the Solution and Services. “Specifications” means the functionality and performance requirements that are described in the Technical and Implementation Documents.
“SUA” or “SUA II” means Motorola’s Software Upgrade Agreement program. “Subsystem” means a major part of the System that performs specific functions or operations.

Subsystems are described in the Technical and Implementation Documents. “System” means the Equipment, including incidental hardware and materials, Software, and design, installation and implementation services that are combined together into an integrated system; the System(s) is (are) described in the Technical and Implementation Documents. “System Acceptance” means the Acceptance Tests have been successfully completed. “System Data” means data created by, in connection with or in relation to Equipment or the performance of Services under this Agreement.
“Warranty Period” for System Hardware, Software, or services related to system implementation means one (1) year from the date of System Acceptance or Beneficial Use, whichever occurs first. Unless otherwise stated in the applicable Addendum, Warranty Period for other Services means ninety (90) days from performance of the Service.

Section 3 SCOPE OF AGREEMENT AND TERM

3.1. SCOPE OF WORK. Motorola will provide, install and test the System(s), and perform its other contractual responsibilities to provide the Solution, all in accordance with this Agreement. Customer will perform its contractual responsibilities in accordance with this Agreement.

3.2. CHANGE ORDERS. Either Party may request changes within the general scope of this Agreement. If a requested change causes an increase or decrease in the cost or time required to perform 1003
Lease Communication System and Services Agreement v.2023.05.24 4 this Agreement, the Parties will agree to an equitable adjustment of the Contract Price or applicable subscription fees, Performance Schedule, or both, and will reflect the adjustment in a change order or Addendum. Neither Party is obligated to perform requested changes unless both Parties execute a written change order.

3.3. TERM. Unless terminated in accordance with other provisions of this Agreement or extended by mutual agreement of the Parties, the term of this Agreement begins on the Effective Date and continues until the date of Final Project Acceptance or expiration of the Warranty Period, or completion of the Services, whichever occurs last. The term and the effective date of recurring Services will be set forth in the applicable Addendum.

3.4. ADDITIONAL EQUIPMENT OR SOFTWARE. For three (3) years after the expiration date of the Agreement, Customer may order additional Equipment or Software, if it is then available. Each purchase order must refer to this Agreement, the expiration date of the Agreement, and must specify the pricing and delivery terms. The Parties agree that, notwithstanding expiration of the Agreement, the applicable provisions of this Agreement (except for pricing, delivery, passage of title and risk of loss to Equipment, warranty commencement, and payment terms) will govern the purchase and sale of the additional Equipment or Software. Additional or contrary terms in the purchase order will be inapplicable, unless signed by both parties. Title and risk of loss to additional Equipment will pass at shipment, warranty will commence upon delivery, and payment is due within thirty (30) days after the invoice date. Motorola will send Customer an invoice as the additional Equipment is shipped or Software is licensed. Alternatively, Customer may register with and place orders through the Motorola Solutions Customer Portal eCommerce Shop, and this Agreement will be the “Underlying Agreement” for those eCommerce transactions rather than the eCommerce Shop Terms and Conditions of Sale. eCommerce Shop registration and other information may be found at https://www.motorolasolutions.com/en_us/registration and the shop support telephone number is (800) 814-0601.

3.5. MOTOROLA SOFTWARE. Any Motorola Software, including subsequent releases, is licensed to Customer solely in accordance with the Software License Agreement. Customer hereby accepts and agrees to abide by all of the terms and restrictions of the Software License Agreement.

3.6. NON-MOTOROLA SOFTWARE. Any Non-Motorola Software is licensed to Customer in accordance with the standard license, terms, and restrictions of the copyright owner on the Effective Date unless the copyright owner has granted to Motorola the right to sublicense the Non-Motorola Software pursuant to the Software License Agreement, in which case it applies and the copyright owner will have all of Licensor’s rights and protections under the Software License Agreement. Motorola makes no representations or warranties of any kind regarding Non-Motorola Software. Non-Motorola Software may include Open Source Software.

3.7. SUBSTITUTIONS. At no additional cost to Customer, Motorola may substitute any Equipment, Software, or services to be provided by Motorola, if the substitute meets or exceeds the Specifications and is of equivalent or better quality to the Customer. Any substitution will be reflected in a change order.

3.8. OPTIONAL EQUIPMENT OR SOFTWARE. This paragraph applies only if a “Priced Options” exhibit is shown in Section 1, or if the parties amend this Agreement to add a Priced Options exhibit. During the term of the option as stated in the Priced Options exhibit (or if no term is stated, then for one (1) year after the Effective Date), Customer has the right and option to purchase the equipment, software, and related services that are described in the Priced Options exhibit. Customer may exercise this option by giving written notice to Seller which must designate what equipment, software, and related services Customer is selecting (including quantities, if applicable). To the extent they apply, the terms and conditions of this Agreement will govern the transaction; however, the parties acknowledge that certain provisions must be agreed upon, and they agree to negotiate those in good faith promptly after Customer delivers the option exercise notice. Examples of provisions that may need to be negotiated are: specific lists of deliverables, statements of work, acceptance test plans, delivery and implementation schedules, payment terms, maintenance and support provisions, additions to or modifications of the Software License 1004
Lease Communication System and Services Agreement v.2023.05.24 5 Agreement, hosting terms, and modifications to the acceptance and warranty provisions.

Section 4 SERVICES

4.1. If Customer desires and Motorola agrees to continue Services beyond the Term, Customer’s issuance and Motorola’s acceptance of a purchase order for Services will serve as an automatic extension of the Agreement for purposes of the continuing Services. Only the terms and conditions applicable to the performance of Services will apply to the extended Agreement.

4.2. During the Warranty Period, in addition to warranty services, Motorola will provide maintenance Services for the Equipment and support for the Motorola Software pursuant to the applicable maintenance and support Statements of Work. Support for the Motorola Software will be in accordance with Motorola's established Software Support Policy. Copies of the SwSP can be found at https://www.motorolasolutions.com/content/dam/msi/secure/services/software_policy.pdf and will be sent by mail, email or fax to Customer upon written request. Maintenance Services and support during the Warranty Period are included in the Contract Price. Unless already included in the Contract Price, if Customer wishes to purchase 1) additional maintenance or software support services during the Warranty Period; or 2) continue or expand maintenance, software support, installation, and/or SUA services after the Warranty Period, Motorola will provide the description of and pricing for such services in a separate proposal document. Unless otherwise agreed by the parties in writing, the terms and conditions in this Agreement applicable to maintenance, support, installation, and/or SUA Services, will be included in the Maintenance and Support Addendum, SUA Addendum, the applicable Statements of Work, and the proposal, (if applicable). These collective terms will govern the provision of such Services.

To obtain any such additional Services, Customer will issue a purchase order referring to this Agreement and the separate proposal document. Omission of reference to this Agreement in Customer’s purchase order will not affect the applicability of this Agreement. Motorola’s proposal may include a cover page entitled “Service Agreement” or “Installation Agreement”, as applicable, and other attachments. These cover pages and other attachments are incorporated into this Agreement by this reference

4.3. PROFESSIONAL AND SUBSCRIPTION SERVICES. If Customer purchases professional or subscription Services as part of the Solution, additional or different terms specific to such Service will be included in the applicable Addendum and will apply to those Services. Customer may purchase additional professional or subscription services by issuing a purchase order referencing this Agreement and Motorola’s proposal for such additional services.

4.4. Any information in the form of specifications, drawings, reprints, technical information or otherwise furnished to Customer in providing Services under this Agreement or Motorola data viewed, accessed, will remain Motorola’s property, will be deemed proprietary, Confidential Information. This Confidential Information will be promptly returned at Motorola's request.

4.5. TOOLS. All tools, equipment, dies, gauges, models, drawings or other materials paid for or furnished by Motorola for the purpose of providing Services under this Agreement will be and remain the sole property of Motorola. Customer will safeguard all such property while it is in Customer’s custody or control, be liable for any loss or damage to this property, and return it to Motorola upon request. This property will be held by Customer for Motorola’s use without charge and may be removed from Customer’s premises by Motorola at any time without restriction. Upon termination of the contract for any reason, Customer shall return to Motorola all equipment delivered to Customer.

4.6. COVENANT NOT TO EMPLOY. During the term of this Agreement and continuing for a period of two (2) years thereafter, Customer will not hire, engage on contract, solicit the employment of, or recommend employment to any third party of any employee of Motorola or its subcontractors without the prior written authorization of Motorola. This provision applies only to those employees of Motorola or its subcontractors who are responsible for rendering Services under this Agreement. If this provision is found to be overly broad under applicable law, it will be modified as necessary to conform to applicable law. 1005
Lease Communication System and Services Agreement v.2023.05.24 6 4.7. CUSTOMER OBLIGATIONS. If the applicable Statement of Work or Addendum contains assumptions that affect the Services or Deliverables, Customer will verify that they are accurate and complete. Any information that Customer provides to Motorola concerning the Services or Deliverables will be accurate and complete in all material respects. Customer will make timely decisions and obtain any required management approvals that are reasonably necessary for Motorola to perform the Services and its other duties under this Agreement. Unless the Statement of Work states the contrary, Motorola may rely upon and is not required to evaluate, confirm, reject, modify, or provide advice concerning any assumptions and Customer-provided information, decisions and approvals described in this paragraph.

4.8. ASSUMPTIONS. If any assumptions or conditions contained in this Agreement, applicable Addenda or Statements of Work prove to be incorrect or if Customer’s obligations are not performed, Motorola’s ability to perform under this Agreement may be impacted and changes to the Contract Price, subscription fees, project schedule, Deliverables, or other changes may be necessary.

4.9. NON-PRECLUSION. If, as a result of the Services performed under this Agreement, Motorola recommends that Customer purchase products or other services, nothing in this Agreement precludes Motorola from participating in a future competitive bidding process or otherwise offering or selling the recommended products or other services to Customer. Customer represents that this paragraph does not violate its procurement or other laws, regulations, or policies.

4.10. PROPRIETARY MATERIALS. Customer acknowledges that Motorola may use and/or provide Customer with access to Proprietary Materials and Derivative Proprietary Materials. The Proprietary Materials and the Derivative Proprietary Materials are the sole and exclusive property of Motorola and Motorola retains all right, title and interest in and to the Proprietary Materials and Derivative Proprietary Materials.

4.11. ADDITIONAL SERVICES. Any services performed by Motorola outside the scope of this Agreement at the direction of Customer will be considered to be additional Services which are subject to additional charges. Any agreement to perform additional Services will be reflected in a written and executed change order, Addendum or amendment to this Agreement.

Section 5 PERFORMANCE SCHEDULE
The Parties will perform their respective responsibilities in accordance with the Performance Schedule. By executing this Agreement, Customer authorizes Motorola to proceed with contract performance.

Section 6 CONTRACT PRICE, PAYMENT AND INVOICING

6.1. Customer affirms that a purchase order or notice to proceed is not required for contract performance or for subsequent years of service, if any, and that sufficient funds have been appropriated in accordance with applicable law. The Customer will pay all invoices as received from Motorola and any changes in scope will be subject to the change order process as described in this Agreement. At the time of execution of this Agreement, the Customer will provide all necessary reference information to include on invoices for payment in accordance with this Agreement.

6.2. CONTRACT PRICE. The Contract Price in U.S. dollars is $548,371.40. The Contract Price will be paid via the disbursement of the financing proceeds pursuant to the Equipment Lease-Purchase Agreement executed between the parties. If applicable, a pricing summary is included with the Payment schedule.

Motorola has priced the Services, Software, and Equipment as an integrated System. A change in Software or Equipment quantities, or Services, may affect the overall Contract Price, including discounts if applicable.

Fees for professional, SUA, and/or subscription services which are not included in the Contract Price may be listed and invoiced according to the pricing pages of the proposal, Exhibit B, or the applicable Addendum.

Invoices will be mailed or emailed to Customer pursuant to Section 6.4, Invoicing and Shipping Addresses. 1006
Lease Communication System and Services Agreement v.2023.05.24 7 For Customer’s reference, the Federal Tax Identification Number for Motorola Solutions, Inc. is 36- 1115800..

6.3. FREIGHT, TITLE, AND RISK OF LOSS. Motorola will pre-pay and add all freight charges to the invoices. Unless otherwise stated in the Equipment Lease-Purchase Agreement, title and risk of loss to the Equipment will pass to Customer upon shipment. Title to Software will not pass to Customer at any time. Motorola will pack and ship all Equipment in accordance with good commercial practices.

6.4. INVOICING AND SHIPPING ADDRESSES. Invoices will be sent to the Customer at the following address:

Name: _____Derek Thesier
Address:_____99 E Ramsey St Banning CA, 92220_
Phone:______951-849-1433____________________
E-INVOICE. To receive invoices via email:

Customer Account Number:_______1000190306_____
Customer Accounts Payable Email:______________________________________________________ Customer CC(optional) Email: __________________________________________________________ The address which is the ultimate destination where the Equipment will be delivered to Customer is:

Name:_____Derek Thesier___________
Address:___125 E Ramsey St Banning CA, 92220_________
The Equipment will be shipped to the Customer at the following address (insert if this information is known):

Name:______Sgt._Derek Thesier______________
Address:____125 E Ramsey st Banning CA, 92220________
Phone:______951-849-1433__________________
Customer may change this information by giving written notice to Motorola.

Section 7 SITES AND SITE CONDITIONS

7.1. ACCESS TO SITES. In addition to its responsibilities described elsewhere in this Agreement, Customer will provide a designated project manager; all necessary construction and building permits, zoning variances, licenses, and any other approvals that are necessary to develop or use the sites and mounting locations; and access to the worksites or vehicles identified in the Technical and Implementation Documents as reasonably requested by Motorola so that it may perform its duties in accordance with the Performance Schedule and Statement of Work. If the Statement of Work so indicates, Motorola may assist Customer in the local building permit process.

7.2. SITE CONDITIONS. Customer will ensure that all work sites it provides will be safe, secure, and in compliance with all applicable industry and OSHA standards. To the extent applicable and unless the Statement of Work states to the contrary, Customer will ensure that these work sites have adequate:
physical space; air conditioning and other environmental conditions; adequate and appropriate electrical power outlets, distribution, equipment and connections; and adequate telephone or other communication lines (including modem access and adequate interfacing networking capabilities), all for the installation, use and maintenance of the System. Before installing the Equipment or Software at a work site, Motorola may inspect the work site and advise Customer of any apparent deficiencies or non-conformities with the requirements of this Section. This Agreement is predicated upon normal soil conditions as defined by the version of E.I.A. standard RS-222 in effect on the Effective Date.

7.3. SITE ISSUES. If a Party determines that the sites identified in the Technical and Implementation Documents are no longer available or desired, or if subsurface, structural, adverse environmental or latent conditions at any site differ from those indicated in the Technical and Implementation Documents, the Parties will promptly investigate the conditions and will select replacement sites or adjust the installation 1007
Lease Communication System and Services Agreement v.2023.05.24 8 plans and specifications as necessary. If change in sites or adjustment to the installation plans and specifications causes a change in the cost or time to perform, the Parties will equitably amend the Contract Price, Performance Schedule, or both, by a change order.

Section 8 TRAINING
Any training to be provided by Motorola to Customer will be described in the applicable Statement of Work.

Customer will notify Motorola immediately if a date change for a scheduled training program is required. If Motorola incurs additional costs because Customer reschedules a training program less than thirty (30) days before its scheduled start date, Motorola may recover these additional costs.

Section 9 SYSTEM ACCEPTANCE

9.1. COMMENCEMENT OF ACCEPTANCE TESTING. Motorola will provide to Customer at least ten (10) days notice before the Acceptance Tests commence. System testing will occur only in accordance with the Acceptance Test Plan.

9.2. SYSTEM ACCEPTANCE. System Acceptance will occur upon successful completion of the Acceptance Tests. Upon System Acceptance, the Parties will memorialize this event by promptly executing a System Acceptance Certificate. If the Acceptance Test Plan includes separate tests for individual Subsystems or phases of the System, acceptance of the individual Subsystem or phase will occur upon the successful completion of the Acceptance Tests for the Subsystem or phase, and the Parties will promptly execute an acceptance certificate for the Subsystem or phase. If Customer believes the System has failed the completed Acceptance Tests, Customer will provide to Motorola a written notice that includes the specific details of the failure. If Customer does not provide to Motorola a failure notice within thirty (30) days after completion of the Acceptance Tests, System Acceptance will be deemed to have occurred as of the completion of the Acceptance Tests. Minor omissions or variances in the System that do not materially impair the operation of the System as a whole will not postpone System Acceptance or Subsystem acceptance, but will be corrected according to a mutually agreed schedule.

9.3. BENEFICIAL USE. Customer acknowledges that Motorola’s ability to perform its implementation and testing responsibilities may be impeded if Customer begins using the System before System Acceptance. Therefore, Customer will not commence Beneficial Use before System Acceptance without Motorola’s prior written authorization, which will not be unreasonably withheld. Motorola is not responsible for System performance deficiencies that occur during unauthorized Beneficial Use. Upon commencement of Beneficial Use, Customer assumes responsibility for the use and operation of the System.

9.4. FINAL PROJECT ACCEPTANCE. Final Project Acceptance will occur after System Acceptance when all deliverables and other work have been completed. When Final Project Acceptance occurs, the parties will promptly memorialize this final event by so indicating on the System Acceptance Certificate (Exhibit D) and the Equipment Lease Purchase Agreement Delivery and Acceptance Certificate (Exhibit E).

Section 10 REPRESENTATIONS AND WARRANTIES

10.1. SYSTEM FUNCTIONALITY. Motorola represents that the System will perform in accordance with the Specifications in all material respects. Upon System Acceptance or Beneficial Use, whichever occurs first, this System functionality representation is fulfilled. Motorola is not responsible for System performance deficiencies that are caused by ancillary equipment not furnished by Motorola which is attached to or used in connection with the System or for reasons or parties beyond Motorola’s control, such as natural causes; the construction of a building that adversely affects the microwave path reliability or radio frequency (RF) coverage; the addition of frequencies at System sites that cause RF interference or intermodulation; or Customer changes to load usage or configuration outside the Specifications.

10.2. EQUIPMENT WARRANTY. During the Warranty Period, Motorola warrants that the Equipment under normal use and service will be free from material defects in materials and workmanship. If System 1008
Lease Communication System and Services Agreement v.2023.05.24 9 Acceptance is delayed beyond six (6) months after shipment of the Equipment by events or causes beyond Motorola’s control, this warranty expires eighteen (18) months after the shipment of the Equipment.

10.3. SOFTWARE WARRANTY. Except as described in the SwSP and unless otherwise stated in the Software License Agreement, during the Warranty Period, Motorola warrants the Software in accordance with the warranty terms set forth in the Software License Agreement and the provisions of this Section that are applicable to the Software. If System Acceptance is delayed beyond six (6) months after shipment of the Motorola Software by events or causes beyond Motorola’s control, this warranty expires eighteen (18) months after the shipment of the Motorola Software. Nothing in this Warranty provision is intended to conflict or modify the Software Support Policy. In the event of an ambiguity or conflict between the Software Warranty and Software Support Policy, the Software Support Policy governs.

10.4. EXCLUSIONS TO EQUIPMENT AND SOFTWARE WARRANTIES. These warranties do not apply to: (i) defects or damage resulting from: use of the Equipment or Software in other than its normal, customary, and authorized manner; accident, liquids, neglect, or acts of God; testing, maintenance, disassembly, repair, installation, alteration, modification, or adjustment not provided or authorized in writing by Motorola; Customer’s failure to comply with all applicable industry and OSHA standards; (ii) breakage of or damage to antennas unless caused directly by defects in material or workmanship; (iii) Equipment that has had the serial number removed or made illegible; (iv) batteries (because they carry their own separate limited warranty) or consumables; (v) freight costs to ship Equipment to the repair depot; (vi) scratches or other cosmetic damage to Equipment surfaces that does not affect the operation of the Equipment; and (vii) normal or customary wear and tear.

10.5. SERVICE WARRANTY. During the Warranty Period, Motorola warrants that the Services will be provided in a good and workmanlike manner and will conform in all material respects to the applicable Statement of Work. Services will be free of defects in materials and workmanship for a period of ninety (90) days from the date the performance of the Services are completed. Customer acknowledges that the Deliverables may contain recommendations, suggestions or advice from Motorola to Customer (collectively, “recommendations”). Motorola makes no warranties concerning those recommendations, and Customer alone accepts responsibility for choosing whether and how to implement the recommendations and the results to be realized from implementing them.

10.6. WARRANTY CLAIMS. To assert a warranty claim, Customer must notify Motorola in writing of the claim before the expiration of the Warranty Period. Upon receipt of this notice, Motorola will investigate the warranty claim. If this investigation confirms a valid Equipment or Software warranty claim, Motorola will (at its option and at no additional charge to Customer) repair the defective Equipment or Motorola Software, replace it with the same or equivalent product, or refund the price of the defective Equipment or Motorola Software. These actions will be the full extent of Motorola’s liability for the warranty claim. In the event of a valid Services warranty claim, Customer’s sole remedy is to require Motorola to re-perform the nonconforming Service or to refund, on a pro-rata basis, the fees paid for the non-conforming Service. If this investigation indicates the warranty claim is not valid, then Motorola may invoice Customer for responding to the claim on a time and materials basis using Motorola’s then current labor rates. Repaired or replaced product is warranted for the balance of the original applicable warranty period. All replaced products or parts will become the property of Motorola.

10.7. ORIGINAL END USER IS COVERED. These express limited warranties are extended by Motorola to the original user purchasing the System or Services for commercial, industrial, or governmental use only, and are not assignable or transferable.

10.8. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE

WARRANTIES FOR THE EQUIPMENT AND MOTOROLA SOFTWARE PROVIDED UNDER THIS AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. MOTOROLA DISCLAIMS ALL

OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED

WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
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Lease Communication System and Services Agreement v.2023.05.24 10 Section 11 DELAYS

11.1. FORCE MAJEURE. Neither Party will be liable for its non-performance or delayed performance if caused by a Force Majeure. A Party that becomes aware of a Force Majeure that will significantly delay performance will notify the other Party promptly (but in no event later than fifteen days) after it discovers the Force Majeure. If a Force Majeure occurs, the Parties will execute a change order to extend the Performance Schedule or applicable Addenda for a time period that is reasonable under the circumstances.

11.2. PERFORMANCE SCHEDULE DELAYS CAUSED BY CUSTOMER. If Customer (including its other contractors) delays the Performance Schedule, it will make the promised payments according to the Payment schedule as if no delay occurred; and the Parties will execute a change order to extend the Performance Schedule and, if requested, compensate Motorola for all reasonable charges incurred because of the delay. Delay charges may include costs incurred by Motorola or its subcontractors for additional freight, warehousing and handling of Equipment; extension of the warranties; travel; suspending and re-mobilizing the work; additional engineering, project management, and standby time calculated at then current rates; and preparing and implementing an alternative implementation plan.

Section 12 DISPUTES
The Parties will use the following procedure to address any dispute arising under this Agreement (a “Dispute”).

12.1. GOVERNING LAW. This Agreement will be governed by and construed in accordance with the laws of the State in which the System is installed.

12.2. NEGOTIATION. Either Party may initiate the Dispute resolution procedures by sending a notice of Dispute (“Notice of Dispute”). The Parties will attempt to resolve the Dispute promptly through good faith negotiations including 1) timely escalation of the Dispute to executives who have authority to settle the Dispute and who are at a higher level of management than the persons with direct responsibility for the matter and 2) direct communication between the executives. If the Dispute has not been resolved within ten (10) days from the Notice of Dispute, the Parties will proceed to mediation.

12.3. MEDIATION. The Parties will choose an independent mediator within thirty (30) days of a notice to mediate from either Party (“Notice of Mediation”). Neither Party may unreasonably withhold consent to the selection of a mediator. If the Parties are unable to agree upon a mediator, either Party may request that American Arbitration Association nominate a mediator. Each Party will bear its own costs of mediation, but the Parties will share the cost of the mediator equally. Each Party will participate in the mediation in good faith and will be represented at the mediation by a business executive with authority to settle the Dispute.

12.4. LITIGATION, VENUE and JURISDICTION. If a Dispute remains unresolved for sixty (60) days after receipt of the Notice of Mediation, either Party may then submit the Dispute to a court of competent jurisdiction in the state in which the System is installed. Each Party irrevocably agrees to submit to the exclusive jurisdiction of the courts in such state over any claim or matter arising under or in connection with this Agreement.

12.5. CONFIDENTIALITY. All communications pursuant to subsections 12.2 and 12.3 will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence and any additional confidentiality protections provided by applicable law. The use of these Dispute resolution procedures will not be construed under the doctrines of laches, waiver or estoppel to affect adversely the rights of either Party.

Section 13 DEFAULT AND TERMINATION
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Lease Communication System and Services Agreement v.2023.05.24 11 13.1. DEFAULT BY A PARTY. If either Party fails to perform a material obligation under this Agreement, the other Party may consider the non-performing Party to be in default (unless a Force Majeure causes the failure) and may assert a default claim by giving the non-performing Party a written and detailed notice of default. Except for a default by Customer for failing to pay any amount when due under this Agreement which must be cured immediately, the defaulting Party will have thirty (30) days after receipt of the notice of default to either cure the default or, if the default is not curable within thirty (30) days, provide a written cure plan. The defaulting Party will begin implementing the cure plan immediately after receipt of notice by the other Party that it approves the plan. If Customer is the defaulting Party, Motorola may stop work on the project until it approves the Customer’s cure plan.

13.2. FAILURE TO CURE. If a defaulting Party fails to cure the default as provided above in Section

13.1, unless otherwise agreed in writing, the non-defaulting Party may terminate any unfulfilled portion of this Agreement. In the event of termination for default, the defaulting Party will promptly return to the nondefaulting Party any of its Confidential Information. If Customer is the non-defaulting Party, terminates this Agreement as permitted by this Section, and completes the System through a third Party, Customer may as its exclusive remedy recover from Motorola reasonable costs incurred to complete the System to a capability not exceeding that specified in this Agreement less the unpaid portion of the Contract Price.

Customer will mitigate damages and provide Motorola with detailed invoices substantiating the charges. In the event Customer elects to terminate this Agreement for any reason other than default, Customer shall pay Motorola for the conforming Equipment and/or Software delivered and all services performed.

Section 14 INDEMNIFICATION

14.1. GENERAL INDEMNITY BY Motorola. Motorola will indemnify and hold Customer harmless from any and all liability, expense, judgment, suit, or cause of action arising from any third party claim or demand for personal injury, death, or direct damage to tangible property which may accrue against Customer to the extent it is caused by the negligence of Motorola, its subcontractors, or their employees or agents, while performing their duties under this Agreement, if Customer gives Motorola prompt, written notice of any thirdparty claim or suit. Customer will cooperate with Motorola in its defense or settlement of such claim or suit. This Section sets forth the full extent of Motorola’s general indemnification of Customer from liabilities that are in any way related to Motorola’s performance under this Agreement.

14.2. GENERAL INDEMNITY BY CUSTOMER. Customer will indemnify and hold Motorola harmless from any and all liability, expense, judgment, suit, or cause of action arising from any third party claim or demand for personal injury, death, or direct damage to tangible property which may accrue against Motorola to the extent it is caused by the negligence of Customer, its other contractors, or their employees or agents, while performing their duties under this Agreement, if Motorola gives Customer prompt, written notice of any thirdparty claim or suit. Motorola will cooperate with Customer in its defense or settlement of such claim or suit. This Section sets forth the full extent of Customer’s general indemnification of Motorola from liabilities that are in any way related to Customer’s performance under this Agreement.

14.3. PATENT AND COPYRIGHT INFRINGEMENT.

14.3.1. Motorola will defend at its expense any suit brought against Customer to the extent it is based on a third-party claim alleging that the Equipment manufactured by Motorola or the Motorola Software (“Motorola Product”) directly infringes a United States patent or copyright (“Infringement Claim”). Motorola’s duties to defend and indemnify are conditioned upon: Customer promptly notifying Motorola in writing of the Infringement Claim; Motorola having sole control of the defense of the suit and all negotiations for its settlement or compromise; and Customer providing to Motorola cooperation and, if requested by Motorola, reasonable assistance in the defense of the Infringement Claim. In addition to Motorola’s obligation to defend, and subject to the same conditions, Motorola will pay all damages finally awarded against Customer by a court of competent jurisdiction for an Infringement Claim or agreed to, in writing, by Motorola in settlement of an Infringement Claim.

14.3.2 If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, Motorola may at its option 1011
Lease Communication System and Services Agreement v.2023.05.24 12 and expense: (a) procure for Customer the right to continue using the Motorola Product; (b) replace or modify the Motorola Product so that it becomes non-infringing while providing functionally equivalent performance; or (c) accept the return of the Motorola Product and grant Customer a credit for the Motorola Product, less a reasonable charge for depreciation. The depreciation amount will be calculated based upon generally accepted accounting standards.

14.3.3 Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon: (a) the combination of the Motorola Product with any software, apparatus or device not furnished by Motorola; (b) the use of ancillary equipment or software not furnished by Motorola and that is attached to or used in connection with the Motorola Product; (c) Motorola Product designed or manufactured in accordance with Customer’s designs, specifications, guidelines or instructions, if the alleged infringement would not have occurred without such designs, specifications, guidelines or instructions; (d) a modification of the Motorola Product by a party other than Motorola; (e) use of the Motorola Product in a manner for which the Motorola Product was not designed or that is inconsistent with the terms of this Agreement; or (f) the failure by Customer to install an enhancement release to the Motorola Software that is intended to correct the claimed infringement. In no event will Motorola’s liability resulting from its indemnity obligation to Customer extend in any way to royalties payable on a per use basis or the Customer’s revenues, or any royalty basis other than a reasonable royalty based upon revenue derived by Motorola from Customer from sales or license of the infringing Motorola Product.

14.3.4. This Section 14 provides Customer’s sole and exclusive remedies and Motorola’s entire liability in the event of an Infringement Claim. Customer has no right to recover and Motorola has no obligation to provide any other or further remedies, whether under another provision of this Agreement or any other legal theory or principle, in connection with an Infringement Claim. In addition, the rights and remedies provided in this Section 14 are subject to and limited by the restrictions set forth in Section 15.

Section 15 LIMITATION OF LIABILITY
Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty, negligence, strict liability in tort, indemnification, or otherwise, will be limited to the direct damages recoverable under law, but not to exceed the price of the Equipment, Software, or implementation and other one-time Services with respect to which losses or damages are claimed. With respect to all subscription or other ongoing Services and unless as otherwise provided under the applicable Addenda, Motorola’s total liability will be limited to the direct damages recoverable under law, but not to exceed the price of twelve (12) months of Services preceding the incident giving rise to the claim. ALTHOUGH THE PARTIES

ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT

MOTOROLA WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS, INCONVENIENCE, LOSS OF USE, LOSS TIME, DATA, GOODWILL, REVENUES, PROFITS OR SAVINGS; OR OTHER SPECIAL,

INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING

FROM THIS AGREEMENT, THE SALE OR USE OF THE EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. This limitation of liability provision survives the expiration or termination of the Agreement and applies notwithstanding any contrary provision. No action for contract breach or otherwise relating to the transactions contemplated by this Agreement may be brought more than one (1) year after the accrual of the cause of action, except for money due upon an open account.

Section 16 CONFIDENTIALITY AND PROPRIETARY RIGHTS

16.1. CONFIDENTIAL INFORMATION.

16.1.1. Each party is a disclosing party (“Discloser”) and a receiving party (“Recipient”) under this Agreement. All Deliverables will be deemed to be Motorola’s Confidential Information. During the term of this Agreement and for a period of three (3) years from the expiration or termination of this Agreement, Recipient will (i) not disclose Confidential Information to any third party; (ii) restrict disclosure of Confidential Information to only those employees (including, but not limited to, employees of any wholly owned 1012
Lease Communication System and Services Agreement v.2023.05.24 13 subsidiary, a parent company, any other wholly owned subsidiaries of the same parent company), agents or consultants who must be directly involved with the Confidential Information for the purpose and who are bound by confidentiality terms substantially similar to those in this Agreement; (iii) not copy, reproduce, reverse engineer, decompile, or disassemble any Confidential Information; (iv) use the same degree of care as for its own information of like importance, but at least use reasonable care, in safeguarding against disclosure of Confidential Information; (v) promptly notify Discloser upon discovery of any unauthorized use or disclosure of the Confidential Information and take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or other breach of this Agreement; and (vi) only use the Confidential Information as needed to fulfill this Agreement. Notwithstanding the foregoing, Motorola acknowledges that the Customer is subject to the California Records Act.

16.1.2. Recipient is not obligated to maintain as confidential, Confidential Information that Recipient can demonstrate by documentation (i) is now available or becomes available to the public without breach of this agreement; (ii) is explicitly approved for release by written authorization of Discloser; (iii) is lawfully obtained from a third party or parties without a duty of confidentiality; (iv) is known to the Recipient prior to such disclosure; or (v) is independently developed by Recipient without the use of any of Discloser’s Confidential Information or any breach of this Agreement.

16.1.3. All Confidential Information remains the property of the Discloser and will not be copied or reproduced without the express written permission of the Discloser, except for copies that are absolutely necessary in order to fulfill this Agreement. Within ten (10) days of receipt of Discloser’s written request, Recipient will return all Confidential Information to Discloser along with all copies and portions thereof, or certify in writing that all such Confidential Information has been destroyed. However, Recipient may retain one (1) archival copy of the Confidential Information that it may use only in case of a dispute concerning this Agreement. No license, express or implied, in the Confidential Information is granted other than to use the Confidential Information in the manner and to the extent authorized by this Agreement. The Discloser warrants that it is authorized to disclose any Confidential Information it discloses pursuant to this Agreement.

16.2. PRESERVATION OF MOTOROLA’S PROPRIETARY RIGHTS. Motorola, the third party manufacturer of any Equipment, and the copyright owner of any Non-Motorola Software own and retain all of their respective Proprietary Rights in the Equipment and Software, and nothing in this Agreement is intended to restrict their Proprietary Rights. All intellectual property developed, originated, or prepared by Motorola in connection with providing to Customer the Equipment, Software, or related services remain vested exclusively in Motorola, and this Agreement does not grant to Customer any shared development rights of intellectual property. Except as explicitly provided in the Software License Agreement, Motorola does not grant to Customer, either directly or by implication, estoppel, or otherwise, any right, title or interest in Motorola’s Proprietary Rights. Customer will not modify, disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code or create derivative works from, adapt, translate, merge with other software, reproduce, distribute, sublicense, sell or export the Software, or permit or encourage any third party to do so. The preceding sentence does not apply to Open Source Software which is governed by the standard license of the copyright owner.

16.3 VOLUNTARY DISCLOSURE. Except as required to fulfill its obligations under this Agreement, Motorola will have no obligation to provide Customer with access to its Confidential Information and/or proprietary information. Under no circumstances will Motorola be required to provide any data related to cost and pricing.

16.4 DATA AND FEEDBACK.

16.4.1 To the extent permitted by law, Customer owns all right, title and interest in System Data created solely by it or its agents (hereafter, “Customer Data”), and grants to Motorola the right to use, host, cache, store, reproduce, copy, modify, combine, analyze, create derivatives from, communicate, transmit, publish, display, and distribute such Customer Data.
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Lease Communication System and Services Agreement v.2023.05.24 14 16.4.2 Motorola owns all right, title and interest in data resulting from System Data that is or has been transformed, altered, processed, aggregated, correlated or operated on (hereafter, “Derivative Data”).

16.4.3 Any Feedback given by Customer is and will be entirely voluntary and, even if designated as confidential, will not create any confidentiality obligation for Motorola. Motorola will be free to use, reproduce, license or otherwise distribute and exploit the Feedback without any obligation to Customer.

Customer acknowledges that Motorola’s receipt of the Feedback does not imply or create recognition by Motorola of either the novelty or originality of any idea. The parties further agree that all fixes, modifications and improvements made to Motorola products or services conceived of or made by Motorola that are based, either in whole or in part, on the Feedback are the exclusive property of Motorola and all right, title and interest in and to such fixes, modifications or improvements to the Motorola product or service will vest solely in Motorola.

Section 17 GENERAL

17.1. TAXES. The Contract Price does not include any excise, sales, lease, use, property, or other taxes, assessments or duties, all of which will be paid by Customer except as exempt by law. If Motorola is required to pay any of these taxes, Motorola will send an invoice to Customer and Customer will pay to Motorola the amount of the taxes (including any interest and penalties) within thirty (30) days after the date of the invoice. Customer will be solely responsible for reporting the Equipment for personal property tax purposes, and Motorola will be solely responsible for reporting taxes on its income or net worth.

17.2. ASSIGNABILITY AND SUBCONTRACTING. Except as provided herein, neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, which consent will not be unreasonably withheld. Any attempted assignment, delegation, or transfer without the necessary consent will be void. Notwithstanding the foregoing, Motorola may assign this Agreement to any of its affiliates or its right to receive payment without the prior consent of Customer. In addition, in the event Motorola separates one or more of its businesses (each a “Separated Business”), whether by way of a sale, establishment of a joint venture, spin-off or otherwise (each a “Separation Event”), Motorola may, without the prior written consent of the other Party and at no additional cost to Motorola, assign this Agreement such that it will continue to benefit the Separated Business and its affiliates (and Motorola and its affiliates, to the extent applicable) following the Separation Event. Motorola may subcontract any of the work, but subcontracting will not relieve Motorola of its duties under this Agreement.

17.3. WAIVER. Failure or delay by either Party to exercise a right or power under this Agreement will not be a waiver of the right or power. For a waiver of a right or power to be effective, it must be in a writing signed by the waiving Party. An effective waiver of a right or power will not be construed as either a future or continuing waiver of that same right or power, or the waiver of any other right or power.

17.4. SEVERABILITY. If a court of competent jurisdiction renders any part of this Agreement invalid or unenforceable, that part will be severed and the remainder of this Agreement will continue in full force and effect.

17.5. INDEPENDENT CONTRACTORS. Each Party will perform its duties under this Agreement as an independent contractor. The Parties and their personnel will not be considered to be employees or agents of the other Party. Nothing in this Agreement will be interpreted as granting either Party the right or authority to make commitments of any kind for the other. This Agreement will not constitute, create, or be interpreted as a joint venture, partnership or formal business organization of any kind.

17.6. HEADINGS AND SECTION REFERENCES. The section headings in this Agreement are inserted 1014
Lease Communication System and Services Agreement v.2023.05.24 15 only for convenience and are not to be construed as part of this Agreement or as a limitation of the scope of the particular section to which the heading refers. This Agreement will be fairly interpreted in accordance with its terms and conditions and not for or against either Party.

17.7. NOTICES. Notices required under this Agreement to be given by one Party to the other must be in writing and either personally delivered or sent to the address provided by the other Party by certified mail, return receipt requested and postage prepaid (or by a recognized courier service, such as Federal Express, UPS, or DHL), or by facsimile with correct answerback received, and will be effective upon receipt.

17.8. COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with all applicable federal, state, and local laws, regulations and rules concerning the performance of this Agreement or use of the System.

Customer will obtain and comply with all Federal Communications Commission (“FCC”) licenses and authorizations required for the installation, operation and use of the System before the scheduled installation of the Equipment. Although Motorola might assist Customer in the preparation of its FCC license applications, neither Motorola nor any of its employees is an agent or representative of Customer in FCC or other matters.

17.9 FUTURE REGULATORY REQUIREMENTS. The Parties acknowledge and agree that this is an evolving technological area and therefore, laws and regulations regarding Services and use of Solution may change. Changes to existing Services or the Solution required to achieve regulatory compliance may be available for an additional fee. Any required changes may also impact the price for Services.

17.10. AUTHORITY TO EXECUTE AGREEMENT. Each Party represents that it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties under this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in accordance with its terms; and the execution, delivery, and performance of this Agreement does not violate any bylaw, charter, regulation, law or any other governing authority of the Party.

17.11. ADMINISTRATOR LEVEL ACCOUNT ACCESS. If applicable to the type of System purchased by Customer, Motorola will provide Customer with Administrative User Credentials. Customer agrees to only grant access to the Administrative User Credentials to those personnel with the training and experience to correctly use them. Customer is responsible for protecting Administrative User Credentials from disclosure and maintaining Credential validity by, among other things, updating passwords when required. Customer may be asked to provide valid Administrative User Credentials when in contact with Motorola System support personnel. Customer understands that changes made as the Administrative User can significantly impact the performance of the System. Customer agrees that it will be solely responsible for any negative impact on the System or its users by any such changes. System issues occurring as a result of changes made using the Administrative User Credentials may impact Motorola’s ability to perform Services or other obligations under the Agreement. In such cases, a revision to the appropriate provisions of the Agreement, including the Statement of Work, may be necessary. To the extent Motorola provides assistance to correct any issues caused by or arising out of the use of or failure to maintain Administrative User Credentials, Motorola will be entitled to bill Customer and Customer will pay Motorola on a time and materials basis for resolving the issue.

17.12. SURVIVAL OF TERMS. The following provisions will survive the expiration or termination of this Agreement for any reason: Section 3.5 (Motorola Software); Section 3.6 (Non-Motorola Software); if any payment obligations exist, Sections 6.2 and 6.3 (Contract Price and Invoicing and Payment); Subsection 1015
Lease Communication System and Services Agreement v.2023.05.24 16 10.8 (Disclaimer of Implied Warranties); Section 12 (Disputes); Section 15 (Limitation of Liability); and Section 16 (Confidentiality and Proprietary Rights); and all of the General provisions in Section 17.

17.13. ENTIRE AGREEMENT. This Agreement, including all Exhibits, constitutes the entire agreement of the Parties regarding the subject matter of the Agreement and supersedes all previous agreements, proposals, and understandings, whether written or oral, relating to this subject matter. This Agreement may be executed in multiple counterparts, and shall have the same legal force and effect as if the Parties had executed it as a single document. The Parties may sign in writing, or by electronic signature, including by email. An electronic signature, or a facsimile copy or computer image, such as a PDF or tiff image, of a signature, shall be treated as and shall have the same effect as an original signature. In addition, an electronic signature, a true and correct facsimile copy or computer image of this Agreement shall be treated as and shall have the same effect as an original signed copy of this document. This Agreement may be amended or modified only by a written instrument signed by authorized representatives of both Parties.

The preprinted terms and conditions found on any Customer purchase or purchase order, acknowledgment or other form will not be considered an amendment or modification of this Agreement, even if a representative of each Party signs that document.

The Parties hereby enter into this Agreement as of the Effective Date.

Motorola Solutions, Inc. Customer

By: ______________________________ By: ______________________________ Name: _____Brian Arriaga__________ Name: ____________________________ Title: _____Account Executive_________ Title: _____________________________ Date: __________2/2/2024______ Date: _____________________________ 1016
Lease Communication System and Services Agreement v.2023.05.24 17 Exhibit A

MOTOROLA SOFTWARE LICENSE AGREEMENT
This Exhibit A Motorola Software License Agreement ("Agreement") is between Motorola Solutions, Inc., (“Motorola"), and ____Banning Police Department_______ (“Licensee”).

For good and valuable consideration, the parties agree as follows:

Section 1 DEFINITIONS

1.1 “Designated Products” means products provided by Motorola to Licensee with which or for which the Software and Documentation is licensed for use.

1.2 “Documentation” means product and software documentation that specifies technical and performance features and capabilities, and the user, operation and training manuals for the Software (including all physical or electronic media upon which such information is provided).

1.3 “Open Source Software” means software with either freely obtainable source code, license for modification, or permission for free distribution.

1.4 “Open Source Software License” means the terms or conditions under which the Open Source Software is licensed.

1.5 “Primary Agreement” means the agreement to which this exhibit is attached.

1.6 “Security Vulnerability” means a flaw or weakness in system security procedures, design, implementation, or internal controls that could be exercised (accidentally triggered or intentionally exploited) and result in a security breach such that data is compromised, manipulated or stolen or the system damaged.

1.7 “Software” (i) means proprietary software in object code format, and adaptations, translations, decompilations, disassemblies, emulations, or derivative works of such software; (ii) means any modifications, enhancements, new versions and new releases of the software provided by Motorola; and (iii) may contain one or more items of software owned by a third party supplier. The term "Software" does not include any third party software provided under separate license or third party software not licensable under the terms of this Agreement.

Section 2 SCOPE
Motorola and Licensee enter into this Agreement in connection with Motorola's delivery of certain proprietary software or products containing embedded or pre-loaded proprietary software, or both. This Agreement contains the terms and conditions of the license Motorola is providing to Licensee, and Licensee’s use of the proprietary software and affiliated documentation.

Section 3 GRANT OF LICENSE

3.1. Subject to the provisions of this Agreement and the payment of applicable license fees, Motorola grants to Licensee a personal, limited, non-transferable (except as permitted in Section 7) and nonexclusive license under Motorola’s copyrights and Confidential Information (as defined in the Primary Agreement) embodied in the Software to use the Software, in object code form, and the Documentation solely in connection with Licensee's use of the Designated Products. This Agreement does not grant any rights to source code.
1017
Lease Communication System and Services Agreement v.2023.05.24 18 3.2. If the Software licensed under this Agreement contains or is derived from Open Source Software, the terms and conditions governing the use of such Open Source Software are in the Open Source Software Licenses of the copyright owner and not this Agreement. If there is a conflict between the terms and conditions of this Agreement and the terms and conditions of the Open Source Software Licenses governing Licensee’s use of the Open Source Software, the terms and conditions of the license grant of the applicable Open Source Software Licenses will take precedence over the license grants in this Agreement. If requested by Licensee, Motorola will use commercially reasonable efforts to: (i) determine whether any Open Source Software is provided under this Agreement; and (ii) identify the Open Source Software (or specify where that license may be found).

3.3 TO THE EXTENT, IF ANY, THAT THERE IS A SEPARATE LICENSE AGREEMENT PACKAGED

WITH, OR PROVIDED ELECTRONICALLY WITH, A PARTICULAR PRODUCT THAT BECOMES

EFFECTIVE ON AN ACT OF ACCEPTANCE BY THE END USER, THEN THAT AGREEMENT

SUPERSEDES THE SOFTWARE LICENSE AGREEMENT AS TO THE END USER OF EACH SUCH PRODUCT.

Section 4 LIMITATIONS ON USE

4.1. Licensee may use the Software only for Licensee's internal business purposes and only in accordance with the Documentation. Any other use of the Software is strictly prohibited. Without limiting the general nature of these restrictions, Licensee will not make the Software available for use by third parties on a "time sharing," "application service provider," or "service bureau" basis or for any other similar commercial rental or sharing arrangement.

4.2. Licensee will not, and will not allow or enable any third party to: (i) reverse engineer, disassemble, peel components, decompile, reprogram or otherwise reduce the Software or any portion to a human perceptible form or otherwise attempt to recreate the source code; (ii) modify, adapt, create derivative works of, or merge the Software; (iii) copy, reproduce, distribute, lend, or lease the Software or Documentation to any third party, grant any sublicense or other rights in the Software or Documentation to any third party, or take any action that would cause the Software or Documentation to be placed in the public domain; (iv) remove, or in any way alter or obscure, any copyright notice or other notice of Motorola's proprietary rights; (v) provide, copy, transmit, disclose, divulge or make the Software or Documentation available to, or permit the use of the Software by any third party or on any machine except as expressly authorized by this Agreement; or (vi) use, or permit the use of, the Software in a manner that would result in the production of a copy of the Software solely by activating a machine containing the Software. Licensee may make one copy of Software to be used solely for archival, back-up, or disaster recovery purposes; provided that Licensee may not operate that copy of the Software at the same time as the original Software is being operated. Licensee may make as many copies of the Documentation as it may reasonably require for the internal use of the Software.

4.3. Unless otherwise authorized by Motorola in writing, Licensee will not, and will not enable or allow any third party to: (i) install a licensed copy of the Software on more than one unit of a Designated Product; or (ii) copy onto or transfer Software installed in one unit of a Designated Product onto one other device.

Licensee may temporarily transfer Software installed on a Designated Product to another device if the Designated Product is inoperable or malfunctioning, if Licensee provides written notice to Motorola of the temporary transfer and identifies the device on which the Software is transferred. Temporary transfer of the Software to another device must be discontinued when the original Designated Product is returned to operation and the Software must be removed from the other device. Licensee must provide prompt written notice to Motorola at the time temporary transfer is discontinued.

4.4 Licensee will maintain, during the term of this Agreement and for a period of two years thereafter, accurate records relating to this license grant to verify compliance with this Agreement. Motorola or an independent third party (“Auditor”) may inspect Licensee’s premises, books and records, upon reasonable prior notice to Licensee, during Licensee’s normal business hours and subject to Licensee's facility and 1018
Lease Communication System and Services Agreement v.2023.05.24 19 security regulations. Motorola is responsible for the payment of all expenses and costs of the Auditor. Any information obtained by Motorola and the Auditor will be kept in strict confidence by Motorola and the Auditor and used solely for the purpose of verifying Licensee's compliance with the terms of this Agreement.

Section 5 OWNERSHIP AND TITLE
Motorola, its licensors, and its suppliers retain all of their proprietary rights in any form in and to the Software and Documentation, including, but not limited to, all rights in patents, patent applications, inventions, copyrights, trademarks, trade secrets, trade names, and other proprietary rights in or relating to the Software and Documentation (including any corrections, bug fixes, enhancements, updates, modifications, adaptations, translations, de-compilations, disassemblies, emulations to or derivative works from the Software or Documentation, whether made by Motorola or another party, or any improvements that result from Motorola’s processes or, provision of information services). No rights are granted to Licensee under this Agreement by implication, estoppel or otherwise, except for those rights which are expressly granted to Licensee in this Agreement. All intellectual property developed, originated, or prepared by Motorola in connection with providing the Software, Designated Products, Documentation or related services, remains vested exclusively in Motorola, and Licensee will not have any shared development or other intellectual property rights.

Section 6 LIMITED WARRANTY; DISCLAIMER OF WARRANTY

6.1. Unless otherwise stated in the Primary Agreement, the commencement date and the term of the Software warranty will be a period of ninety (90) days from Motorola's shipment of the Software (the "Warranty Period"). If Licensee is not in breach of any of its obligations under this Agreement, Motorola warrants that the unmodified Software, when used properly and in accordance with the Documentation and this Agreement, will be free from a reproducible defect that eliminates the functionality or successful operation of a feature critical to the primary functionality or successful operation of the Software. Whether a defect occurs will be determined by Motorola solely with reference to the Documentation. Motorola does not warrant that Licensee’s use of the Software or the Designated Products will be uninterrupted, errorfree, completely free of Security Vulnerabilities, or that the Software or the Designated Products will meet Licensee’s particular requirements. Motorola makes no representations or warranties with respect to any third party software included in the Software. Notwithstanding, any warranty provided by a copyright owner in its standard license terms will flow through to Licensee for third party software provided by Motorola.

6.2 Motorola’s sole obligation to Licensee and Licensee’s exclusive remedy under this warranty is to use reasonable efforts to remedy any material Software defect covered by this warranty. These efforts will involve either replacing the media or attempting to correct significant, demonstrable program or documentation errors or Security Vulnerabilities. If Motorola cannot correct the defect within a reasonable time, then at Motorola’s option, Motorola will replace the defective Software with functionally-equivalent Software, license to Licensee substitute Software which will accomplish the same objective, or terminate the license and refund the Licensee’s paid license fee.

6.3. Warranty claims are described in the Primary Agreement.

6.4. The express warranties set forth in this Section 6 are in lieu of, and Motorola disclaims, any and all other warranties (express or implied, oral or written) with respect to the Software or Documentation, including, without limitation, any and all implied warranties of condition, title, non-infringement, merchantability, or fitness for a particular purpose or use by Licensee (whether or not Motorola knows, has reason to know, has been advised, or is otherwise aware of any such purpose or use), whether arising by law, by reason of custom or usage of trade, or by course of dealing. In addition, Motorola disclaims any warranty to any person other than Licensee with respect to the Software or Documentation.

Section 7 TRANSFERS
Licensee will not transfer the Software or Documentation to any third party without Motorola's prior written 1019
Lease Communication System and Services Agreement v.2023.05.24 20 consent. Motorola’s consent may be withheld at its discretion and may be conditioned upon transferee paying all applicable license fees and agreeing to be bound by this Agreement. If the Designated Products are Motorola's radio products and Licensee transfers ownership of the Motorola radio products to a third party, Licensee may assign its right to use the Software (other than CPS and Motorola's FLASHport® software) which is embedded in or furnished for use with the radio products and the related Documentation; provided that Licensee transfers all copies of the Software and Documentation to the transferee, and Licensee and the transferee sign a transfer form to be provided by Motorola upon request, obligating the transferee to be bound by this Agreement.

Section 8 TERM AND TERMINATION

8.1 Licensee’s right to use the Software and Documentation will begin when the Primary Agreement is signed by both parties and will continue for the life of the Designated Products with which or for which the Software and Documentation have been provided by Motorola, unless Licensee breaches this Agreement, in which case this Agreement and Licensee's right to use the Software and Documentation may be terminated immediately upon notice by Motorola.

8.2 Within thirty (30) days after termination of this Agreement, Licensee must certify in writing to Motorola that all copies of the Software have been removed or deleted from the Designated Products and that all copies of the Software and Documentation have been returned to Motorola or destroyed by Licensee and are no longer in use by Licensee.

8.3 Licensee acknowledges that Motorola made a considerable investment of resources in the development, marketing, and distribution of the Software and Documentation and that Licensee's breach of this Agreement will result in irreparable harm to Motorola for which monetary damages would be inadequate. If Licensee breaches this Agreement, Motorola may terminate this Agreement and be entitled to all available remedies at law or in equity (including immediate injunctive relief and repossession of all non-embedded Software and associated Documentation unless Licensee is a Federal agency of the United States Government).

Section 9 Commercial Computer Software

9.1 This Section 9 only applies to U.S. Government end users. The Software, Documentation and updates are commercial items as that term is defined at 48 C.F.R. Part 2.101, consisting of “commercial computer software” and “computer software documentation” as such terms are defined in 48 C.F.R. Part 252.227- 7014(a)(1) and 48 C.F.R. Part 252.227-7014(a)(5), and used in 48 C.F.R. Part 12.212 and 48 C.F.R. Part 227.7202, as applicable. Consistent with 48 C.F.R. Part 12.212, 48 C.F.R. Part 252.227-7015, 48 C.F.R.

Part 227.7202-1 through 227.7202-4, 48 C.F.R. Part 52.227-19, and other relevant sections of the Code of Federal Regulations, as applicable, the Software, Documentation and Updates are distributed and licensed to U.S. Government end users: (i) only as commercial items, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions contained herein.

9.2 If Licensee is licensing Software for end use by the United States Government or a United States Government agency, Licensee may transfer such Software license, but only if: (i) Licensee transfers all copies of such Software and Documentation to such United States Government entity or interim transferee, and (ii) Licensee has first obtained from the transferee (if applicable) and ultimate end user an enforceable end user license agreement containing restrictions substantially identical to the ones contained in this Agreement. Except as stated in the foregoing, Licensee and any transferee(s) authorized by this subsection

9.2 may not otherwise use or transfer or make available any Motorola software to any third party nor permit any party to do so.

Section 10 CONFIDENTIALITY
Licensee acknowledges that the Software and Documentation contain Motorola’s valuable proprietary and Confidential Information and are Motorola’s trade secrets, and that the provisions in the Primary Agreement 1020
Lease Communication System and Services Agreement v.2023.05.24 21 concerning Confidential Information apply.

Section 11 LIMITATION OF LIABILITY
The Limitation of Liability provision is described in the Primary Agreement.

Section 12 NOTICES
Notices are described in the Primary Agreement.

Section 13 GENERAL

13.1. COPYRIGHT NOTICES. The existence of a copyright notice on the Software will not be construed as an admission or presumption of publication of the Software or public disclosure of any trade secrets associated with the Software.

13.2. COMPLIANCE WITH LAWS. Licensee acknowledges that the Software is subject to the laws and regulations of the United States and Licensee will comply with all applicable laws and regulations, including export laws and regulations of the United States. Licensee will not, without the prior authorization of Motorola and the appropriate governmental authority of the United States, in any form export or re-export, sell or resell, ship or reship, or divert, through direct or indirect means, any item or technical data or direct or indirect products sold or otherwise furnished to any person within any territory for which the United States Government or any of its agencies at the time of the action, requires an export license or other governmental approval. Violation of this provision is a material breach of this Agreement.

13.3 FUTURE REGULATORY REQUIREMENTS. The Parties acknowledge and agree that this is an evolving technological area and therefore, laws and regulations regarding Services and use of Solution may change. Changes to existing Services or the Solution required to achieve regulatory compliance may be available for an additional fee. Any required changes may also impact the price for Services.

13.4. ASSIGNMENTS AND SUBCONTRACTING. Motorola may assign its rights or subcontract its obligations under this Agreement, or encumber or sell its rights in any Software, without prior notice to or consent of Licensee.

13.5. GOVERNING LAW. This Agreement is governed by the laws of the United States to the extent that they apply and otherwise by the internal substantive laws of the State to which the Software is shipped if Licensee is a sovereign government entity, or the internal substantive laws of the State of Illinois if Licensee is not a sovereign government entity. The terms of the U.N. Convention on Contracts for the International Sale of Goods do not apply. In the event that the Uniform Computer Information Transaction Act, any version of this Act, or a substantially similar law (collectively "UCITA") becomes applicable to a party's performance under this Agreement, UCITA does not govern any aspect of this Agreement or any license granted under this Agreement, or any of the parties' rights or obligations under this Agreement. The governing law will be that in effect prior to the applicability of UCITA.

13.6. THIRD PARTY BENEFICIARIES. This Agreement is entered into solely for the benefit of Motorola and Licensee. No third party has the right to make any claim or assert any right under this Agreement, and no third party is deemed a beneficiary of this Agreement. Notwithstanding the foregoing, any licensor or supplier of third party software included in the Software will be a direct and intended third party beneficiary of this Agreement.
1021
Lease Communication System and Services Agreement v.2023.05.24 22 13.7. SURVIVAL. Sections 4, 5, 6.4, 7, 8, 9, 10, 11 and 13 survive the termination of this Agreement.

13.8. ORDER OF PRECEDENCE. In the event of inconsistencies between this Exhibit and the Primary Agreement, the parties agree that this Exhibit prevails, only with respect to the specific subject matter of this Exhibit, and not the Primary Agreement or any other exhibit as it applies to any other subject matter.

13.9. SECURITY. Motorola uses reasonable means in the design and writing of its own Software and the acquisition of third party Software to limit Security Vulnerabilities. While no software can be guaranteed to be free from Security Vulnerabilities, if a Security Vulnerability is discovered, Motorola will take the steps set forth in Section 6 of this Agreement.
1022
Lease Communication System and Services Agreement v.2023.05.24 23 Exhibit B

PAYMENT
For the System purchase financed through Motorola, please refer to the payment schedule included in the Equipment Lease-Purchase Agreement
If Customer has purchased additional Professional or Subscription services, payment will be in accordance with the applicable Addenda.

For Lifecycle Support Plan and Subscription Based Services:

Motorola will invoice Customer annually in advance of each year of the plan, or as otherwise stated in the applicable addenda.

The chart below outlines the hourly labor rates for Motorola System Integration resources to be used. The staffing requirements shall be multiplied by the appropriate rate per resource in the table below. The hourly labor rates are fully burdened. The hourly rates per resource type and level are listed in Table 1.

These rates apply to ordinary days and times (Monday to Friday during the hours 8am to 5pm). Additional surcharges may apply to work done outside these timeframes. The minimum charge for any resource will be 4 hours. Travel expenses are not included in these rates and may be charged separately.

The qualifications of each type and level of resource are defined in the tables found at https://www.motorolasolutions.com/content/dam/msi/secure/services/labor-rates-exhibit-160408.pdf.. All Motorola System Integration personnel assigned to this project will be classified according these levels. Project Administrative roles are varied and their specific duties and qualifications will be determined by the complexity and requirements of each project.
1023
Lease Communication System and Services Agreement v.2023.05.24 24 Exhibit E

EQUIPMENT LEASE PURCHASE AGREEMENT DELIVERY AND ACCEPTANCE CERTIFICATE The undersigned Lessee hereby acknowledges receipt of the Equipment described below (“Equipment”) and Lessee hereby accepts the Equipment after full inspection thereof as satisfactory for all purposes of lease Schedule A to the Equipment Lease Purchase Agreement executed by Lessee (Customer) and Lessor.

Equipment Lease Purchase Agreement No.: ______________
Lease Schedule A No. : ______________

EQUIPMENT INFORMATION

QUANTITY MODEL NUMBER EQUIPMENT DESCRIPTION
Equipment referenced in lease Schedule A#
_______________. See Schedule A for a detailed
Equipment List.

LESSEE/CUSTOMER:

By: ______________________________________
Title:_____________________________________

Date: ____________________________________
Please complete this form and send a copy via US mail or email to:

Motorola Solutions Credit Company LLC
Attn: Bill Stancik, Finance Manager | 500 W. Monroe, 44th Floor | Chicago, IL 60661 Email: [email protected] | Telephone: (847) 538-453 1024
Date: January 23, 2024
Financing proposal for: City of Banning
Communications System Financing Proposal
Motorola Solutions Credit Company LLC is pleased to submit the following proposal for the financing of your Motorola Communications solution in accordance with the terms and conditions outlined below:

Transaction Type: Municipal Lease-Purchase Agreement
Lessor: Motorola Solutions, Inc. (or its Assignee)
Lessee: City of Banning
Amount: $548,371.40
Down Payment: $0.00
Balance to Finance: $548,371.40
Equipment: As per the Motorola equipment proposal.

Title: Title to the equipment will vest with the Lessee.

Insurance: Lessee will be responsible to insure the equipment as outlined in the lease contract.

Taxes: Personal property, sales, leasing, use, stamp, or other taxes are for the account of the Lessee.

Option One Option Two Option Three
Lease Term: Three Years Four Years Five Years
Payment Frequency: Annual Annual Annual
Payment Structure: Arrears Arrears Arrears
Lease Rate: 5.99% 5.96% 5.85%
Lease Factor: 0.374041 0.288327 0.236428
Lease Payment: $205,113.17 $158,110.39 $129,650.63
Payment Commencement: First payment due
one year after
contract
execution.

Expiration: This above lease rates and factors are valid for all leases commenced by 2/23/2024
Qualifications: Receipt of a properly executed documentation package.

Lessee qualifies as a political subdivision or agency of the State as defined in the Internal Revenue Code of 1986. The interest portion of the Lease Payments shall be excludable from the Lessor's gross income pursuant to Section 103 of the Internal Revenue Code.

Receipt of a copy of the last years audited financial statements and current year's budget from the Lessee.

This proposal should not be construed as a commitment to finance.

It is subject to final Motorola credit committee approval. This quote is based on the general level of interest rates, primarily U.S. Treasury Bills of like term maturity. Any movement in those rates in excess of 10 basis points will result in the revision of this quote.

Documentation: Municipal Equipment Lease Purchase Agreement Opinion of Counsel
Schedule A / Equipment List
Schedule B / Amortization Schedule
8038G
UCC-1
Certificate of Incumbency
Statement of Essential Use/Source of Funds
Evidence of Insurance or Statement of Self Insurance
Resolution from governing body authorizing the execution of the Lease Please feel free to contact me if there are any questions or if an alternate structuring is required.

Regards,
Bill Stancik
Motorola Customer Financing
847-538-4531

LESSEE CERTIFIES THAT IT HAS DESIGNATED THIS LEASE AS A

QUALIFIED TAX-EXEMPT OBLIGATION IN ACCORDANCE WITH
SECTION 265(b)(3) OF THE CODE, THAT IT HAS NOT DESIGNATED MORE THAN $10,000,000 OF ITS OBLIGATIONS AS QUALIFIED TAXEXEMPT OBLIGATIONS IN ACCORDANCE 1025
5 year Financing Estimates
as of
1/23/24
True interest cost of the Lease (the rate necessary to discount the amounts payable on the respective principal and interest payment dates to the purchase price received for the new issue of Lease)

5.85%
Finance charge of the Lease (the sum of fees and charges paid to third parties):
$ 99,881.75
Amount of proceeds received by the public body from the sale of the Lease, less the finance charge of the Lease and any reserves or capitalized interest paid or funded with proceeds of the Lease $ 548,371.40
The total payment amount (the sum total of all debt service payments on the Lease, plus the finance charge of the Lease not paid from bond proceeds)
$ 648,253.15
Pursuant to Government Code Section 5852.1, the following good faith estimates (obtained Lender) must be disclosed at a public meeting before the authorization of the Lease. The based on market estimates as of January 23, 2024:
1026
(obtained from the
estimates are
1027
01/31/2024 Police/2200 951-849-1003
Ac?ng Lt Roberto Jauregui
Motorola Solutions, Inc
13108 Collections Center Drive, Chicago IL 60693 631-883-4238 X
X
X
1028
This is for the purchase of Motorola radios, this is the only vendor that supplies us with the required model and equipment.
125 E. Ramsey Street, Banning CA 92220
X
1029

ATTACH TO THE SOLE SOURCE FORM
DETAILED JUSTIFICATION FOR SOLE SOURCE:
(widen text boxes as necessary)
The requestor shall clearly provide:
a. A detailed descrip?on of the type of contract to be established; b. A detailed descrip?on of services and/or commodi?es to be provided by the vendor; The 50 radios would replace the APX 7000 radios the Banning Police Department currently u?lizes that are now an unsupported model and out-of-date. The APX NEXT radio is the most up-to-date handheld radio available for police use and fills all of the needs of the Banning Police Department when it comes to a handheld radio.
c. An explana?on of why the recommended vendor is the only one capable of providing the required services and/or commodi?es and include back-up informa?on to support the jus?fica?on;
Motorola Solu?ons is the only vendor available to purchase the Motorola APX NEXT radios.

The Banning Police Department is currently on the Riverside County Public Safety Enterprise Communica?on (PSEC) System which is a Motorola back-end system.

This contract with Motorola is for the purchase of 50 new APX NEXT handheld radios and related accessories. Along with a five- year subscrip?on fee for services. 1030
d. The iden?ty of other sources that have been contacted and explain in detail why they cannot fulfill the City’s requirements;
The equipment being sought is a Motorola brand that cannot be fulfilled by another vendor.

Con?nuing to use Motorola radio products will allow the Banning Police Department to maintain interoperability with other agencies and the PSEC system. e. An explana?on of how the recommended vendor’s prices or fees compare to the general market and a? ach quotes for comparable services and supplies, if available (limited compe??on); This would be comparing unlike products as Motorola Solu?ons is the sole provider of Motorola products.

f. An explana?on of how the City would accomplish this par?cular task if the recommended vendor could not provide the product or service.

This would be a cri?cal blow to public safety and the safety of Banning Police Department personnel. Losing the availability of Motorola radios would risk losing the interoperability with other agencies in Riverside County and the PSEC system. Using Motorola Solu?ons radios allows the Banning Police Department to quickly connect with other agencies to react to cri?cal incidents.
1031
Note: Valid Sole Source jus?fica?on requires strong technological or strong programma?c jus?fica?ons 1032

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Jim Steffens, Acting Electric Utility Director Jason Smith, Electric Utility Operations Manager
MEETING DATE: February 13, 2024
SUBJECT: Consideration of Resolution 2024-23, Approving the Sole-Sourced Emergency Site Clean-up, Damaged Equipment Removal, Environmental Site Remediation and Security Guard Services Due to a Vandalism Fire at the Electric Utility’s Alola Substation at an Updated Total Expense of $382,206.57
RECOMMENDATION:

Staff recommends that the City Council adopt Resolution 2024-23.

BACKGROUND:

On October 24, 2023, Council approved Resolution 2023-170 for an estimated amount of $300,000 for the total cost of the damages caused by the Alola Substation fire. Although the remediation work was not completed at the time, staff brought forward Resolution 2023-170 to make City Council aware of the emergency expenditures and to get approval for an estimated amount of the total costs. The contaminated area was successfully contained within the property, however at a greater cost than the original $300,000 estimation. The final cost for GrayMar to remediate the site was $377,406.57.

Additionally, in the interest of public safety and to prevent further vandalism, Ava Security was hired to guard the substation until the remediation was completed. The cost for Ava Security was $4,800.00, therefore the actual total costs ended up being $382,206.57, which is $82,206.57 greater than the estimated cost of $300,000 approved in Resolution 2023-170. Staff therefore desires to advise City Council of the updated final costs and get approval of the updated final costs of $382,206.57.

JUSTIFICATION:

The City’s procurement policies and procedures allows for immediate purchases (Section 13 – Emergency Purchases) to prevent economic or other hardship to the City. In this case, immediate action was necessary to prevent further environmental contamination and potential safety hazards. Inclement weather was also a concern, as oil could possibly penetrate the stormwater system on Livingston Avenue resulting in more costs and greater environmental harm.

The area of soil contamination was much larger than originally thought, therefore the costs for GrayMar Environmental were greater than estimated in Resolution 2023-170.

FISCAL IMPACT:

The total amount for environmental remediation and equipment removal services was $377,406.57.

Security services were $4,800.00, resulting in total costs of $382,206.57. These expenses are being paid out of Electric Fund 670-7000.
1033
The City is currently in the claims process with PERMA. If the claim is approved by PERMA then the fiscal impact may be reduced to only the deductible of $10,000.00.

ALTERNATIVES:

1. Adopt Resolution 2024-23 as recommended.

2. Adopt Resolution 2024-23 with modifications.

3. Do not approve Resolution 2024-23 and provide alternative direction to staff.

ATTACHMENTS:

1. Resolution 2024-23, Alola Fire Cleanup Final

2. Final Detailed GrayMar Invoice.pdf

3. Amendment No. 1.pdf

4. 2023-170 Aloha Substation Fire Executed.pdf

5. Ava Security Payment Voucher.pdf
1034
Resolution 2024-23

Page 1 of 3 ends

RESOLUTION 2024-23

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,

APPROVING THE SOLE-SOURCED EMERGENCY SITE CLEAN-UP, DAMAGED

EQUIPMENT REMOVAL, ENVIRONMENTAL SITE REMEDIATION AND SECURITY GUARD SERVICES DUE TO A VANDALISM FIRE AT THE ELECTRIC UTILITY’S ALOLA SUBSTATION AT AN UPDATED TOTAL EXPENSE OF $382,206.57
WHEREAS, City of Banning owns and operates a retail electrical energy distribution system which includes multiple substations; and
WHEREAS, on September 26, 2023, the Alola Substation was vandalized and set on fire; and
WHEREAS, due to the fire, cooling oil in one of the transformers boiled out onto the ground causing contamination to the surrounding soil; and
WHEREAS, on September 26, 2023, Electric Utility staff contracted with GrayMar Environmental to clean up and remediate the site expeditiously to contain the contamination to as small of an area as possible; and
WHEREAS, on September 30, 2023, the Administrative Services Department / Electric Utility contracted with Ava Security to guard the Alola Substation for public safety and to prevent further vandalism; and
WHEREAS, on October 24, 2023, City Council adopted Resolution 2023-170 which advised City Council of the emergency expenditures that were ongoing, and approved an estimated cost amount of $300,000; and
WHEREAS, the area of soil contamination was much larger than initially thought, therefore the costs for GrayMar Environmental turned out to be greater than estimated in Resolution 2023- 170. The final costs for GrayMar were $377,406.57. Adding in the $4,800 for Ava Security, the total costs were $382,206.57; and
WHEREAS, because the final costs are greater than the $300,000 estimate approved in Resolution 2023-170, staff desires to advise City Council of the updated final costs and ratify the updated final costs of $382,206.57.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:

SECTION 1. The City Council hereby approves the final costs of $382,206.57 for the emergency site clean-up, damaged equipment removal, environmental site remediation, and security costs due to the vandalism fire at the Electric Utility’s Alola Substation.

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. 1035
Resolution 2024-23

Page 2 of 3 ends

PASSED, APPROVED AND ADOPTED this 13th day of February 2024.

Alberto Sanchez, Mayor
City of Banning
ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning

APPROVED AS TO FORM AND
LEGAL CONTENT:

Serita R. Young, City Attorney
Richards, Watson & Gershon
1036
Resolution 2024-23

Page 3 of 3 ends

CERTIFICATION:

I, Caroline Patton, Deputy City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-23, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 13th day of February 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
1037
GrayMar Environmental Services Inc
100 Springdale Road, Suite A3, Box # 302
Cherry Hill, NJ 08003 US
www.graymarenvironmental.com

BILL TO SHIP TO
City of Banning
99 E. Ramsey Street
Banning, CA 92220
City of Banning
Electric Dept.
90 S Aloha St
Banning CA 92220
INVOICE 092723SCA -BAN
DATE 10/16/2023 TERMS Net 30
DUE DATE 12/08/2023
TRACKING NO. INVOICE# SUBMITTAL DATE
SCA-2125 092723SCA -BAN 11/10/2023

DESCRIPTION QTY RATE AMOUNT
9/27/23 - Provide personnel & equipment to
remediate substation due to transformer fire.

Sampling for analytical testing.

Project Manager - ER - J. Teten 1 130.00 130.00
Technician - ER - I. Campos 1 70.00 70.00
Technician - ER - J. Torres 5.50 70.00 385.00
Service Truck - P15 5.50 65.00 357.50
Service Truck - P149 5.50 65.00 357.50
Service Truck - S806 5.50 65.00 357.50
Emergency Response Trailer (Day) 1 495.00 495.00
Level D PPE (Ea) 2 30.00 60.00
Level C PPE (Ea) 2 125.00 250.00
GME Cartridges (Pair) 2 48.00 96.00
Gloves - 12" PVC (Pair) 2 12.00 24.00
Disposable Boot Covers (Pair) 2 18.00 36.00
Sample Jars (Ea) 4 8.00 32.00
Confined Space Entry (Day) - Harness &
Lanyard
1 395.00 395.00
55 Gal Open Top Metal Drum (Ea) 1 105.00 105.00
Drum Liners (Ea) 2 21.00 42.00
Rags, 50 lb/ 23 kg (Bag) 0.25 68.00 17.00
Hand Tools (Day) 1 25.00 25.00
HazCat Test (Ea) 3 35.00 105.00
1038

DESCRIPTION QTY RATE AMOUNT
9/28/23 - Return - Provide personnel &
equipment to remediate substation due to
transformer fire.

Project Manager - ER - J. Teten 7.50 130.00 975.00
Project Manager - ER OT 1 195.00 195.00
Technician - ER - I. Campos 7.50 70.00 525.00
Technician - ER OT 1 105.00 105.00
Technician - ER - J. Torres 7.50 70.00 525.00
Technician - ER OT 1 105.00 105.00
Equipment Operator - ER - D. Macias 7.50 85.00 637.50
Equipment Operator - ER OT 1 127.50 127.50
Equipment Operator - ER - W. aguilar 7.50 85.00 637.50
Equipment Operator - ER OT 1 127.50 127.50
Service Truck -S806 8.50 65.00 552.50
Service Truck - P150 8.50 65.00 552.50
Tractor T-526 1 0.00 0.00
Roll Off Trailer (HR) R714 8.50 145.00 1,232.50
Single Bin Roll Off Trailer (HR) RT02 8.50 145.00 1,232.50 Hand Tools (Day) 1 25.00 25.00
Roll off Container (DAY) B946 On Rent 1 35.00 35.00
Roll off Container (DAY) B947 On Rent 1 35.00 35.00
Roll Off Container (Day) PT1862 On Rent 1 35.00 35.00
Roll Off Container (Day) PT1143 On Rent 1 35.00 35.00
Roll Off Container (Day) PT2425 On Rent 1 35.00 35.00
Roll Off Container (Day) PT6316 On Rent 1 35.00 35.00
Rolloff Container /Dump Trailer Poly Liner (Ea) 6 90.00 540.00 9/29/23 - Return - Provide personnel &
equipment to remediate substation due to
transformer fire.

Project Manager - ER - J. Teten 8 130.00 1,040.00
Project Manager - ER OT 1.50 195.00 292.50
Technician - ER - I. Campos 8 70.00 560.00
Technician - ER OT 1.50 105.00 157.50
Technician - ER - J. Torres 8 70.00 560.00
Technician - ER OT 1.50 105.00 157.50
Equipment Operator - ER - D. Macias 8 85.00 680.00
Equipment Operator - ER OT 1.50 127.50 191.25
Equipment Operator - ER OT - W. Aguilar 8 127.50 1,020.00 Equipment Operator - ER OT 4 127.50 510.00
Equipment Operator -DT OT 0.45 170.00 76.50
Service Truck- S806 9.50 65.00 617.50
Service Truck - P150 9.50 65.00 617.50
1039

DESCRIPTION QTY RATE AMOUNT
Vacuum Truck, Straight- (70bbl) (HR) 12.45 115.00 1,431.75 Tractor -T526 1 0.00 0.00
Tanker Stainless Steel (130bbl) (HR) 9.50 130.00 1,235.00 Level D PPE (Ea) 5 30.00 150.00
Confined Space Entry (Day) Harness/Lanyard 1 395.00 395.00 Granular Absorbent (Bag) 5 25.00 125.00
Hand Tools (Day) 2 25.00 50.00
Hazardous Waste Manifest Fee (Ea) 1 50.00 50.00
Profile Approval Fee (Ea) 1 75.00 75.00
DISPOSAL - DK 1,225 2.00 2,450.00
Hot Wash Out 1 720.00 720.00
10/2/23 - Return - Provide personnel &
equipment to remediate substation due to
transformer fire.

Project Manager - ER - J. Teten 8 130.00 1,040.00
Project Manager - ER OT 3 195.00 585.00
Technician - ER - I. Campos 8 70.00 560.00
Technician - ER OT 3 105.00 315.00
Technician - ER - J. Torres 8 70.00 560.00
Technician - ER OT 3 105.00 315.00
Equipment Operator - ER - D. Macias 8 85.00 680.00
Equipment Operator - ER OT 3.50 127.50 446.25
Equipment Operator - ER - W. Aguilar 8 85.00 680.00
Equipment Operator - ER OT 3 127.50 382.50
Equipment Operator - ER N. Matsuoka 8 85.00 680.00
Equipment Operator - ER OT 3 127.50 382.50
Equipment Operator - ER - J. Palominos 8 85.00 680.00
Equipment Operator - ER OT 3 127.50 382.50
Equipment Operator - ER - J. Clark 8 85.00 680.00
Equipment Operator - ER OT 3 127.50 382.50
Service Truck -P150 11 65.00 715.00
Service Truck - S806 11 65.00 715.00
Tractor - T527 1 0.00 0.00
Heavy Equipment Trailer 11 145.00 1,595.00
Tractor - T526 1 0.00 0.00
Tanker Stainless Steel (130bbl) (HR) 11.50 130.00 1,495.00 Single Bin Roll Off Trailer (HR) RT02 11 145.00 1,595.00 Mini Excavator (HR) 11 96.00 1,056.00
Skid-Steer (HR) 11 96.00 1,056.00
Hand Tools (Day) 2 25.00 50.00
Hazardous Waste Manifest Fee (Ea) 1 50.00 50.00
Profile Approval Fee (Ea) 1 75.00 75.00
1040

DESCRIPTION QTY RATE AMOUNT
Hazardous Waste Manifest Fee (Ea) 1 50.00 50.00
DISPOSAL -Emerald Transformer 2,289 2.00 4,578.00
10/3/23 -Return - Provide personnel & equipment
to remediate substation due to transformer fire.

Project Manager - ER - J. teten 8 130.00 1,040.00
Project Manager - ER OT 3 195.00 585.00
Technician - ER -I. Campos 8 70.00 560.00
Technician - ER OT 3 105.00 315.00
Technician - ER - J. Torres 8 70.00 560.00
Technician - ER OT 3 105.00 315.00
Equipment Operator - ER - D. Macias 8 85.00 680.00
Equipment Operator - ER OT 3 127.50 382.50
Equipment Operator - ER- N. Matsuoka 8 85.00 680.00
Equipment Operator - ER OT 3 127.50 382.50
Equipment Operator - ER- J. Palominos 8 85.00 680.00
Equipment Operator - ER OT 3 127.50 382.50
Equipment Operator - ER - J. Clark 8 85.00 680.00
Equipment Operator - ER OT 3 127.50 382.50
Service Truck - S806 11 65.00 715.00
Service Truck - P150 11 65.00 715.00
Tractor - T527 1 0.00 0.00
Heavy Equipment Trailer E253 11 145.00 1,595.00
Tractor - T526 1 0.00 0.00
Roll Off Trailer (HR) R714 11 145.00 1,595.00
Roll Off Trailer (HR) RT02 11 145.00 1,595.00
Mini Excavator (HR) 11 96.00 1,056.00
Skid-Steer (HR) 11 96.00 1,056.00
Level D PPE (Ea) 8 30.00 240.00
Poly Sheeting, 6mil, 20' x 100' (Ea) 1 195.00 195.00
Rolloff Container /Dump Trailer Poly Liner (Ea) 4 90.00 360.00 Roll off Container (Day) PT5834 On Rent 1 35.00 35.00
Roll off Container (Day) PT3348 On Rent 1 35.00 35.00
Roll off Container (Day) PT6310 On Rent 1 35.00 35.00
Roll off Container (DAY) B949 On Rent 1 35.00 35.00
Hand Tools (Day) 2 25.00 50.00
10/4/23 - Return - Provide personnel &
equipment to remediate substation due to
transformer fire.

Project Manager - ER - J.Teten 8 130.00 1,040.00
Project Manager - ER OT 3 195.00 585.00
Technician - ER - I. Campos 8 70.00 560.00
Technician - ER OT 3 105.00 315.00
1041

DESCRIPTION QTY RATE AMOUNT
Technician - ER - J. Torres 8 70.00 560.00
Technician - ER OT 3 105.00 315.00
Equipment Operator - ER - D. Macias 8 85.00 680.00
Equipment Operator - ER OT 2.50 127.50 318.75
Equipment Operator - ER - W. Aguilar 8 85.00 680.00
Equipment Operator - ER OT 3 127.50 382.50
Equipment Operator - ER -N. Matsuoka 8 85.00 680.00
Equipment Operator - ER OT 3 127.50 382.50
Equipment Operator - ER - J. Palominos 8 85.00 680.00
Equipment Operator - ER OT 3 127.50 382.50
Service Truck - S806 11 65.00 715.00
Service Truck - P150 11 65.00 715.00
Tractor -T526 1 0.00 0.00
Heavy Equipment Trailer E253 11 145.00 1,595.00
Single Bin Roll Off Trailer (HR) RT02 11 145.00 1,595.00 Mini Excavator (HR) 11 96.00 1,056.00
Skid-Steer (HR) 11 96.00 1,056.00
Level D PPE (Ea) 7 30.00 210.00
Poly Sheeting, 6mil, 20' x 100' (Ea) 1 195.00 195.00
Rolloff Container /Dump Trailer Poly Liner (Ea) 5 90.00 450.00 Rags, 50 lb/ 23 kg (Bag) 0.50 68.00 34.00
Roll off Container (Day) PT23002 On Rent 1 35.00 35.00
Roll off Container (Day) PT3528 On Rent 1 35.00 35.00
10/5/23 - Return - Provide personnel &
equipment to remediate substation due to
transformer fire.

Project Manager - ER - T. Wood 5 130.00 650.00
Equipment Operator - ER - J. Teten 5 85.00 425.00
Technician - ER - I. Campos 8 70.00 560.00
Technician - ER - J. Torres 8 70.00 560.00
Equipment Operator - ER - W. Aguilar 6.50 85.00 552.50
Equipment Operator - ER - D. Macias 8 85.00 680.00
Equipment Operator - ER OT 2 127.50 255.00
Equipment Operator - ER - J. Clark 8 85.00 680.00
Equipment Operator - ER OT 2.50 127.50 318.75
Service Truck -S806 8 65.00 520.00
Service Truck - P150 8 65.00 520.00
Service Truck - P999 8 65.00 520.00
Tractor - T526 1 0.00 0.00
Heavy Equipment Trailer-E253 8 145.00 1,160.00
Roll Off Trailer (HR) RT02 10 145.00 1,450.00
Tractor - T528 1 0.00 0.00
1042

DESCRIPTION QTY RATE AMOUNT
Roll Off Trailer (HR) R714 10.50 145.00 1,522.50
Mini Excavator (HR) 8 96.00 768.00
Skid-Steer (HR) 8 96.00 768.00
Level D PPE (Ea) 7 30.00 210.00
Rolloff Container /Dump Trailer Poly Liner (Ea) 2 90.00 180.00 Poly Sheeting, 6mil, 20' x 100' (Ea) 1 195.00 195.00
Rags, 50 lb/ 23 kg (Bag) 1 68.00 68.00
Roll off Container (Day) PT2405 1 35.00 35.00
Roll off Container (Day) PT 23002 Off Rent 1 35.00 35.00 Profile Approval Fee (Ea) 1 75.00 75.00
DISPOSAL - Soil Safe 16.23 46.25 750.64
DISPOSAL - Soil Safe 17.14 46.25 792.73
10/6/2023 - Provide personnel & equipment to
transport bins to Soil Safe.

0.00 Equipment Operator - ER - W. Aguilar 5 85.00 425.00 Tractor - T526 1 0.00 0.00
Roll Off Trailer (HR) R714 5 145.00 725.00
DISPOSAL - Soil Safe 16.28 46.25 752.95
10/9/23 -Provide personnel & equipment to
transport bins to Soil Safe.

Equipment Operator - ER - D. Macias 8 85.00 680.00
Equipment Operator - ER OT 2 127.50 255.00
Tractor - T527 1 0.00 0.00
Roll Off Trailer (HR) R714 10 145.00 1,450.00
DISPOSAL - Soil Safe 16.37 46.25 757.11
DISPOSAL - Soil Safe 17.98 46.25 831.58
10/10/23-Provide personnel & equipment to
transport bins to Soil Safe.

Equipment Operator - ER - D. Macias 8 85.00 680.00
Equipment Operator - ER OT 2 127.50 255.00
Tractor T527 1 0.00 0.00
Roll Off Trailer (HR) R714 10 145.00 1,450.00
DISPOSAL - Soil Safe 16.64 46.25 769.60
DISPOSAL - Soil Safe 17.31 46.25 800.59
10/11/23 - Provide personnel & equipment to
prep xfrmrs and cabinet for removal.

Project Manager - ER -T. Wood 7 130.00 910.00
Technician - ER - J. Teten 7 70.00 490.00
Technician - ER - I. Campos 7 70.00 490.00
Service Truck -S806 7 65.00 455.00
Service Truck - P150 7 65.00 455.00
Service Truck - P999 7 65.00 455.00
1043

DESCRIPTION QTY RATE AMOUNT
Level D PPE (Ea) 3 30.00 90.00
Sawzall (Day) 1 90.00 90.00
Hand Tools (Day) 1 25.00 25.00
Extension Ladder 1 25.00 25.00
Equipment Operator - D. Macias 8 85.00 680.00
Equipment Operator - ER OT 2 127.50 255.00
Tractor - T526 1 0.00 0.00
Roll Off Trailer (HR) R714 10 145.00 1,450.00
DISPOSAL - Soil Safe 15.84 46.25 732.60
DISPOSAL - Soil Safe 17.96 46.25 830.65
10/12/23 - Provide personnel & equipment to
remove, transport and recycle xfrmers/cabinets.

Demo concrete pad & footings.

Project Manager - ER - T. Wood 8 130.00 1,040.00
Project Manager - ER OT 4 195.00 780.00
Project Manager - ER DT 0.50 260.00 130.00
Technician - ER - I. Campos 8 70.00 560.00
Technician - ER OT 4 105.00 420.00
Technician - ER DT 0.50 140.00 70.00
Equipment Operator - ER - J. Teten 8 85.00 680.00
Equipment Operator - ER OT 4 127.50 510.00
Equipment Operator -DT OT 0.50 170.00 85.00
Equipment Operator - ER - D. Matsuoka 5 85.00 425.00
Equipment Operator - ER - W. Aguilar 7.50 85.00 637.50
Service Truck - P15 12.50 65.00 812.50
Service Truck - P149 12.50 65.00 812.50
Service Truck - P999 12.50 0.00 0.00
Service Truck - P144 5 65.00 325.00
Tractor - T526 1 0.00 0.00
Heavy Equipment Trailer E253 7.50 145.00 1,087.50
Mini Excavator (HR) 7.50 96.00 720.00
Skid-Steer (HR) 7.50 96.00 720.00
Level D PPE (Ea) 5 30.00 150.00
Rags, 50 lb/ 23 kg (Bag) 1 68.00 68.00
Sawzall (Day) 1 90.00 90.00
Hand Tools (Day) 1 25.00 25.00
Extension Ladder 1 25.00 25.00
10/13/23- Provide personnel & equipment to
demo concrete and soil remediation.

Project Manager - ER - T. Wood 8 130.00 1,040.00
Project Manager - ER OT 4 195.00 780.00
Technician - ER - I. Campos 8 70.00 560.00
1044

DESCRIPTION QTY RATE AMOUNT
Technician - ER OT 4 105.00 420.00
Technician - ER - J. Torres 8 70.00 560.00
Technician - ER OT 4 105.00 420.00
Equipment Operator - ER J. Teten 8 85.00 680.00
Equipment Operator - ER OT 4 127.50 510.00
Equipment Operator - ER -D. Matsuoka 8 85.00 680.00
Equipment Operator - ER OT 4 127.50 510.00
Equipment Operator - ER - D. Macias 8 85.00 680.00
Equipment Operator - ER OT 4 127.50 510.00
Equipment Operator - ER - W.Aguilar 8 85.00 680.00
Equipment Operator - ER OT 4 127.50 510.00
Service Truck - P150 12 65.00 780.00
Service Truck - P149 12 65.00 780.00
Service Truck - P144 12 65.00 780.00
Service Truck - P999 12 65.00 780.00
Tractor - T526 1 0.00 0.00
Heavy Equipment Trailer E253 12 145.00 1,740.00
Roll Off Trailer (HR) RT02 12 145.00 1,740.00
Mini Excavator (HR) 12 96.00 1,152.00
Skid-Steer (HR) 12 96.00 1,152.00
Level D PPE (Ea) 7 30.00 210.00
Rolloff Container /Dump Trailer Poly Liner (Ea) 6 90.00 540.00 Rags, 50 lb/ 23 kg (Bag) 1 68.00 68.00
10/16/23 - Provide personnel & equipment to
transport bins to Soil Safe for disposal.

Equipment Operator - ER - D. Macias 8 85.00 680.00
Equipment Operator - ER OT 3 127.50 382.50
Equipment Operator - ER - W. Aguilar 8 85.00 680.00
Tractor T526 1 0.00 0.00
Roll Off Trailer (HR) R714 11 145.00 1,595.00
Tractor T527 1 0.00 0.00
Roll Off Trailer 4 145.00 580.00
DISPOSAL - Soil Safe 17.84 46.25 825.10
DISPOSAL - Soil Safe 13.33 46.25 616.51
10/17/23 - Provide personnel & equipment to
transport bins to Soil Safe for disposal.

Equipment Operator - ER - W. Aguilar 8 85.00 680.00
Tractor - T526 1 0.00 0.00
Roll off Trailer 8 145.00 1,160.00
DISPOSAL - Soil Safe 19.81 46.25 916.21
DISPOSAL - Soil Safe 15.48 46.25 715.95
Equipment Operator - ER - D. Macias 8 85.00 680.00
1045

DESCRIPTION QTY RATE AMOUNT
Equipment Operator - ER OT 2.50 127.50 318.75
Tractor - T527 1 0.00 0.00
Roll Off Trailer (HR) R714 10.50 145.00 1,522.50
DISPOSAL- Soil Safe 17 46.25 786.25
DISPOSAL - Soil Safe 19.43 46.25 898.64
10/18/23 -Provide personnel & equipment to
transport bins to Soil Safe for disposal.

Equipment Operator - ER - W. Aguilar 8 85.00 680.00
Equipment Operator - ER OT 2.50 127.50 318.75
Tractor - T526 1 0.00 0.00
Roll Off Trailer 10.50 145.00 1,522.50
DISPOSAL - Soil Safe 16.37 46.25 757.11
Equipment Operator - OT - D. Macias 8 112.50 900.00
Equipment Operator - ER OT 2.50 127.50 318.75
Tractor - T527 1 0.00 0.00
Roll Off Trailer (HR) R714 10.50 145.00 1,522.50
DISPOSAL - Soil Safe 17.70 46.25 818.63
10/19/23 - Provide personnel & equipment to
load out soil and continue excavation. Transport
bins to Soil Safe for disposal.

0.00 Project Manager - ER - T. Wood 8 130.00 1,040.00
Equipment Operator - ER - J. Teten 8 85.00 680.00
Equipment Operator - ER - D. Matsuoka 8 85.00 680.00
Technician - ER - I. Campos 6 70.00 420.00
Equipment Operator - ER - J. Clark 8 85.00 680.00
Service Truck - P150 8 65.00 520.00
Service Truck - P149 6 65.00 390.00
Service Truck - S806 8 65.00 520.00
Skid-Steer (HR) 8 96.00 768.00
Mini Excavator (HR) 8 96.00 768.00
Cut-Off Saw (Day) 1 160.00 160.00
Hand Tools (Day) 1 25.00 25.00
Level D PPE (Ea) 5 30.00 150.00
Tractor 1 0.00 0.00
Heavy Equipment Trailer - E253 8 145.00 1,160.00
Equipment Operator - ER - W. Aguilar 8 85.00 680.00
Equipment Operator - ER OT 2 127.50 255.00
Tractor - T526 1 0.00 0.00
Roll Off Trailer (HR) R714 10 145.00 1,450.00
DISPOSAL - Daily Total Tonnage to Soil Safe (7
Loads)
See attached summary
160.53 46.25 7,424.51
1046

DESCRIPTION QTY RATE AMOUNT
Roll Off Container (Day) PT6316 - off rent 21 35.00 735.00 Roll Off Container (Day) PT3348 -off rent 16 35.00 560.00 10/20/23 - Provide personnel & equipment to
loud out soil/concrete transport bins to Soil Safe
& LaPaz County Landfill for disposal. Continue
excavation.

Project Manager - ER - T. Wood 8 130.00 1,040.00
Project Manager - ER OT 1.50 195.00 292.50
Technician - ER - I. Campos 8 70.00 560.00
Technician - ER OT 1.50 105.00 157.50
Equipment Operator - ER - J. Teten 8 85.00 680.00
Equipment Operator - ER OT 1.50 127.50 191.25
Equipment Operator - ER D. Matsuoka 8 85.00 680.00
Equipment Operator - ER OT 1.50 127.50 191.25
Equipment Operator - ER - J. Clark 8 85.00 680.00
Equipment Operator - ER OT 1.50 127.50 191.25
Service Truck P-150 9.50 65.00 617.50
Service Truck - P149 9.50 65.00 617.50
Service Truck -P999 9.50 65.00 617.50
Tractor- T528 1 0.00 0.00
Heavy Equipment Trailer - E253 9.50 145.00 1,377.50
Skid-Steer (HR) 9.50 96.00 912.00
Mini Excavator (HR) 9.50 96.00 912.00
Level D PPE (Ea) 5 30.00 150.00
Rolloff Container /Dump Trailer Poly Liner (Ea) 2 90.00 180.00 Cut-Off Saw (Day) 1 160.00 160.00
Hand Tools (Day) 1 25.00 25.00
Equipment Operator - ER- D. Macias 8 85.00 680.00
Equipment Operator - ER OT 3 127.50 382.50
Tractor - T527 1 0.00 0.00
Roll Off Trailer (HR) R714 11 145.00 1,595.00
DISPOSAL - Daily Total Tonnage to Soil Safe
(11 Loads)
See attached summary
277.60 46.25 12,839.00
Disposal: Daily Total Tonnage to LaPaz County
Landfill
See attached

64.97 50.31 3,268.64
Roll Off Container (Day) PT2425 off rent 21 35.00 735.00 Roll Off Container (Day) PT1859 off rent 16 35.00 560.00 Roll off Container (DAY) B949 off rent 17 35.00 595.00
10/23/23 - Transport empty bins to Adler.

Equipment Operator - ER - D Macias 8 85.00 680.00
Tractor - T527 1 0.00 0.00
1047

DESCRIPTION QTY RATE AMOUNT
Roll Off Trailer (HR) R714 8 145.00 1,160.00
Roll off Container (Day) PT5834 off rent 20 35.00 700.00 Roll off Container (Day) PT2405 off rent 18 35.00 630.00 10/25/23 - Provide personnel & equipment to
continue excavation at sample point S23.

Equipment Operator - ER I. Campos 7 85.00 595.00
Equipment Operator - ER - T. Wood 7 85.00 595.00
Technician - ER - J.Torres 7 70.00 490.00
Equipment Operator - ER - N. Matsuoka 7 85.00 595.00
Equipment Operator - ER - W. Aguilar 7 85.00 595.00
Service Truck - S806 7 65.00 455.00
Service Truck - P149 7 65.00 455.00
Tractor 1 0.00 0.00
Heavy Equipment Trailer E253 7 145.00 1,015.00
Roll Off Trailer (HR) RT02 7 145.00 1,015.00
Mini Excavator (HR) 7 96.00 672.00
Skid-Steer (HR) 7 96.00 672.00
Level D PPE (Ea) 5 30.00 150.00
Rolloff Container /Dump Trailer Poly Liner (Ea) 1 90.00 90.00 Hand Tools (Day) 1 25.00 25.00
10/26/23 - Transport bins to LaPaz County
Landfill for disposal. Return bin to Adler.

Equipment Operator - ER - W. Aguilar 8 85.00 680.00
Equipment Operator - ER OT 4 127.50 510.00
Roll Off Trailer (HR) RT02 12 145.00 1,740.00
DISPOSAL - LaPaz County Landfill 15.65 31.56 493.91
Roll off Container (Day) PT1143 Off Rent 28 35.00 980.00 10/27/23-transport bins to LaPaz County Landfill
for disposal. Return bin to Adler.

Equipment Operator - ER - W. Aguilar 8 85.00 680.00
Equipment Operator - ER OT 3.50 127.50 446.25
Roll Off Trailer (HR) RT02 11.50 145.00 1,667.50
DISPOSAL-LaPaz County Landfill 11.39 50.31 573.03
Roll off Container (Day) PT6310 Off Rent 24 35.00 840.00 10/30/23 - Transport bins to LaPaz County
Landfill for disposal.

Equipment Operator - ER-W. Aguilar 8 85.00 680.00
Equipment Operator - ER OT 2.50 127.50 318.75
Roll Off Trailer (HR) RT02 10.50 145.00 1,522.50
DISPOSAL- LaPaz County Landfill 14.79 50.31 744.08
Roll off Container (DAY) B946 Off Rent 32 35.00 1,120.00 1048

DESCRIPTION QTY RATE AMOUNT
10/31/23- Transport bins to Soil Safe for
disposal. Return bin to adler.

Equipment Operator - ER- W. Aguilar 8 85.00 680.00
Roll Off Trailer (HR) RT02 8 145.00 1,160.00
DISPOSAL - Soil Safe 13.89 46.25 642.41
Roll Off Container (Day) PT1862 Off Rent 33 35.00 1,155.00 Roll off Container (Day) PT2372 Off Rent 27 35.00 945.00 Roll off Container (DAY) B948 12 35.00 420.00
11/2/23- Transport bin to Soil Safe.

Equipment Operator - ER 6 85.00 510.00
Roll Off Trailer (HR) 6 145.00 870.00
Disposal: Soil Safe 8.92 46.25 412.55
Roll off Container (DAY) B947 Off Rent 35 35.00 1,225.00 Subtotal: 240,162.23
Environmental Fee/ Fuel Recovery Fee 0.18 240,162.23 43,229.20 Analytical Services (Cost Plus 25%) 1.25 11,870.00 14,837.50 RDO Rental Excavator (Cost Plus 25%) 1.25 3,677.73 4,597.16 EFI Geologist (Cost Plus 25%) 1.25 19,568.48 24,460.60
J Torres (Cost Plus 25%) 1.25 19,794.24 24,742.80
RDO Rentals Loader (Cost Plus 25%) 1.25 6,354.28 7,942.85 Dalton Trucking (Cost Plus 25%) 1.25 2,970.00 3,712.50
Crane (Cost Plus 25%) 1.25 10,977.38 13,721.73
TOTAL DUE $377,406.57
1049
AMENDMENT NO. 1 TO EMERGENCY RESPONSE AGREEMENT
(C00903) FOR ENVIRONMENTAL SERVICES BY AND BETWEEN

CITY OF BANNING AND GRAYMAR ENVIRONMENTAL SERVICES,
INC.

THIS AMENDMENT NO. 1 TO THE EMERGENCY RESPONSE

AGREEMENT FOR ENVIRONMENTAL SERVICES
between the CITY OF BANNING GrayMar Environmental Services, Inc., a California Corporation tractor

RECITALS
A. City and Contractor entered into that certain Emergency Response Agreement dated September 26, 2023 for the purpose of providing environmental remediation Services following a request for quote.

B. City and Contractor now desire to amend the Agreement to increase the Contract Sum to Three Hundred Seventy-Seven Thousand Four Hundred Six Dollars and Fifty-Seven Cents ($377,406.57).

The Parties therefore agree follows:

1. 1.1

2. 2.1

2.2 2.3
1050

2.4 2.5
[SIGNATURE PAGE FOLLOWS]
1051
The Parties are signing this Amendment No. 1 on the date stated in the introductory clause.

CITY OF BANNING CONTRACTOR

Douglas Schulze,
City Manager
NAME:

TITLE:

City Council Approval: _______________ NAME:

TITLE:

ATTEST:

Caroline Patton
Deputy City Clerk

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 CONTRACTOR BUSINESS ENTITY.
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City Of Banning
Payment Voucher
Payee Information
Vendor Name: Vendor #: 8593
Vendor Address:

Mailing Instructions
Mail Check to Vendor
Forward a copy of check to Dept:

Check will be picked up by:

OTHER:

Accounting Information
Invoice #: Invoice Date: FY-Per:

Direct Pay xxx Purchase Order PO #
Multiple Dept Approval
Per GL Account
TOTAL
Approvals
Requested By: Date: 10/19/2023
Manager Approval: Date:

Director Approval: Date:

Date:

City Manager Approval: Date:

Purchasing Manager Approval: (Direct
Pay Exempt Requests Only)
$4,800.00
Edith Garcia
PROJECT # EL2401
32566
GL Account Number Code Amount Description
670-7000-473.95-06 $4,800.00 Alola Security Services
Ava Security
1414 Williams Street, Banning, CA 92220
101 10/7/2023 24-4
1075
Ava Security Invoice #101

1414 Williams Street
Banning, CA 92220
951 849 1294
951 312 8647 cell
[email protected]
www.avasecurity.org
To:

City of Banning Purchasing
Barbara Mason
Purchasing Manager
Email: [email protected]
(951) 922-3121
789 N. San Gorgonio
Banning, CA 92220
Date: October 7th 2023
1 Guard @ $25.00 per hour x 24 hours September 29th to October 6th (8 Days) = $4800.00 Balance Due: $ 4800.00

Kenneth King
Ava Security
1076

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Jim Steffens, Acting Electric Utility Director MEETING DATE: February 13, 2024
SUBJECT: Consideration of Resolution 2024-24, Approving the "Amended and Restated City of Banning Fee Agreement with Thompson Coburn LLP For Special Counsel Services” for an 8% Annual Increase in Hourly Legal Rates and to Update, Restate, and Amend Obsolete Provisions in the Agreement
RECOMMENDATION:

Staff recommends that the City Council adopt Resolution 2024-24.

BACKGROUND:

Beginning in the early 1990’s the City of Banning Electric Utility (Utility), along with the Cities of Anaheim, Azusa, Colton and Riverside began receiving services from Thompson Coburn through a contract with the Power Agency of California (“PAC”) a joint powers agency created to facilitate procurement of utility related services for the five referenced cities. The cities agreed to allocate costs for this contract based on each utility’s relative retail load. This was a very beneficial relationship, especially for the three small cities, which received the full benefit of legal representation, but for a very small percentage of the total cost, which for Banning was only 2.5%.

In 2001, PAC was placed into an “inactive” status and all contracts and services administered through PAC had to be processed directly through the individual cities. However, the cities agreed to continue with the established cost allocation methodology for the Thompson Coburn legal services agreement. In 2005, the City of Pasadena asked to join the five cities in receiving legal representation for the Federal Energy Regulatory Commission (FERC) and the California Independent System Operator (CAISO) matters from Thompson Coburn, and the cost allocation was updated to include Pasadena’s retail load, which resulted in Banning’s allocation being reduced from 2.5% to 2.38%. This group of cities is now referred to as the “Six Cities” in all related FERC and CAISO filings, as well as other pertinent group advocacy.

Thompson Coburn provides legal representation on FERC and CAISO related issues, which includes but is not limited to: Transmission, Generation, Wholesale Electricity Markets, and Reliability Standards Compliance. In Fiscal Year 2023, Banning’s total Thompson Coburn expenses amounted to only $40,243, but they have averaged about $60,000 per year over the last ten years. If Banning were to obtain these services by itself, instead of through the joint Six Cities agreement, it would easily cost up to 20 times that amount. As previously noted, the Six Cities relationship is very beneficial for the City of Banning, and it is essential that the Utility retain legal services for matters pertaining to the FERC and the CAISO, in relation to the Utility’s operation.

Occasionally Thompson Coburn provides services specifically for the Utility, in which case the Utility 1077
pays for the full amount of the services. But these services are minimal, and do not occur very frequently.

Thompson Coburn’s services also provide monetary value to the Utility. For example, Thompson Coburn participates and intervenes on behalf of the Six Cities in CAISO Transmission Rate Filing cases and has frequently been successful in reducing the rates that other transmission owners receive for turning their transmission facilities over to the operational control of the CAISO. These reduced transmission owner rates result in a reduced CAISO Transmission Access Charge (TAC). The TAC is a charge that the Utility must pay the CAISO for use of the CAISO grid. In Fiscal Year 2023 the Utility’s TAC expense was $2.5 million. If not for Thompson Coburn’s successful intervention in CAISO Transmission Rate cases on behalf of the Six Cities over the last twenty years, the Utility’s TAC expenses would be much higher.

Thompson Coburn has provided notice to the Utility of an increase to its hourly rates, effective January 1, 2024, which are reflected in the Amended Agreement. The rate increases average approximately 8% from the 2023 rates. While staff was reviewing the current agreement, it became clear that over the years the exhibits to the agreement had been updated, but that the body of the agreement hadn’t been updated in a long time. For example, the introductory “Whereas” portion of the agreement stopped at when the group was the Five Cities, and did not mention the City of Pasadena joining the group in 2005.

Since Pasadena and the Six Cities are mentioned in the exhibits, there was a disconnect on how the Five Cities became the Six Cities. Therefore, electric staff worked with Purchasing and with Thompson Coburn to update the agreement. The current agreement is attached for reference.

The Amended Agreement, similar to the current agreement, allows the Utility to discharge Thompson Coburn at any time. Alternatively, the Amended Agreement will terminate five years following completion of any matter referred to Thompson Coburn.

JUSTIFICATION:

Approval of Resolution 2024-24 would allow the Utility to continue to obtain legal services for matters pertaining to FERC and CAISO in relation to the Utility’s operation, which includes: Transmission, Generation, Wholesale Electric Markets, and Reliability Standards Compliance. The cost-sharing agreement between the Six Cities is very beneficial to the Utility, as the Utility is responsible for only

2.38% of the legal services performed on behalf of the Six Cities.

FISCAL IMPACT:

Banning’s share of the cost for services provided by Thompson Coburn in FY 2023 totaled $40,243.

However, Banning’s cost for these legal services has averaged approximately $60,000 per year over the last ten years. The proposed rate increase is estimated to raise the Utility’s annual expense by approximately $4,000. Funds are budgeted each year in account 670-7010-473-33.02 to cover this expense.

ALTERNATIVES:

1. Adopt Resolution 2024-24 as recommended.

2. Adopt Resolution 2024-24 with modifications.

3. Do not approve Resolution 2024-24, which would disqualify the Utility from being a member of the Six Cities and from receiving further FERC and CAISO legal representation from Thompson Coburn.

ATTACHMENTS:

1. Resolution 2024-24, Thompson Coburn Agreement

2. Exhibit A - Special Counsel Amended Agreement.docx

3. Exhibit B - Thompson Coburn Current Agreement.pdf
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Resolution 2024-24

Page 1 of 5 ends

RESOLUTION 2024-24

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, APPROVING THE “AMENDED AND RESTATED CITY OF BANNING FEE AGREEMENT WITH THOMPSON COBURN LLP FOR SPECIAL COUNSEL SERVICES” FOR AN 8% ANNUAL

INCREASE IN HOURLY LEGAL RATES AND TO UPDATE, RESTATE, AND AMEND

OBSOLETE PROVISIONS IN THE AGREEMENT
WHEREAS, the City of Banning (City) owns and operates a Municipal Electric Utility (Utility); and
WHEREAS, it is essential that the Utility retain legal services for matters pertaining to the Federal Energy Regulatory Commission (FERC) and the California Independent System Operator (CAISO); and
WHEREAS, the Utility, along with the Cities of Anaheim, Azusa, Colton, Pasadena and Riverside (the “Six Cities”) receive legal services from Thompson Coburn, LLP, and the cities have agreed to allocate costs for these services based on each utility’s relative retail electric load, which for Banning equates to approximately 2.38% of the related expense; and WHEREAS, the Utility received notification from Thompson Coburn that they would have an eight percent increase to their hourly rate schedule effective January 1, 2024, and the proposed increase rates are indicated in the “Amended and Restated City of Banning Fee Agreement with Thompson Coburn LLP for Special Counsel Services” (Amended Agreement), attached herein as Exhibit A; and
WHEREAS, the Utility’s share of the Thompson Coburn expenses has averaged less than $60,000 per year during the last ten years, and the proposed rate increase is expected to raise the Utility’s annual expense by approximately $4,000; and WHEREAS, while reviewing the current agreement that is in place with Thompson Coburn, staff noted that some of the language was incomplete or outdated. Therefore, staff worked with Thompson Coburn and with City purchasing staff to update, restate, and amend the language of the agreement. These updates are reflected in the Amended Agreement. The current agreement is attached herein for reference as Exhibit B; and WHEREAS, the Utility wishes to continue obtaining legal services from Thompson Coburn, LLP through the Amended Agreement; and
WHEREAS, funds to cover the expenses for the Amended Agreement are available in the Electric Fund account 670-7010-473-33.02.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:

SECTION 1. The City Council approves the “Amended and Restated City of Banning Fee Agreement with Thompson Coburn LLP for Special Counsel Services,” attached hereto as Exhibit A, and authorizes the City Manager to sign the Agreement on behalf of the City Council.

SECTION 2. The City Council authorizes the City Manager, or designee, to make necessary budget adjustments, appropriations, and transfers related to the Agreement. 1079
Resolution 2024-24

Page 2 of 5 ends

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 13th day of February 2024.

Alberto Sanchez, Mayor
City of Banning
ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning

APPROVED AS TO FORM AND
LEGAL CONTENT:

Serita R. Young, City Attorney
Richards, Watson & Gershon
1080
Resolution 2024-24

Page 3 of 5 ends

CERTIFICATION:

I, Caroline Patton, Deputy City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-24, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 13th day of February 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Deputy City Clerk
City of Banning, California
1081
Resolution 2024-24

Page 4 of 5 ends

EXHIBIT A
“Amended and Restated City of Banning Fee Agreement with Thompson Coburn LLP for Special Counsel Services”
1082
Resolution 2024-24

Page 5 of 5 ends

EXHIBIT B
Current “City of Banning Fee Agreement with Thompson Coburn LLP for Special Counsel Services”
1083

AMENDED AND RESTATED CITY OF BANNING FEE AGREEMENT WITH

THOMPSON COBURN LLP FOR SPECIAL COUNSEL SERVICES
This AMENDED AND RESTATED FEE AGREEMENT (“Amended
Agreement”) is entered into by and between the law firm of THOMPSON COBURN LLP (“Firm”) and the CITY OF BANNING, a municipal corporation (“City”). The term “City” shall also include all agencies, city councils, boards, commissions, and other bodies of City.

WHEREAS, City, on occasion, has need of assistance of counsel for legal advice or legal services related to protecting the interests of City; and WHEREAS, it is essential that the City retain legal services for matters pertaining to the Federal Energy Regulatory Commission (“FERC”) and the California Independent System Operator Corporation (“CAISO”); and
WHEREAS, the City, along with the Cities of Anaheim, Azusa, Colton and Riverside have received legal services from Firm beginning in the mid-1990s through a contract with the Power Agency of California (“PAC”), and the cities agreed to allocate costs for this contract based on each utility's relative retail load; and WHEREAS, in 2005 the City of Pasadena joined the five cities in receiving legal representation from Firm and the cost allocation was adjusted accordingly, resulting in the City’s allocation of costs being reduced. This group of cities is now referred to as the “Six Cities” for matters pertain to the FERC, the CAISO, and other pertinent group advocacy; and WHEREAS, Firm is willing and able to provide legal services as requested by City; and
WHEREAS, both Firm and City desire to amend the City of Banning Fee Agreement with Thompson Coburn LLP for Special Counsel Services dated September 13, 2016 (“Previous Agreement”). This Amended Agreement will become effective as of January 1, 2024, will update the Exhibits to the Previous Agreement, and will update, restate, amend, and add clarifying provisions to the Previous Agreement.

NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE PROMISES,

COVENANTS, AND CONDITIONS CONTAINED HEREIN, IT IS AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
1084

1. SCOPE OF WORK AND DUTIES.

A. The City hereby hires Firm as its Special Counsel to render legal services under the direction of the City Manager, or his or her designee. Representation shall include, but not necessarily be limited to, legal services in connection with the City public electric utility entity and Federal law.

B. The services shall be performed as directed by the City Manager or his or her designee, and Firm shall keep City informed as to the progress and status of all pending matters.

C. Firm is expected to manage, control, and oversee the delivery of legal services in a competent, professional, and cost-effective manner. Notwithstanding any other provision contained herein, any legal services can only be authorized by the City Manager or his or her designee.

D. City may request the services of particular members of the Firm, and Firm shall use its best efforts to make such members available to provide such services.

2. CITY DUTIES.

City agrees to provide such information, assistance, cooperation, and access to books, records, and other information, as is necessary for Firm to effectively render its professional services under this Amended Agreement. City further agrees to abide by this Amended Agreement, and to timely pay Firm’s bills for fees, costs, and expenses.

3. PERSONNEL.

Firm will provide the following attorneys to render legal services hereunder:

Margaret McNaul: Special Counsel
Bonnie Blair: Assistant Counsel
Rebecca Shelton: Assistant Counsel
Firm will exercise its discretion to utilize whichever attorney(s) (and staff) it determines to be best suited to its rendition of legal services under this Agreement, consistent with the competent and efficient rendering of legal services, and with a view toward rendering such services in an economically efficient manner.
1085

4. COMPENSATION.

Firm’s fees will be charged on an hourly basis for all time actually expended, and such fees are generally billed monthly with payment due within thirty (30) days after the date of the bill. The City agrees to pay, and Firm agrees to accept, as full compensation for its services, compensation at the hourly rates for the positions shown on Exhibit A attached hereto and incorporated by this reference herein, as may be revised from time to time in accordance with this Amended Agreement.

A. Allocation of Costs. Firm provides legal services to the City on a Cityspecific basis and to the City and other municipal electric systems on a collective basis. Legal costs for services provided on a collective basis are generally allocated on the basis shown in Exhibit B attached hereto and incorporated by this reference, subject to revision from time to time.

Accordingly, City will not be charged more than the percentages specified in Exhibit B, as they may be adjusted with the agreement of City, for services provided on a collective basis or the City Manager or his or her designee expressly approves that the services are exclusively allocated to City or allocated to the City based upon a revised percentage allocation. This approval must be expressed in writing prior to the performance of the services.

B. Charges. The foregoing arrangement will remain in effect for calendar year 2024. However, the hourly rates of the attorneys at Firm are reviewed annually and, when appropriate, adjusted to reflect increases in expertise as well as other appropriate factors. Firm may request increases of the hourly rates shown on Exhibit A from time to time by at least ninety (90) days written notice to City. Such increases shall not apply except as provided here, and upon the approval of the City. Proposed increases will be deemed approved by the City unless the City notifies the Firm in writing within ninety (90) days of notification of a proposed change to the Firm’s hourly rates.

5. COSTS AND OTHER CHARGES.

Firm may incur various costs and expenses in rendering the legal services required by this Amended Agreement. City agrees to reimburse Firm for these costs and expenses in addition to the hourly fees for legal services. The costs and expenses referred to herein include, but are not limited to, such expenses as printing and copying costs, filing fees, costs of transcripts, and costs of travel approved by the City.

Firm may determine it necessary or appropriate to use one or more outside investigators, consultants, or experts in rendering the legal services required (particularly if a matter goes into litigation). City will be responsible for paying such fees and charges. Firm will not, however, retain the services of any outside investigators, consultants, or experts without the 1086
prior agreement of City. Firm will select any investigators, consultants, or experts to be hired only after consultation with City.

At present, Firm has contracted for use of consulting services by GDS Associates, Inc. (“GDS”) to assist in matters relating to FERC transmission rate-related proceedings. The City consents to the use of GDS on an ongoing basis for this purpose.

6. STATEMENTS.

Firm shall submit monthly (or on such other basis as Firm and City may agree) itemized invoices to City which document the hours worked, the persons performing the work, the matters or assignments on which the work was performed, and the applicable hourly rates. An itemization of reimbursable expenses claimed by Firm shall be included in the monthly invoice.

Supporting receipts shall be provided to City upon request.

7. INDEPENDENT CONTRACTOR.

Firm shall perform all legal services required under this Amended Agreement as an independent contractor of City, and shall remain, at all times as to City, a wholly independent contractor with only such obligations as are required under this Amended Agreement. Neither City, nor any of its employees, shall have any control over the manner, mode, or means by which Firm, its agents or employees, render the legal services required under this Amended Agreement, except as otherwise set forth. City shall have no voice in the selection, discharge, supervision or control of Firm's employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service.

8. INSURANCE.

Firm shall procure and maintain, at its sole cost and expense, comprehensive general liability and property damage insurance, including automobile and excess liability insurance, and professional liability insurance against all claims for injuries against persons or damages to property resulting from Firm’s negligent acts or omissions arising out of or related to Firm’s performance under this Amended Agreement. The minimum amount of such insurance shall be Three Million Dollars ($3,000,000.00). Firm shall also carry Workers' Compensation Insurance in accordance with applicable workers' compensation laws. The insurance required hereunder shall be kept in effect during the term of this Amended Agreement and shall not be subject to reduction in coverage below the limits established herein, nor cancellation, nor termination without thirty (30) days' prior written notice by registered letter to City. A certificate evidencing the foregoing shall be delivered to City upon request of City. 1087

9. COVENANT AGAINST DISCRIMINATION.

Firm 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, marital status, national origin, or ancestry in the performance of this Amended Agreement. Firm shall take affirmative action to ensure 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.

10. TERM, DISCHARGE AND WITHDRAWAL.

The term of this Amended Agreement shall commence on the Effective Date, subject to modification of fees and allocation percentages as provided in Sections 4 and 5, and shall expire in accordance with the Termination provision set forth herein, or five years following completion of the last matter referred by the City to Firm, whichever occurs earlier.

City may discharge Firm at any time. The Special Counsel shall not be deemed an employee of City and shall have no right to hearing or notice and may be discharged upon written notification by City. Firm may withdraw from City’s representation at any time to the extent permitted by law and the Rules of Professional Conduct, upon at least sixty (60) days' notice to City.

In the event of such discharge or withdrawal, City shall pay Firm professional fees and costs, in accordance with this Amended Agreement, for all work done (and costs incurred) through the date of cessation of legal representation. City agrees to execute, upon request, a stipulation in such form as to permit Firm to withdraw as City's attorneys of record in any legal action then pending. Firm shall deliver all documents and records of City to City, or to counsel designated by City, and assist to the fullest extent possible in the orderly transition of all pending matters to City's new counsel.

11. CONFLICTS.

Firm has no present or contemplated employment which is adverse to the City. Firm agrees that it shall not represent clients in matters involving litigation or arbitrary proceedings against the City. However, Firm may have past and present clients or may have future clients, which, from time to time, may have interests adverse to City in non-litigation matters, and Firm reserves the right to represent such clients in these matters as long as the matter is not connected with its representation of the City.

If a potential conflict of interest arises in Firm’s representation of two clients, if such conflict is only speculative or minor, Firm shall seek waivers from each client with regards 1088
to such representation. However, if real conflicts exist, Firm would withdraw from representing either client in the matter and assist them in obtaining outside special counsel.

12. GOVERNING LAW.

Governing Law. This Amended Agreement shall be governed and interpreted in accordance with the laws of the State of California.

13. MODIFICATION.

This Amended Agreement can only be changed, modified, amended, supplemented, or rescinded in a separate writing signed by all parties.

14. WAIVERS.

A waiver of any provision of this Amended Agreement must be in writing. Failure to insist upon strict performance of any provision, right, duty, or obligation in this Amended Agreement is not a waiver of the right to future enforcement of that provision, right, duty, or obligation, nor any other provision, right, duty, or obligation.

15. INDEMNIFICATION.

Firm shall indemnify the City for any liabilities or losses incurred by the City or its agents due to Firm’s fault arising out of any work performed by Firm for the City. This is intended to ensure Firm is accountable to the City for providing competent and professional legal services without making Firm the City’s insurer for liabilities incurred by the City due to no fault of Firm.

16. SEVERABILITY.

If any of the provisions of this Amended Agreement are found to be unenforceable, those provisions shall be reformed to prevent the unenforceable result in a manner that best preserves the original intent of the provision to the fullest extent possible, and all other provisions of this Amended Agreement shall remain in full force and effect.

17. LEGAL NOTICES.

Notices relating to this Amended Agreement must be in writing and sent to the physical addresses set forth below. A party may change its address for notices by giving notice as required by this provision. Written notice will be considered effective: (a) the day it is personally delivered or actually received; (b) five business days after deposit with the United States Post 1089
Office as certified first-class mail with return receipt requested and postage prepaid; or (c) two business days after deposit with a reputable overnight delivery service for next day delivery.

City: City of Banning
Attention: Mr. Doug Schulze, City Manager
99 East Ramsey Street
Banning, California 92220
Thompson Coburn LLP
Attention: Margaret E. McNaul, Partner
1909 K Street, N.W.

Suite 600
Washington, D.C. 20006

18. LEGAL EFFECT.

This Amended Agreement shall supersede and replace all prior agreements between the parties. The persons executing this Amended 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 Amended Agreement on behalf of said party, (iii) by so executing this Amended Agreement, such party is formally bound to the provisions of this Amended Agreement, and (iv) the entering into this Amended Agreement does not violate any provision of any other Amended Agreement to which said party is bound.

19. AUTHORITY.

The City’s signatory has been authorized by the City Council to execute this Amended Agreement on behalf of the City. Firm’s signatory has been authorized by the partnership to execute this Amended Agreement on behalf of Firm.

20. COUNTERPARTS.

This Amended Agreement may be signed in counterparts, each of which shall constitute an original.

21. 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 1090
(“Electronic Signature”). The parties hereby 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 Amended Agreement and such other documents transmitted by the parties.
1091
IN WITNESS WHEREOF, the parties hereto have executed this Amended Agreement as of the date of execution by the City.

CITY OF BANNING, CALIFORNIA
By:

Name: Doug Schulze ______
Title: City Manager _______
Date:

THOMPSON COBURN LLP
By:

Name: Margaret E. McNaul
Title: Partner
Date:
[END OF SIGNATURES]
1092

EXHIBIT A
The Firm’s hourly fees for legal services from January 1, 2024, to December 31, 2024 are as follows:

Transmission Matters Other Matters
Joshua Adrian
Partner 2024 Rate: $595 2024 Rate: $530
Bonnie Blair
Partner 2024 Rate: $685 2024 Rate: $610
Jenna Cliatt
Associate (2023) 2024 Rate: $400 2024 Rate: $360
Meg McNaul
Partner 2024 Rate: $650 2024 Rate: $580
Griffin Rice
Associate (2019) 2024 Rate: $455 2024 Rate: $405
Rebecca Shelton
Partner 2024 Rate: $595 2024 Rate: $530
Jecoliah Williams
Associate (2019) 2024 Rate: $455 2024 Rate: $405
Rates for other personnel will be as-agreed with the City. 1093

EXHIBIT B
A. The currently-effective cost-sharing percentages for the Six Cities matters are as follows:

City Allocation %
City of Anaheim 39.56
City of Azusa 3.83
City of Banning 2.38
City of Colton 5.38
City of Riverside 30.78
City of Pasadena 18.07
These percentages are applicable to the following Six Cities matters:
1) 46632/56835 (Six Cities Generation Related Assignments) 2) 46632/57431 (Six Cities Transmission Related Assignments) 3) 46632/80383 (Six Cities NERC Related Assignments)
B. The currently-effective cost sharing percentages for matter 37426/35031 (Five Southern Cities Generation Related Assignments) are as follows:

City Allocation %
City of Anaheim 51.00
City of Azusa 4.50
City of Banning 2.50
City of Colton 5.00
City of Riverside 37.00
C. Additionally, the City’s percentage share of matter 48126/68898 (Thompson Coburn NERC Registered Entities Group) will be 2.09%.
1094
CITY OF BANNING FEE AGREEMENT:

SPECIAL COUNSEL SERVICES
This FEE AGREEMENT ( the " Agreement") is entered into by and between the law firm ofTHOMPSON COBURN LLP (" FIRM") and the CITY OF BANNING, a municipal corporation (" City"). The term " City" shall also include all agencies, boards, commissions, and other bodies of City.

NOW, THEREFORE, FOR AND E\ ICONSIDERATION OF THE PROMISES,

COVENANTS, AND CONDITIONS CONTAINED HEREIN, IT IS AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:

1. SCOPE OF WORK AND DUTIES.

A. The City hereby hires Thompson Coburn, LLP as its Special Counsel, to render legal services under the direction of the City Manager, Utility Director, or City Attorney.

Representation shall include, but not necessarily be limited to, legal services in connection with the City public utility entity and Federal law.

B. The services shall be performed, as directed by the Utility Director, and Firm shall keep City informed as to the progress and status of all pending matters.

C. Firm is expected to manage, control and oversee the delivery of legal services in a competent, professional, and cost- effective manner. Notwithstanding any other provision contained herein, any legal services can only be authorized by the Utility Director.

D. City may request the services of particular members of Thompson Coburn, and Thompson Coburn shall use its best efforts to make such members available to provide such services.
1 1095

2. CITY DUTIES.

City agrees to provide such information, assistance, cooperation, and access to books, records, and other information, as is necessary for Firm to effectively render its professional services under this Agreement. City further agrees to abide by this Agreement, and to timely pay Firm' sbills for fees, costs, and expenses.

3. PERSONNEL.

Firm will provide the following attorneys to render legal services hereunder:

Bonnie Blair: Special Counsel
Margaret McNaul: Assistant Counsel
Firm will exercise its discretion to utilize whichever attorney( s) ( and staff) it determines to be best suited to its rendition of legal services under this Agreement, consistent with the competent and efficient rendering of legal services, and with a view toward rendering such services in an economically efficient manner.

4. COMPENSATION.

A. Firm' sfees will be charged on an hourly basis for all time actually expended, and such fees are generally billed monthly with payment due within thirty (30) days after the date of the bill. City agrees to pay, and Thompson Coburn agrees to accept, as full compensation for Thompson Coburn' sservices, compensation at the hourly rates for the positions shown on Exhibit A attached hereto and incorporated by this reference herein.

B. Allocation of Costs. Firm provides legal services to the City on a City - specific basis and to the City and other municipal electric systems on a collective basis. Legal costs for services provided on a collective basis are generally allocated on the basis shown in Exhibit B attached hereto and incorporated by this reference subject to revision from time to time.

Accordingly, City will not be charged more than the percentages specified in Exhibit B, as they may be adjusted with the agreement of City, for services provided on a collective basis or the Utility Director expressly approves that the services are exclusively allocated to City. This approval must be expressed in writing prior to the performance of the services. Director shall make a written report to the City Council of any services exclusive to the City which have been authorized, and the estimated expense.

C. Charges. The foregoing arrangement will remain in effect for at least Fiscal Years 2015-016. However, the hourly rates of the attorneys at Firm are reviewed annually and, when appropriate, adjusted to reflect increases in expertise as well as other appropriate factors. Thompson Coburn may request increases of the hourly rates shown on Exhibit A from time to time by at least thirty days written notice to City. Such increases shall not apply except as provided here, and only upon the approval of the City Council. 2 1096

5. COSTS AND OTHER CHARGES.

Firm may incur various costs and expenses in rendering the legal services required by this Agreement. City agrees to reimburse Firm for these costs and expenses in addition to the hourly fees for legal services. The costs and expenses referred to herein include, but are not limited to such expenses as printing and copying costs, filing fees, costs of transcripts, and costs of travel approved by the Utility Director.

Finn may determine it necessary or appropriate to use one or more outside investigators, consultants, or experts in rendering the legal services required ( particularly if a matter goes into litigation). City will be responsible for paying such fees and charges. Firm will not, however, retain the services of any outside investigators, consultants, or experts without the prior agreement ofCity. Firm will select any investigators, consultants, or experts to be hired only after consultation with City.

6. STATEMENTS.

Thompson Coburn shall submit monthly ( or on such other basis as Thompson Coburn and City may agree) itemized invoices to City which document the hours worked, the persons performing the work, the matters or assignments on which the work was performed, and the applicable hourly rates. An itemization of reimbursable expenses claimed by Thompson Coburn shall be included in the monthly invoice. Supporting receipts shall be provided to City upon request.

7. INDEPENDENT CONTRACTOR.

Firm shall perform all legal services required under this Agreement as an independent contractor of City, and shall remain, at all times as to City, a wholly independent contractor with only such obligations as are required under this Agreement. Neither City, nor any of its employees, shall have any control over the manner, mode, or means by which Firm, its agents or employees, render the legal services required under this Agreement, except as otherwise set forth. City shall have no voice in the selection, discharge, supervision or control of Firm' s
employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service.

8. INSURANCE.

Firm shall procure and maintain, at its sole cost and expense, comprehensive general liability and property damage insurance, including automobile and excess liability insurance, and professional liability insurance against all claims for injuries against persons or damages to property resulting from Firm' snegligent acts or omissions arising out of or related to Firm' s performance under this Agreement. The minimum amount of such insurance shall be Three Million Dollars ($ 3, 000,00. 0). Firm shall also carry Workers' Compensation Insurance in accordance with applicable workers' compensation laws. The insurance required hereunder shall be kept in effect during the tern of this Agreement, and shall not be subject to reduction in coverage below the limits established herein, nor cancellation, nor termination without thirty (30) days' prior written notice by registered letter to City. A certificate evidencing the foregoing shall be delivered to City.
3 1097

9. COVENANT AGAINST DISCRIMINATION.

Firm 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 ofpersons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. Firm. 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.

10. TERM, DISCHARGE AND WITHDRAWAL.

This Agreement shall continue in effect, subject to modification of fees as provided in Section 5, until terminated by either party hereto. City may discharge Finn at any time. The Special Counsel shall not be deemed an employee of City, and shall have no right to hearing or notice, and may be discharged upon written notification by City. Firm may withdraw from City' srepresentation at any time, to the extent permitted by law, and the Rules of Professional Conduct, upon at least sixty (60) days' notice to City.

In the event of such discharge or withdrawal, City shall pay Firm professional fees and costs, in accordance with this Agreement, for all work done ( and costs incurred) through the date of cessation of legal representation. City agrees to execute, upon request, a stipulation in such form as to permit Firm to withdraw as City' s attorneys of record in any legal action then pending. Firm shall deliver all documents and records ofCity to City, or to counsel designated by City, and assist to the fullest extent possible in the orderly transition of all pending matters to City' s new counsel.

11. CONFLICTS.

Firm has no present or contemplated employment which is adverse to the City.

Finn agrees that it shall not represent clients in matters either litigation or non -litigation against the City. However, Firm may have past and present clients or may have future clients, which, from time to time, may have interests adverse to City, and Firm reserves the right to represent such clients in matters not connected with its representation of the City.

If a potential conflict of interest arises in Firm' srepresentation of two clients, if such conflict is only speculative or minor, Firm shall seek waivers from each client with regards to such representation. However, ifreal conflicts exist, Firm would withdraw from representing either client in the matter, and assist them in obtaining outside special counsel.

12. LEGAL EFFECT.

This Agreement shall supersede and replace all prior agreements between the parties. The persons executing this Agreement on behalf ofthe 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 said 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 said party is bound. 4 1098
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date of execution by the City.

Date: CITY"
CITY OF —B ING, a municipal corporation
By:
t - c:

THOMPSON COBURN, LLP"
By:

Bonnie S. Blau, Esq.

END OF SIGNATURES]
5 1099
EXHIBIT "A"
Thompson Coburn' s
hourly fees for legal services from January 1, 2014, to June 30, 2015 are as follows:

Hourly Rates for Services Market -related Issues Transmission Issues Bonnie S. Blair $ 435 $ 480
Margaret E. McNaul $ 345 $ 385
Rebecca L. Shelton $ 295 $ 335
Other Associates $ 295-$ 395
as approved by City)
Paralegals $ 185-$90
Thompson Coburn' shourly fees for legal services as of July 1, 2015 will be:

Hourly Rates for Services Market -related Issues Transmission Issues Bonnie S. Blair $ 455 $ 505
Margaret E. McNaul $ 370 $ 420
Rebecca L. Shelton $ 320 $ 370
Other Associates $ 310-$ 405
as approved by City)
Paralegals $ 195
1 1100

EXHIBIT B

CURRENTLY -EFFECTIVELY COST SHARING

PERCENTAGES FOR SIX CITIES' MATTERS
46632/ 5835
Six Cities Generation Related Assignments)
City
City of Anaheim
City of Azusa
City of Banning
City of Colton
City of Riverside
City of Pasadena
Allocation %

39. 56

3. 83

2. 38

5. 38

30. 78

18. 07
46632/ 57431
Six Cities Transmission Related Assignments)
City
City ofAnaheim
City of Azusa
City of Banning
City of Colton
City of Riverside
City of Pasadena
Allocation %

39. 56

3. 83

2. 38

5. 38

30. 78

18. 07
46632/ 80383
Six Cities NERC Related Assignments)
City
City of Anaheim
City of Azusa
City of Banning
City of Colton
City of Riverside
City of Pasadena
Allocation %

39. 56

3. 83

2. 38

5. 38

30. 78

18. 07
2 1101
48126/ 68898
Thompson Coburn NERC Registered Entities Group)
City
City ofAnaheim
City of Azusa
City ofBanning
City of Colton
City of Riverside
City of Cleveland
American Municipal Power
Clarksdale Public Utilities
City ofRoseville
City of Pasadena
ElectriCities of NC
Easton Utilities
City of Moreno Valley
Allocation %

7. 40

2. 09

7. 40

25.3 2. 09

7. 40

25.3 2. 09

2. 09
37426/5030
Five Southern Cities Transmission Related Assignments)
City Allocation %
City of Anaheim
City ofAzusa
City ofBanning
City of Colton
City ofRiverside

51. 0

4. 5

2. 5

5. 0

37. 0
37426/5031
Five Southern Cities Generation Related Assignments)
City Allocation %
City of Anaheim
City of Azusa
City ofBanning
City of Colton
City of Riverside

51. 0

4. 5

2. 5

5. 0

37. 0
3 1102

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Carla Young, Business Support Manager
Jim Steffens, Interim Electric Utility Director
MEETING DATE: February 13, 2024
SUBJECT: Consideration of Resolution 2024-26, Approving SATEC ExpertPower Software-as-a-Service (SaaS) Agreement
RECOMMENDATION:

City staff recommends that the City Council adopt Resolution 2024-26.

BACKGROUND:

In June of 2016, City staff presented, discussed, and the City Council adopted, Resolution 2016-29 for $2,350,000, authorizing software modifications and the purchasing of meters and lock rings for implementation of a “Smart Grid Project.” The staff report provided background and justification for the automated meter reading Project, including improved customer service, real-time data, rate design and development, theft and outage detection, and remote connection and disconnection of electrical energy services.

To date, we are complete with the implementation of the AMI project but we do have meter communication problems. These are Itron issues and being addressed by Itron and do not fall under the parameters of SATEC. Staff have been replacing the meters in conjunction with customers’ billing cycles for ease of billing.

In October of 2018, City staff presented, discussed and the City Council adopted, Resolution 2018-129 authorizing the Automated Meter Reading (AMR) and Advanced Metering Infrastructure (AMI) phase of the “Smart Grid Project” in the amount of $450,000. With this phase approved, staff began negotiation of the Master Sales Agreement and Scope of Work with Itron. During this time, staff was informed of SATEC Data Analytics software package and determined the additional customer service, utility billing and engineering benefits would be a better option for the data analytics needs of the Electric Utility. The implementation of using SATEC Data Analytics has enabled Electric Utility Staff to maximize these available benefits and features while the infrastructure deployment is being finalized with Itron.

In August of 2019, City Council adopted Resolution 2019-111 authorizing the implementation software SATEC’s package. Staff recommended the SATEC data analytics after reviewing their package and comparing it to added analytics cost and features from Itron. This addition to the previously approved analytics items offered by Itron. With SATEC staff is able to customize and prioritize reports on demand as opposed to requesting reports and awaiting delivery. Furthermore, staff has been able to utilize most of the improved features at the implementation of the data analytics software rather than wait for full deployment of the AMI infrastructure.

In August of 2023, City Council adopted Resolution 2023-137 authorizing the continued ExpertPower 1103
software as a service package with SATEC for meter data analytics and cloud storage for a term of one year. This one year term was to move the contract period into a perpetual schedule of software maintenance.

JUSTIFICATION:

SATEC’s Data Analytics were more cost effective than Itron’s Data Analytics, hence staff recommended and Council approved this implementation. Staff intends for this to be a perpetual agreement until the City deems these services no longer meet the needs of the Utility.

FISCAL IMPACT:

The cost of the annual maintenance for the SATEC Data Analytics and cloud services software will be billed at a rate of $.45 per endpoint annually with a cost escalator of the lesser of five percent (5%) or Consumer Price Index (CPI). Funds are currently budgeted and will continue to be budgeted annually in the Electric Operating Fund 670.

Year Estimated Amount
2024/2025 $79,115
2025/2026 $83,071
2026/2027 $87,225
2027/2028 $91,586
2028/2029 $96,165
ALTERNATIVES:

1. Adopt Resolution 2023-26 as recommended.

2. Adopt Resolution 2023-26 with modifications.

3. Do not approve Resolution 2023-26 resulting in staff seeking alternate meter data management software. This will adversely affect the electric utility’s ability to bill customers for their energy usage.

ATTACHMENTS:

1. Resolution 2024-26, SATEC.docx

2. Banning - Satec SaaS (C00800) Master Agreement.docx
1104
Resolution 2024-26

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RESOLUTION 2024-26

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,

APPROVING SATEC EXPERTPOWER SOFTWARE-AS-A-SERVICE (SAAS) AGREEMENT WHEREAS, the City of Banning is a general law municipality governed by elected City Council Members; and
WHEREAS, the City of Banning owns and operates a retail electrical energy distribution system which serves load to end-use customers in an assigned area of service; and WHEREAS, on June 28, 2016, the City Council adopted Resolution 2016-29 authorizing the expenditure of $2,350,000 for required utility billing software modifications and purchase of smart meters and locking rings related to the smart grid project; and, WHEREAS, on Oct 9, 2018, the City Council adopted Resolution 2018-129 authorizing the expenditure of $450,000 for Automated Meter Reading and Advanced Metering Infrastructure phase of the “Smart Grid Project”; and,
WHEREAS, on August 27, 2019, the City Council adopted Resolution 2019-111 authorizing the expenditure of $109,975 for the purchase of Data Analytics Software, including cloud services and annual maintenance and support from Satec, Inc.; and, WHEREAS, in August of 2023, City Council adopted Resolution 2023-137 authorizing the continued ExpertPower software-as-a-service package with SATEC for meter data analytics and cloud storage for a term of one year to move the contract period into a regular perpetual schedule under an SaaS agreement.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:

SECTION 1. The City Council hereby approves, in substantive form, the ExpertPower Softwareas-a-Service Agreement with SATEC with a 5-year term and a not-to-exceed total compensation amount of $437,162.67, attached hereto as Exhibit A, and authorizes the City Manager to sign the Agreement on behalf of the City Council.

SECTION 2. The City Council authorizes the City Manager to make non-substantive changes to the Agreement prior to execution and to make necessary budget adjustments, appropriations, and transfers related to the Agreement.

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 13th day of February 2024. 1105
Resolution 2024-26

Page 2 of 4 ends

Alberto Sanchez, Mayor
City of Banning
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 2024-26

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CERTIFICATION:

I, Caroline Patton, Deputy City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-26, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 13th day of February 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Deputy City Clerk
City of Banning, California
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Resolution 2024-26

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EXHIBIT A
SATEC Agreement
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Contract No.975

MASTER AGREEMENT

SOFTWARE AS A SERVICE
This agreement (“Agreement“) is entered into and is effective as of February 1, 2024 (“Effective Date”), by and between the City of Banning located at 99 E. Ramsey Street, Banning, California 92220 (“City”) an SATEC, INC., a New Jersey Corporation, located at 10 Milltown Court, Union, NJ 07083 (“Service Provider”).

RECITALS
WHEREAS, City requires third-party hosted “software as a service” services, as further described herein, with respect to certain of its information technology needs; WHEREAS, City requested a proposal from Service Provider for such services; WHEREAS, Service Provider has experience and expertise in the business of providing the required services;
WHEREAS, Service Provider submitted a proposal to City to provide such services to City; WHEREAS, based on Service Provider’s superior knowledge and experience relating to the required services, City has selected Service Provider to provide and manage the services; WHEREAS, Service Provider wishes to perform the required services and acknowledges that the successful performance of the services and the security and availability of City’s data are critical to the operation of City’s business; and,
WHEREAS, Service Provider has agreed to provide the required services to City, all on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and representations set forth in this Agreement, the parties hereby agree as follows:

1. The Services. This Agreement sets forth the terms and conditions under which Service Provider agrees to license to City certain hosted software and provide all other services necessary for productive use of such software including customization / integration, user identification and password change management, data import / export, monitoring, technical support, maintenance, offsite or onsite training, backup and recovery, and change management (collectively, the “Services“) as further set forth in Exhibit “A” attached hereto.

1.1 Authorized Users. Unless otherwise limited herein, Service Provider grants City a renewable, irrevocable, nonexclusive, royalty-free, and worldwide right and license for any City employee, contractor, or agent, or any other individual or entity authorized by City, (each, an “Authorized User”) to access and use the Services. Other than any limitations otherwise described herein, Authorized Users will have no other limitations on their access to or use of the Services.

1.2 Acknowledgement of License Grant. For the purposes of 11 U.S.C. § 365(n), the parties acknowledge and agree that this Agreement constitutes a grant of a license to City to use intellectual property in software form, by Service Provider. 1109
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1.3 Changes in Number of Authorized Users. City is entitled to increase or decrease the initial number of Authorized Users (“Minimum Commitment”), on an as-requested basis; provided, however, that City shall maintain the Minimum Commitment unless the parties otherwise agree to adjust the Minimum Commitment. Should City elect to change the number of Authorized Users, Service Provider shall reduce or increase Authorized Users specified in Exhibit A and adjust the prospective Services Fees accordingly no later than five (5) business days from City’s written request.

1.4 Control and Location of Services/Cloud Storage. The method and means of providing the Services shall be under the exclusive control, management, and supervision of Service Provider, giving due consideration to the requests of City. Any and all cloud storage shall be in compliance with ISO/IEC 27001 - 27018, as applicable, or successor standards thereto. Verified cloud storage services provided by Amazon Web Services or Microsoft Azure, shall be deemed to comply with this section. Except as otherwise expressly set forth in Exhibit A, the Services (including all data storage), shall be provided solely from within the continental United States and on computing and data storage devices residing therein, and all such locations shall be disclosed to City annually and within thirty (30) days of the effective date of this Agreement.

1.4.1 Subcontractors. Service Provider shall not enter into any subcontracts for the performance of the Services, or assign or transfer any of its rights or obligations under this Agreement, without City’s prior written consent and any attempt to do so shall be void and without further effect and shall be a material breach of this Agreement. Service Provider’s use of subcontractors shall not relieve Service Provider of any of its duties or obligations under this Agreement.

1.4.2 Offensive or Disparaging Content. Where the Services or any web services affiliated with the Services contain offensive content or portray City in a disparaging way, either as solely determined by City, Service Provider shall immediately remove the offensive or disparaging content and City shall have the right, at City’s sole election, to: (a) immediately terminate this Agreement or any portion thereof corresponding to the offending or disparaging content, and be entitled to a return of any prepaid fees, as liquidated damages and not as a penalty; or, (b) obtain or retain, as the case may be, all fees paid or payable for the entire period of the then-current term, as liquidated damages and not as a penalty, associated with that portion of this Agreement corresponding to the offending or disparaging content.

1.5 Storage. The Services shall include the applicable allocation of base data storage as described in Exhibit A, if any. Service Provider shall immediately notify City when City has reached eighty percent (80%) of City’s then-current data storage maximum. Within five (5) calendar days of City’s request, Service Provider shall make additional data storage available to City at the rates described in Exhibit A.

1.6 Development and Test Environments. In addition to production use of the Services, City is entitled to one development and one test environment for use by Authorized Users at no additional charge. Such non-production environments shall have the same data storage and processing capacities as the production environment. Service Provider shall cooperate with City’s requests in managing the non-production environments such as refreshing City Data upon request.

1.7 Documentation. The documentation for the Services (“Documentation”) will accurately and completely describe the functions and features of the Services, including all subsequent revisions thereto. The Documentation shall be understandable by a typical end user and shall provide Authorized Users with sufficient instruction such that an Authorized User can 1110
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become self-reliant with respect to access and use of the Services. City shall have the right to make any number of additional copies of the Documentation at no additional charge.

1.8 Changes in Functionality. During the term of this Agreement, Service Provider shall not reduce or eliminate functionality in the Services. Where Service Provider has reduced or eliminated functionality in the Services, City, at City’s sole election and in City’s sole determination, shall: (a) have, in addition to any other rights and remedies under this Agreement or at law, the right to immediately terminate this Agreement and be entitled to a return of any prepaid fees; or, (b) determine the value of the reduced or eliminated functionality and Service Provider will immediately adjust the Services Fees accordingly on a prospective basis. Where Service Provider has introduced like functionality in other services, City shall have an additional license and subscription right to use and access the new services, at no additional charge, with the same rights, obligations, and limitations as for the Services. Where Service Provider increases functionality in the Services, such functionality shall be provided to City without any increase in the Services Fees.

1.9 No Effect of Click-Through Terms and Conditions. Where an Authorized User is required to “click through” or otherwise accept or be made subject to any online terms and conditions in accessing or using the Services, such terms and conditions are not binding and shall have no force or effect as to the Services or this Agreement.

1.10 Modification of the Services. The City’s Director of Information Technology shall be authorized to waive, in writing, any of the Service Provider’s obligations with respect to the Services, where deemed to be in the City’s best interests, provided that no such modification shall result in any increase in the amount of the Services Fees.

1.11 Compliance with All Laws. In providing the Services, the Service Provider shall comply with any and all applicable local, State and federal laws, statutes, standards, policies, and regulations including, but not limited to, the Health Insurance Portability and Accountability Act of 1996, the Americans with Disabilities Act, the Stored Communications Act, 18 U.S.C. Sections 2701 through 2712, Civil Code Sections 1798.80 through 1798.84, and the California Consumer Privacy Act, Civil Code Section 1798.100, et seq.

2. Service Levels.

2.1 Service Levels; Time is of the Essence. For the term of this Agreement, Service Provider shall provide the Services, force majeure events excepted, during the applicable Service Periods and in accordance with the applicable Service Level Standards, each as described in Exhibit A hereto. Time is of the essence in the performance of the Services.

2.2 Failure to Meet Service Level Standards. In the event Service Provider does not meet a Service Level Standard, Service Provider shall: (a) owe to City any applicable Performance Credit, as liquidated damages and not as a penalty; and, (b) use its best efforts to ensure that any unmet Service Level Standard is subsequently met. Notwithstanding the foregoing, Service Provider will use its best efforts to minimize the impact or duration of any outage, interruption, or degradation of Service. In no case shall City be required to notify Service Provider that a Performance Credit is due as a condition of payment of the same.

2.2.1 Termination for Material and Repeated Failures. City shall have, in addition to any other rights and remedies under this Agreement or at law, the right to immediately terminate this Agreement, and be entitled to a return of any prepaid fees where Service Provider fails to meet any Service Level Standard:
(a) to such an extent that the City’s ability, as solely determined by City, to use 1111
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the Services is materially disrupted, force majeure events excepted; or, (b) for four (4) months out of any twelve (12) month period.

2.3 Audit of Service Levels. No more than quarterly, City or City’s agent shall have the right to audit Service Provider’s books, records, and measurement and auditing tools to verify Service Level Standard achievement and to determine correct payment of any Performance Credit. Where it is determined that any Performance Credit was due to City but not paid, Service Provider shall immediately owe to City the applicable Performance Credit.

3. Support; Maintenance; Additional Services.

3.1 Technical Support. Service Provider shall provide the Technical Support as described in Exhibit A. The Services Fees shall be inclusive of the fees for all Technical Support.

3.2 Maintenance. Service Provider shall provide bug fixes, corrections, modifications, enhancements, upgrades, and new releases to the Services to ensure: (a) the functionality of the Services, as described in the Documentation, is available to Authorized Users; (b) the functionality of the Services in accordance with the representations and warranties set forth herein, including but not limited to, the Services conforming in all material respects to the specifications, functions, descriptions, standards, and criteria set forth in Exhibit A and the Documentation; (c) the Service Level Standards can be achieved; and, (d) the Services work with the then-current version and the three prior versions of Internet Explorer, Edge, Mozilla Firefox, and Google Chrome Internet browsers. The Services Fees shall be inclusive of the fees for maintenance.

3.2.1 Required Notice of Maintenance. Unless as otherwise agreed to by City on a case-by-case basis, Service Provider shall provide no less than thirty (30) calendar day’s prior written notice to City of all non-emergency maintenance to be performed on the Services, such written notice including a detailed description of all maintenance to be performed. For emergency maintenance, Service Provider shall provide as much prior notice as commercially practicable to City and shall provide a detailed description of all maintenance performed no greater than one (1) calendar day following the implementation of the emergency maintenance.

3.2.2 Acceptance of Non-Emergency Maintenance. Unless as otherwise agreed to by City on a case-by-case basis, for non-emergency maintenance, City shall have a ten (10) business day period to test any maintenance changes prior to Service Provider introducing such maintenance changes into production (the “Maintenance Acceptance Period”). In the event that City rejects, for good cause, any maintenance changes during the Maintenance Acceptance Period, Service Provider shall not introduce such rejected maintenance changes into production. At the end of the Maintenance Acceptance Period, if City has not rejected the maintenance changes, the maintenance changes shall be deemed to be accepted by City and Service Provider shall be entitled to introduce the maintenance changes into production.

3.3 Customization / Integration Services. Service Provider shall provide the Customization / Integration Services, if any, described in Exhibit A. The Services Fees shall be inclusive of the fees for the Customization / Integration Services.

4. Audit Rights of Service Provider. Service Provider shall have no right to conduct an on-premises audit of City’s compliance with the use of the Services. No more than once annually, Service Provider shall have the right to request from City its certification of compliance with the permitted number of Authorized Users. Where the actual number of users exceeds the permitted number of 1112
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Authorized Users, City, at City’s sole election shall, within thirty (30) business days: (a) reduce the actual number of users so as to be in compliance with the permitted number of Authorized Users in which case no additional Services Fees shall be due to Service Provider; or, (b) acquire the appropriate number of Authorized Users’ licenses at the rate specified in Exhibit A so as to be in compliance with the permitted number of Authorized Users.

5. Change in Services. City may, upon written notice, request changes to the scope of the Services under Exhibit A. If City requests an increase in the scope, City shall notify Service Provider, and, not more than five (5) business days (or other agreed upon period) after receiving the request, Service Provider shall notify City whether or not the change has an associated cost impact. If City approves, City shall issue a change order, which will be executed by the Service Provider. City shall have the right to decrease the scope, and the associated fees will be reduced accordingly.

6. Term and Termination.

6.1 Term. This Agreement is legally binding as of the Effective Date and shall continue for three (3) year (“Term”) unless sooner terminated, as provided for herein. Following the Initial Term and unless otherwise terminated as provided for in this Agreement, this Agreement may be renewed for up to two (2) years, successive one (1) year terms (each, a “Renewal Term”) unless sooner terminated by a party providing the other party with written notice of termination.

6.2 Pricing Escalation. Service Provider is eligible to increase their rates for Software Services annually on the anniversary of the Effective Date equal to the Consumer Price Index for All Urban Consumers (CPI-U) for Riverside-San Bernadino-Ontario, CA area as reported by the Bureau of Labor Statistics.

6.3 Termination for Convenience. Without limiting the right of a party to terminate this Agreement as provided for in this Agreement, a party may terminate this Agreement for convenience upon not less than thirty (30) days prior written notice to the other party.

6.4 Termination for Cause. Without limiting the right of a party to immediately terminate this Agreement for cause as provided for in this Agreement, if either party materially breaches any of its duties or obligations hereunder and such breach is not cured, or the breaching party is not diligently pursuing a cure to the non-breaching party’s sole satisfaction, within thirty (30) calendar days after written notice of the breach, the non-breaching party may terminate this Agreement for cause as of a date specified in such notice.

6.5 Payments upon Termination for Convenience. Upon the termination of this Agreement, City shall pay to Service Provider all undisputed amounts due and payable hereunder, if any, and Service Provider shall pay to City all amounts due and payable hereunder, such as Performance Credits and prepaid fees, if any. As compensation for any administrative costs incurred by Service Provider due to City’s termination for convenience, and unless otherwise agreed upon by the parties, City shall pay, or Service Provider shall retain if fees were prepaid, three (3) months’ worth of additional fees calculated prorata. Any remaining prepaid funds shall be refunded to City.

6.6 Return of City Data. Upon the termination of this Agreement, Service Provider shall, within two (2) business day following the termination of this Agreement, provide City, without charge and without any conditions or contingencies whatsoever (including but not limited to the payment of any fees due to Service Provider), with a final extract of the City Data in the format specified by City. Further, Service Provider shall certify to City the destruction of any City Data within the possession or control of Service Provider, in accordance with Section 12.5, but such destruction shall occur only after the City Data has been returned to City. This Section shall survive the termination of this Agreement. 1113
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7. Transition Services. [OPTIONAL] Provided that this Agreement has not been terminated by Service Provider due to City’s failure to pay any undisputed amount due Service Provider, Service Provider will provide to City and/or to the service provider selected by City (“Successor Service Provider“) assistance reasonably requested by City to effect the orderly transition of the Services, in whole or in part, to City or to Successor Service Provider (“Transition Services”) following the termination of this Agreement, in whole or in part. The Transition Services shall be provided on a time and materials basis and may include: (a) developing a plan for the orderly transition of the terminated Services from Service Provider to City or Successor Service Provider; (b) if required, transferring the City Data to Successor Service Provider; (c) using commercially reasonable efforts to assist City in acquiring any necessary rights to legally and physically access and use any thirdparty technologies and documentation then being used by Service Provider in connection with the Services; (d) using commercially reasonable efforts to make available to City, pursuant to mutually agreeable terms and conditions, any third-party services then being used by Service Provider in connection with the Services; and, (e) such other activities upon which the parties may agree.

Notwithstanding the foregoing, should City terminate this Agreement due to Service Provider’s material breach, City may elect to use the Services for a period of no greater than six (6) months from the date of termination at a reduced rate of twenty (20%) percent off of the then-current Services Fees for the terminated Services. All applicable terms and conditions of this Agreement shall apply to the Transition Services. This Section shall survive the termination of this Agreement.

8. Fees; Billing. City shall be responsible for and shall pay to Service Provider the fees as further described in Exhibit A, subject to the terms and conditions contained in this Agreement. Any sum due Service Provider for the Services for which payment is not otherwise specified shall be due and payable thirty (30) business days after receipt by City of an invoice from Service Provider.

8.1 Billing Procedures. Service Provider shall bill to City the sums due pursuant to Exhibit A by Service Provider’s invoice, which shall contain: (a) City’s purchase order number, if any, and Service Provider’s invoice number; (b) description of Services for which an amount is due; (c) the fees or portion thereof that are due; (d); taxes, if any; (e); any Performance Credits or other credits; and, (f) total amount due. Service Provider shall email invoices to [email protected].

8.2 Taxes. Service Provider represents and warrants that it is an independent contractor for purposes of federal, state, and local taxes. Service Provider agrees that City is not responsible to collect or withhold any such taxes, including income tax withholding and social security contributions, for Service Provider. Any and all taxes, interest, or penalties, including any federal, state, or local withholding or employment taxes, imposed, assessed, or levied as a result of this Agreement shall be paid or withheld by Service Provider.

8.3 Credits. Any amounts due to City, such as a Performance Credit if applicable, from Service Provider may be applied by City, at the sole election of City, against any current or future fees due to Service Provider. Any such amounts that are not so applied by City shall be paid to City by Service Provider within thirty (30) calendar days following City’s request.

This Section shall survive the termination of this Agreement.

8.4 Non-binding Terms. Any terms and conditions included in a Service Provider invoice shall be deemed to be solely for the convenience of the Service Provider, and no such term or condition shall be binding upon the City.

8.5 Auditable Records. Service Provider shall maintain accurate records of all fees billable to, and payments made by, City in a format that will permit audit by City for a period of no less than three (3) years from when a fee was incurred or a payment was made. The foregoing obligation of Service Provider shall survive the termination of this Agreement. For the term of this Agreement, upon City’s written request, Service Provider shall provide City with a copy of its annual American Institute of Certified Public Accountants Service Organization 1114
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Control (SOC) 1 type 2 report and SOC 2 type 2 report (for all Trust Services Principles), or successor form of SOC reports.

8.6 Billing Reviews by Third-Parties. For purposes of determining the competitiveness and appropriateness of fees charged to City by Service Provider, City is entitled to disclose to a third-party this Agreement, and any other data pertaining to fees paid or payable by City to Service Provider.

8.7 No Suspension of Services. Service Provider shall not suspend any part of the Services where: (a) City is reasonably disputing any amount due to Service Provider; or, (b) any unpaid but undisputed amount due to Service Provider is less than ninety (90) business days in arrears.

9. Representations and Warranties.

9.1 Mutual. City and Service Provider each represent and warrant that:

9.1.1 City is a public entity, and Service Provider is a business, duly incorporated or established, validly existing, and in good standing under the laws of its state of incorporation;

9.1.2 it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement;

9.1.3 the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles;

9.1.4 it shall comply with all applicable federal, state, local, or other laws and regulations applicable to the performance by it of its obligations under this Agreement and shall obtain all applicable permits and licenses required of it in connection with its obligations under this Agreement; and,

9.1.5 there is no outstanding litigation, arbitrated matter or other dispute to which it is a party which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on its ability to fulfill its obligations under this Agreement.

9.2 By Service Provider. Service Provider represents and warrants that:

9.2.1 it is in the business of providing the Services;

9.2.2 the Services are fit for the ordinary purposes for which they will be used;

9.2.3 it is possessed of superior knowledge with respect to the Services;

9.2.4 it acknowledges that City is relying on its representation of its experience and expert knowledge, and that any substantial misrepresentation may result in damage to City;

9.2.5 it knows the particular purpose for which the Services are required by City; 1115
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9.2.6 it is the lawful licensee or owner of the Services (excluding any City Data therein) and has all the necessary rights in the Services to provide the Services to City;

9.2.7 the Services and any other work performed by Service Provider hereunder shall not infringe upon any United States or foreign copyright, patent, trade secret, or other intellectual proprietary right, or misappropriate any trade secret, of any third-party, and that it has neither assigned nor otherwise entered into an agreement by which it purports to assign or transfer any right, title, or interest to any technology or intellectual property right that would conflict with its obligations under this Agreement;

9.2.8 it shall disclose any third-party (which shall, for purposes of this Agreement, be deemed a subcontractor) whose intellectual property is incorporated into the Services or who is necessary for the performance of the Services and it shall maintain in-force written agreements with such third-party, if any, for the term of this Agreement;

9.2.9 it has the expertise to perform the Services in a competent, workmanlike, and professional manner and in accordance with the highest professional standards;

9.2.10 it will use its best efforts, but not less than commercially reasonable efforts, to ensure that no computer viruses, worms, malware, or similar items (collectively, a “Virus”) are introduced into City’s computing and network environment by the Services, and that, where it transfers a Virus to City through the Services, it shall reimburse City the actual, documented cost incurred by City to remove and/or recover from the Virus, including the costs of persons employed by City to perform such services;

9.2.11 the Services are free of any mechanism which may disable the Services and Service Provider warrants that no loss of City Data will result from such items if present in the Services;

9.2.12 in the case of City’s reasonable dispute of any Service Provider invoice, it shall not withhold the performance of Services, including, without limitation, access and use of the Services, Technical Support, Maintenance, and extract of City Data; and,

9.2.13 the Services will conform in all material respects to the specifications, functions, descriptions, standards, and criteria set forth in Exhibit A and the Documentation.

10. City Data.

10.1 Ownership. City’s data (“City Data,” which shall also be known and treated by Service Provider as Confidential Information) shall include City’s and all other authorized users’ data, including personally identifiable information (“PII“) if any, collected, accessed, used, processed, stored, generated, or otherwise made accessible to Service Provider, as the result of or in connection with the City’s use of the Services. PII includes, without limitation, any information that identifies an individual, such as an individual’s social security number or other government-issued identification number, date of birth, address, telephone number, biometric data, mother’s maiden name, email address, credit card information, or an individual’s name in combination with any other of the elements listed herein. Personal information also means “personal information” as defined in California Civil Code Section 1798.140(o). Except where subject to a third party’s intellectual property rights, all City 1116
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Data is and shall remain the sole and exclusive property of City and all right, title, and interest in the same belongs to City. This Section shall survive the termination of this Agreement.

10.2 Service Provider Use of City Data. Service Provider is provided a limited license to access City Data for the sole and exclusive purpose of providing the Services, including a license to collect, process, store, generate, and display City Data only to the extent necessary in the providing of the Services. Service Provider shall: (a) keep and maintain City Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss; (b) use and disclose City Data solely and exclusively for the purpose of providing the Services, such use and disclosure being in accordance with this Agreement, and applicable law; (c) allow access to City Data only to those employees and authorized agents of Service Provider who are directly involved with and responsible for providing the Services; and, (d) not use, sell, rent, transfer, distribute, or otherwise disclose or make available City Data for Service Provider’s own purposes or for the benefit of anyone other than City without City’s prior written consent. Service Provider may not utilize aggregated data derived from City Data unless it has been made “anonymous” using technology that irreversibly alters data in such a way that the data subject can no longer be identified directly or indirectly, either by the data controller alone or in collaboration with any other party, and such data is thereby rendered “anonymized data”, as generally described in ISO 25237:2017, Sections 3.2 and 3.3.

10.3 Access to, and Extraction of City Data. City shall have full and complete access to, and ability to download, its City Data 24 hours per day, 7 days per week, except during authorized periods of maintenance by Service Provider. Further, Service Provider shall, within one (1) business day of City’s request, provide City, without charge and without any conditions or contingencies whatsoever (including, but not limited to, the payment of any fees due to Service Provider), an extract of the City Data in the format reasonably specified by City. In the event City gives Service Provider written notice of a “litigation hold”, then as to all data identified in such notice, Service Provider shall, at no additional cost to City, isolate and preserve all such data pending receipt of further direction from the City.

10.4 Backup and Recovery of City Data. As a part of the Services, Service Provider is responsible for maintaining a backup of City Data and providing an orderly and timely recovery of such data in the event that the Services may be interrupted. Unless otherwise described in Exhibit A, Service Provider shall maintain a contemporaneous backup of City Data that can be recovered within two (2) hours at any point in time. Additionally, Service Provider shall store a backup of City Data in an off-site (but within the continental United States) “hardened” facility no less than daily, maintaining the security of City Data, the security requirements of which are further described herein. Any backups of City Data shall not be considered in calculating storage used by City.

10.5 Loss or Unauthorized Access to Data. In the event of any act, error or omission, negligence, misconduct, or breach that permits any unauthorized access to, or that compromises or is suspected to compromise the security, confidentiality, or integrity of City Data or the physical, technical, administrative, or organizational safeguards put in place by Service Provider that relate to the protection of the security, confidentiality, or integrity of City Data, Service Provider shall, as applicable: (a) notify City as soon as practicable but no later than twenty-four (24) hours of becoming aware of such occurrence; (b) cooperate with City in investigating the occurrence, including making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law or as otherwise required by City; (c) in the case of PII, at City’s sole election, (i) notify the affected individuals who comprise the PII as soon as practicable but no later than is required to comply with applicable law including, but not limited to, the provisions of California Civil Code Section 1798.82 and Section 1798.100, et seq., or, in the absence of any legally required 1117
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notification period, within five (5) calendar days of the occurrence; or, (ii) reimburse City for any costs in notifying the affected individuals; (d) in the case of PII, provide third-party credit and identity monitoring services to each of the affected individuals who comprise the PII for the period required to comply with applicable law, or, in the absence of any legally required monitoring services, for no less than twelve (12) months following the date of notification to such individuals; (e) perform or take any other actions required to comply with applicable law as a result of the occurrence; (f) without limiting Service Provider’s obligations of indemnification as further described in this Agreement, indemnify, defend, and hold harmless City for any and all Claims (as defined herein), including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from City in connection with the occurrence up to the limits of Service Provider’s Cyber Liability policy required herein; (g) be responsible for recreating lost City Data in the manner and on the schedule set by City without charge to City; and, (h) provide to City a detailed plan within ten (10) calendar days of the occurrence describing the measures Service Provider will undertake to prevent a future occurrence.

Notification to affected individuals, as described above, shall comply with applicable law, be written in plain language, and contain, at a minimum: name and contact information of Service Provider’s representative; a description of the nature of the loss; a list of the types of data involved; the known or approximate date of the loss; how such loss may affect the affected individual; what steps Service Provider has taken to protect the affected individual; what steps the affected individual can take to protect himself or herself; contact information for major credit card reporting agencies; and, information regarding the credit and identity monitoring services to be provided by Service Provider. This Section shall survive the termination of this Agreement.

11. Non-Disclosure of Confidential Information. The parties acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential, privileged communication not intended to be disclosed to third parties. The provisions of this Section shall survive the termination of this Agreement.

11.1 Meaning of Confidential Information. For the purposes of this Agreement, the term “Confidential Information” shall mean all information and documentation of a party that: (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; and, (c) should reasonably be recognized as confidential information of the disclosing party. The term “Confidential Information” does not include any information or documentation that was: (a) already in the possession of the receiving party without an obligation of confidentiality; (b) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (c) obtained from a source other than the disclosing party without an obligation of confidentiality; or, (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party). For purposes of this Agreement, in all cases and for all matters, City Data shall be deemed to be Confidential Information.

11.2 Obligation of Confidentiality. The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement, or as required by law including the California Public Records Act, subpoena, or court order. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential.
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11.3 Cooperation to Prevent Disclosure of Confidential Information. Each party shall use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.

11.4 Remedies for Breach of Obligation of Confidentiality. Each party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages.

Accordingly, a party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available, to include, in the case of City, at the sole election of City, the immediate termination, without liability to City, of this Agreement.

11.5 Surrender of Confidential Information upon Termination. Upon termination or expiration of this Agreement, in whole or in part, each party shall, within five (5) calendar days from the date of termination, return to the other party any and all Confidential Information received from the other party, or created or received by a party on behalf of the other party, which is in such party’s possession, custody, or control; provided, however, that Service Provider shall return City Data to City following the timeframe and procedure described further in this Agreement. Should Service Provider or City determine that the return of any City Data or non-City Data Confidential Information is not feasible, Service Provider shall destroy the data comprising such Confidential Information in compliance with the most current version of NIST standard SP800-88, or other standard acceptable to the City, and shall certify the same in writing within five (5) calendar days from the date of termination to the City.

12. Data Privacy and Information Security.

12.1 Undertaking by Service Provider. Without limiting Service Provider’s obligation of confidentiality as further described herein, Service Provider shall be responsible for establishing, maintaining, and providing a written description to City of, a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that comply with or are substantial similar to the security controls identified in the current version of NIST SP800-53, and that is designed to: (a) ensure the security and confidentiality of the City Data; (b) protect against any anticipated threats or hazards to the security or integrity of the City Data; (c) protect against unauthorized disclosure, access to, or use of the City Data; (d) ensure the proper disposal of City Data; and, (e) ensure that all employees, agents, and subcontractors of Service Provider, if any, comply with all of the foregoing. In no case shall the safeguards of Service Provider’s data privacy and information security program used to protect City Data be less stringent than the safeguards used by Service Provider for its own data.

If the Services include handling credit card information, then the Service Provider shall comply at all times with all applicable Payment Card Industry Data Security Standards (PCI-DSS). Service Provider agrees and warrants that it is responsible for the security of “cardholder data” that Service Provider possesses, stores, processes or transmits on behalf of the City, and for any impact on the security of City’s cardholder data environment adversely affected by any failure of the Service Provider to maintain compliance with provisions of the PCI-DSS applicable to the Services.

At all times herein, Service Provider shall maintain, handle, transmit, and store City Data utilizing transport layer security (TLS) level 1.3, or higher successor standard thereto, or otherwise as required by the City.
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At all times herein, Service Provider shall maintain, handle, transmit, and store City Data in encrypted form meeting the requirements of Federal Information Processing Standard (FIPS) 140-3, or successor standard thereto, or otherwise as required by the City.

12.2 Audit by Service Provider. No less than annually, Service Provider shall conduct a comprehensive independent third-party audit of its data privacy and information security program and provide such audit findings to City.

12.3 Right of Audit by City. Without limiting any other audit rights of City, City shall have the right to review Service Provider’s data privacy and information security program prior to the commencement of Services and from time to time during the term of this Agreement.

During the providing of the Services, on an ongoing basis from time to time and without notice, City, at its own expense, shall be entitled to perform, or to have performed, an onsite audit of Service Provider’s data privacy and information security program. In lieu of an on-site audit, upon request by City, Service Provider agrees to complete, within forty-five (45 days) of receipt, an audit questionnaire provided by City regarding Service Provider’s data privacy and information security program.

12.4 Audit Findings. Service Provider shall implement any required safeguards as identified by City or by any audit of Service Provider’s data privacy and information security program.

12.5 City’s Right to Terminate for Deficiencies. City reserves the right, at its sole election, to immediately terminate this Agreement without limitation and without liability if City reasonably determines that Service Provider fails or has failed to meet its obligations under this Section.

13. Proprietary Rights.

13.1 Pre-existing Materials. City acknowledges that, in the course of performing the Services, Service Provider may use software and related processes, instructions, methods, and techniques that have been previously developed by Service Provider (collectively, the “Preexisting Materials,” which shall include the Services) and that the same shall remain the sole and exclusive property of Service Provider.

13.2 No License. Except as expressly set forth herein, no license is granted by either party to the other with respect to the Confidential Information or Pre-existing Materials. Nothing in this Agreement shall be construed to grant to either party any ownership or other interest, in the Confidential Information or Pre-existing Materials, except as may be provided under a license specifically applicable to such Confidential Information or Pre-existing Materials.

13.3 The provisions of this Section shall survive the termination of this Agreement.

14. Indemnification; Limitation of Liability; Insurance.

14.1 General Indemnification. To the maximum extent permitted by law, Service Provider agrees to indemnify, defend, and hold harmless City and its elected officials, officers, directors, agents, attorneys and employees (each, an “Indemnitee“) from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, or judgments (each, a “Claim,” and collectively, the “Claims“), including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to any act, error or omission, negligence, or misconduct of Service Provider, its officers, directors, agents, employees, and/or subcontractors, during the performance of this Agreement, including, without limitation, Claims arising out of or 1120
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relating to: (a) bodily injury (including death) or damage to tangible personal or real property; (b) any payment required to be paid to subcontractors, if any, of Service Provider; (c) any material misrepresentation or breach of warranty set forth in this Agreement; (d) Service Provider’s professional services; and/or (e) any material breach of any covenant set forth in this Agreement; provided, however, that the foregoing indemnity shall not apply to the extent the applicable Claim resulted from the negligent acts or omissions, or willful misconduct, of an Indemnitee as determined by agreement of the parties or by a final judicial decision.

To the maximum extent permitted by law, Service Provider shall indemnify, defend and hold each of the Indemnitees free and harmless, and pay reasonable attorneys’ fees and costs, with respect to any and all Claims to the extent arising out of, related to, or incurred in connection with any destruction, or unauthorized access to, use, or theft of City Data (collectively, “cyber theft”) provided, however, that Service Provider’s liability for cyber theft shall be limited to the cyber liability insurance policy limits set forth in this Agreement.

14.2 Proprietary Rights Indemnification. Service Provider agrees to indemnify, defend, and hold harmless Indemnitees from and against any and all Claims, including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to the Services allegedly or actually infringing or misappropriating any United States or foreign patent, copyright, trade secret, trademark, or other proprietary right. In the event that Service Provider is enjoined from providing the Services and such injunction is not dissolved within thirty (30) calendar days, or in the event that City is adjudged, in any final order of a court of competent jurisdiction from which no appeal is taken, to have infringed upon or misappropriated any patent, copyright, trade secret, trademark, or other proprietary right in the access or use of the Services in compliance with this Agreement, then Service Provider shall, at its expense: (a) obtain for City the right to continue using such Services; (b) replace or modify such Services so that they do not infringe upon or misappropriate such proprietary right and is free to be used by City; or, (c) in the event that Service Provider is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, Service Provider shall reimburse to City any prepaid fees and the full cost associated with any Transition Services.

14.3 Indemnification Procedures. Promptly after receipt by City of a threat, notice, or filing of any Claim against an Indemnitee, City shall give notice thereof to Service Provider, provided that failure to give or delay in giving such notice shall not relieve Service Provider of any liability it may have to the Indemnitee except to the extent that Service Provider demonstrates that the defense of the Claim is prejudiced thereby. Service Provider shall have sole control of the defense and of all negotiations for settlement of a Claim and City shall not independently defend or respond to a Claim; provided, however, that: (a) City may defend or respond to a Claim, at Service Provider’s expense, if City’s counsel determines, in its sole discretion, that such defense or response is necessary to preclude a default judgment from being entered against an Indemnitee; and, (b) City shall have the right, at its own expense, to monitor Service Provider’s defense of a Claim. At Service Provider’s request, City shall reasonably cooperate with Service Provider in defending against or settling a Claim; provided, however, that Service Provider shall reimburse City for all reasonable out-of-pocket costs incurred by City (including, without limitation, reasonable attorneys’ fees and expenses) in providing such cooperation.

14.4 Third-Party Beneficiaries. Nothing, express or implied, in this Agreement is intended to benefit, or to create or be construed to create any rights of enforcement in any persons or entities who are neither signatories to this Agreement nor Indemnitees. 1121
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14.5 Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION SET FORTH

HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND /

OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE FOREGOING EXCULPATION OF

LIABILITY SHALL NOT APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY. A

PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES ARISING

OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF A PARTY,

WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE,

TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS

AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT FOR THE PREVIOUS TWO (2) YEARS, AND PROVIDED, FURTHER, THAT THE FOREGOING LIMITATIONS SHALL NOT APPLY TO: (A) A PARTY’S

OBLIGATIONS OF INDEMNIFICATION, AS FURTHER DESCRIBED IN THIS AGREEMENT; (B) DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR, (C) A PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY, AS FURTHER DESCRIBED IN THIS AGREEMENT. This Section shall survive the termination of this Agreement.

14.6 Insurance. Unless otherwise approved in writing by City’s risk manager, Service Provider shall, at its own expense, procure and maintain in full force and effect during the term of this Agreement, policies of insurance, of the types and in the minimum amounts as follows, with responsible insurance carriers duly admitted and qualified in California covering the operations of Service Provider, pursuant to this Agreement: commercial general liability [and auto liability if any of the Services will be performed on City property] ($1,000,000 per occurrence [and/or accident], $2,000,000 aggregate); excess liability ($2,000,000 per occurrence, $2,000,000 aggregate); workers’ compensation (statutory limits) and employers’ liability ($500,000 per accident); cyber liability ($2,000,000 per occurrence) providing protection against claims and liabilities arising from: (i) errors and omissions in connection with maintaining security of City Data; (ii) data breach including theft, destruction, and/or unauthorized use of City Data; (iii) identity theft including bank charges assessed; and (iv) violation of privacy rights due to a breach of City Data; and professional liability ($1,000,000 per occurrence, $2,000,000 aggregate). Any of the foregoing policy limits shall be subject to modification by the City’s risk manager upon thirty (30) days prior, written notice to Service Provider, and at any time prior to commencement of the Services.

The Indemnitees shall be named as additional insureds in the commercial general, auto liability if required, cyber, and excess liability policies which shall contain standard cross liability clauses, using forms of endorsements acceptable to City’s risk manager. Service Provider shall cause the liability it assumed under this Agreement to be specifically insured under the contractual liability section of the liability insurance policies. The liability policies shall be primary without right of contribution from any Indemnitee, and Service Provider waives all rights of subrogation with respect to the CGL, auto, and cyber liability policies.

Such policies shall require that City be given no less than thirty (30) calendar days prior written notice of any cancellation thereof or material change therein. City shall have the right to request an adjustment of the limits of liability for commercial general, auto, cyber, and excess liability, and/or professional liability insurance if and as Service Provider’s exposure to City increases. Service Provider shall provide City with certificates of insurance and original endorsements, evidencing all of the above coverage, including all special requirements specifically noted above, and shall provide City with certificates of insurance evidencing renewal or substitution of such insurance thirty (30) calendar days prior to the effective date of such renewal or substitution. Any “claims made” professional liability policy shall be endorsed to provide an extended reporting period of not less than three (3) years.
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15. General.

15.1 Relationship between City and Service Provider. Service Provider represents and warrants that it is an independent contractor with no authority to contract for City or in any way to bind or to commit City to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of City. Under no circumstances shall Service Provider, or any of its staff, if any, hold itself out as or be considered an agent employee, joint venture, or partner of City. In recognition of Service Provider’s status as an independent contractor, City shall carry no Workers’ Compensation insurance or any health or accident insurance to cover Service Provider or Service Provider’s agents or staff, if any. City shall not pay any contributions to Social Security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, nor provide any other contributions or benefits which might be expected in an employer-employee relationship. Neither Service Provider nor its staff, if any, shall be eligible for, participate in, or accrue any direct or indirect benefit under any other compensation, benefit, or pension plan of City.

15.2 Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the federal laws of the United States of America. Service Provider hereby consents and submits to the jurisdiction and forum of the state and federal courts in the County of Riverside, State of California, without regard for change of venue laws, in all questions and controversies arising out of this Agreement.

15.3 Attorneys’ Fees and Costs. In any arbitration, litigation, or other proceeding, informal or formal, by which one party either seeks to enforce this Agreement or seeks a declaration of any rights or obligations under this Agreement, the non-prevailing party shall pay the prevailing party’s costs and expenses, including but not limited to, reasonable attorneys’ fees.

15.4 Compliance with Laws; City Policies and Procedures. Both parties agree to comply with all applicable federal, state, and local laws, executive orders and regulations issued, where applicable. Service Provider shall comply with City policies and procedures where the same are posted, conveyed, or otherwise made available to Service Provider.

15.5 Cooperation. Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. Each party will cooperate with the other by, among other things, making available, as reasonably requested by the other, management decisions, information, approvals, and acceptances in order that each party may properly accomplish its obligations and responsibilities hereunder. Service Provider will cooperate with any City supplier performing services, and all parties supplying hardware, software, communication services, and other services and products to City, including, without limitation, the Successor Service Provider. Service Provider agrees to cooperate with such suppliers, and shall not commit or permit any act which may interfere with the performance of services by any such supplier.

15.6 Force Majeure; Excused Performance. Neither party shall be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control.

Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, pandemic, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, or failures in communication lines and routes not under a party’s control, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control 1123
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of the delayed party. However, the delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. Where Service Provider fails to use its best efforts to minimize such delays, the delays shall be included in the determination of Service Level achievement. The delayed party must notify the other party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this Section, and inform the other party of its plans to resume performance. A force majeure event does not excuse Service Provider from providing Services and fulfilling its responsibilities relating to the requirements of backup and recovery of City Data. In no event shall any of the following constitute a force majeure event: (a) failure, inadequate performance, or unavailability of Service Provider’s subcontractors, if any; or, (b) configuration changes, other changes, Viruses, or other errors or omissions introduced, or permitted to be introduced, by Service Provider that result in an outage or inability for City to access or use the Services. Within thirty (30) calendar days following the Effective Date and on an annual basis thereafter until the termination of this Agreement, Service Provider shall provide its then-current business continuity plan (“Business Continuity Plan”) to City upon City’s request. The Business Continuity Plan shall include: (a) Services and City Data backup and recovery procedures, including procedures and resources for disaster recovery; (b) fail-over procedures; and, (c) how Service Provider will interact with its business continuity suppliers, if any. Service Provider shall test its Business Continuity Plan on an annual basis until the termination of this Agreement and shall provide the test results to City upon City’s request.

15.7 Advertising and Publicity. Service Provider shall not refer to City directly or indirectly in any advertisement, news release, or publication, or use any City logo, seal or mark, without prior written approval from City.

15.8 No Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.

15.9 Notices. Any notice given pursuant to this Agreement shall be in writing and shall be given by personal service or by United States certified mail, return receipt requested, postage prepaid to the addresses appearing at the end of this Agreement, or as changed through written notice to the other party. Notice given by personal service shall be deemed effective on the date it is delivered to the addressee, and notice mailed shall be deemed effective on the third day following its placement in the mail addressed to the addressee.

15.10 Assignment of Agreement. This Agreement and the obligations of Service Provider hereunder are personal to Service Provider. Neither Service Provider nor any successor, receiver, or assignee of Service Provider shall directly or indirectly assign this Agreement or the rights or duties created by this Agreement, whether such assignment is effected in connection with a sale of Service Provider’s assets or stock or through merger, an insolvency proceeding or otherwise, without the prior written consent of City. In the case of an assignment by Service Provider, Service Provider represents and warrants that it has all requisite rights and power to transfer any agreements or other rights with third-parties whose software is incorporated into the Services or who are necessary for the performance and use of the Services. Service Provider shall not subcontract performance of any of the Services without City’s prior, written, consent. Use of third parties for cloud based storage in compliance with this Agreement shall not be deemed “subcontracting.”

15.11 Time is of the Essence. Time is of the essence in every provision of this Agreement in which time for performance is a factor.

15.12 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the 1124
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same Agreement. The parties agree that a facsimile signature may substitute for and have the same legal effect as the original signature.

15.13 Entire Agreement. This Agreement and any and all attached exhibits, each of which is incorporated by reference herein, constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between City and Service Provider as to the subject matter hereof. No representation or promise not expressly set forth herein shall be binding. The provisions of this Agreement shall govern over any inconsistent or conflicting provisions contained in any exhibit hereto, or any document incorporated by reference herein. This Agreement may only be amended by an instrument in writing signed by the parties. This Agreement shall be construed without regard to the party that drafted it. Any ambiguity shall not be interpreted against either party and shall, instead, be resolved in accordance with other applicable rules concerning the interpretation of contracts.

15.14 Cumulative Remedies. All rights and remedies of City herein shall be in addition to all other rights and remedies available at law or in equity, including, without limitation, specific performance against Service Provider for the enforcement of this Agreement, and temporary and permanent injunctive relief.

Executed on the dates set forth below by the undersigned authorized representative of City and Service Provider to be effective as of the Effective Date.

CITY OF BANNING________________ (CITY)
By:

Name:

Title:

Date:

Address for Notice: 99 E. Ramsey Street, Banning, CA 92220 SATEC, Inc. (SERVICE PROVIDER)
By:

Name:

Title:

Date:

Address for Notice: 10 Milltown Court, Union, NJ 07083
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EXHIBIT A

STATEMENT OF SERVICES, SUPPORT, AND SERVICE LEVEL AGREEMENT This Exhibit A - Statement of Services, Support, and Service Level Agreement shall be incorporated in and governed by the terms of that certain Master Software as a Service Agreement by and between THE CITY OF BANNING (“City“) and SATEC, Inc. (“Service Provider”) dated February 1, 2023 (“Agreement”). In the event of a conflict between the provisions contained in the Agreement and those contained in this Exhibit A, the provisions contained in the Agreement shall prevail.

Services Description.

Service Provider will perform the following Accepted Proposal in connection with providing a data acquisition, storage, analytic, and meter data interface software as a service for the City of Banning Electric Utility Department (“Department”). The software solution, hereby known as Expertpower software, provides a metering software interface between the iTRON OpenWay API WebService and Milsoft’s enterprise software suite consisting of billing software, Customer Information System (CIS), and Outage Management Software (OMS). Expertpower software as a service is provided to the Department as a supported software solution including installation, implementation, and project management services and solution.

1. Data Management Software Service as a Solution:
a. Data Acquisition Daily Reads: Expertpower will poll daily register data from City iTRON meters via OpenWay API software interface.
b. Data Acquisition Interval Data: Expertpower will poll interval register data from City iTRON meters via OpenWay API software interface.
c. Data Storage: Expertpower will provide both Daily Read and Interval Energy data storage for a period of 3 years of interval time-stamped history for energy values and demand values. d. DRE and Billing Reports: Expertpower will provide an interface for creating energy and demand readings based on City configurable meter reading Route Schedules. The user interface shall incorporate a configurable schedule for automatically creating the monthly Route reading files, known as DRE files. An error exception report shall be included denoting problematic data. e. Connect/Disconnect Services: Expertpower shall provide an interface to manually initiate meter Connect and Disconnect functions to cause an iTRON meter to perform the requested Connect/Disconnect command function, selectable by meter number with a confirmation button to initiate the job be sent to the OpenWay API.
f. Manual Data Acquisition: Expertpower shall provide an interface for manually requesting meter readings and meter interval readings, selectable by meter number, with a confirmation button to initiate the polling job to be sent to the OpenWay API.
g. Expertpower Configurations: Expertpower shall store City meter data including associated data of:

Location, Meter Number, Serial Number, Address, Cycle number, Route number, City, Zip Code, and all associated ERT ID’s categorized by energy or demand type. Energy types shall include Delivered, Received, and Unidirectional totalizers, as well as corresponding demand readings, including Watt-Hour, VAR-Hour, and VA-Hour readings. This data shall be configurable via worksheet configuration file upload utilities, as well as graphical interface configuration screens within the Expertpower software. The data should be interpolated to match all meter configurations in Itron. 1126
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h. Expertpower Consumption and Analysis: Expertpower shall include tabular and graphical history of meter energy and max demands values. Data shall be accessible via web-based interface screens as well as via configurable reporting tools.
i. Expertpower Transformer Analysis: Expertpower shall include the capability to configure Transformer objects, known as Devices, to represent both iTRON meters, as well as logical Transformers within the software. Data analysis shall be included for Transformer usage as a programmable limit with percentage overload reporting.
j. Expertpower shall store iTRON meter Events (alarms) and represent these as time-stamped alarm conditions summarized by selectable groups or individual meters. Expertpower shall have the option to view these Events by Geographical mapping tools.
k. Expertpower Website: The City shall be able to assign users to access the Expertpower software interface using a secure HTTPS web browser. User logins and passwords shall be used for restricting access to the data, with administrator control over adding/removing users. Configurable user roles limiting permissions within the software shall be assignable for each user account.

2. Support and Service:
a. Service Provider Support: Included with the Expertpower software license is Service Provider professional technical support. Unlimited remote technical support by phone is available to City during regular business hours Monday through Friday, Pacific Standard Time.

3. Additional Hardware and/or Services:
a. City may, subject to written amendment of this Agreement, procure metering hardware and/or additional Service Provider support, commissioning, and/or field-services at Service Provider’s quoted rates. Service Provider guarantees that quoted rates will common rates and prices equivalent to standard industry pricing quoted to all Service Provider direct customers. Service Provider refers to this pricing as factory-direct pricing sold directly by and supported from Service Provider out of Union New Jersey. All Service Provider hardware comes standard with a factory 3-year warranty. Standard purchasing terms, lead times, and freight charges will apply.
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Start Date and End Date.

Expertpower Software annual license from February 1, 2024, through January 31, 2025 = $79,115.40.

Services Fees.

SCHEDULE OF SOFTWARE LICENSE FEE’S

1.Existing Open Invoices as of Agreement initiation:

2. Explanation of Recurring Expertpower Software Annual License:

Expertpower software license is provided as annual software use license, invoiced on a per Device charge.

Example:

For the Term Per Device = $5.40 per Term, per Device
(Calculated from $0.45 per month, per device = $0.45 x 12 months = $5.40 per year per device) Example: City of Banning Electric Utility had 14,651 Devices as of January 20, 2024 Example calculation: $5.40 x 14,651 = $79,115.40 Annual License

3. Licensed Device Quantity:

Service Provider will provide a report to City, on an annual basis, pertaining to the quantity of Devices in use as of the end of the 10th month of the Annual License Period, denoting the quantity of Devices in use.

City will have 60 days to refute the quantity.

Service Provider will Invoice the next Annual License period based on the quantity of Devices.

4. Significant License Changes during the Annual License Period:

In the event of a significant variance in quantity of Devices during the Annual License period, where the quantity of Devices increases or decreases by more than 10%, either City or Service Provider may request a modification to the Annual License amount by re-calculating using the current quantity of Devices and pro-rating the remaining license period accordingly.

5. Definition of Device in Expertpower:

A Device is defined as a single metering data device, whether logical or physical, consisting of an energy or volumetric reading of a commodity such as electricity, water, or gas. Typical devices used by the City are iTRON electrical power meters. A Device may be further defined as a single electrical meter, consisting of kWh, kVARh, kVAh, and related electrical parameters such as Volts, Amps, Watts, VARs, VA, and Frequency. A Device may also be a Virtual Meter, whereas a logical association by additive/subtractive/complex formula’s representing one or more physical or other virtual meters. 1128
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An example of additional devices include if the City adds Virtual Devices to represent Transformers, or add Service Provider electrical power quality meters, or similar data driven objects to Expertpower, such as for purposes of Transformer analytics, the quantity of Devices that need to be licensed will increase. The City should take into account the probability of future iTRON meters as well as quantity of distribution transformers when budgeting for future software licenses. 1129

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Stacy Bouslog, Customer Service Manager
Lincoln Bogard, Administrative Services Director
MEETING DATE: February 13, 2024
SUBJECT: Consideration of Resolution 2024-28, Approving an InfoSend Master Service Agreement to Provide Data-Processing, Printing, and Mailing Services for Utility Billing
RECOMMENDATION:

City staff recommends that the City Council adopt Resolution 2024-28, renewing a contract with InfoSend with an initial 3-year term and two (2) consecutive (1) year term renewal options with InfoSend for data-processing, printing, and mailing services related to Utility Billing and community outreach.

BACKGROUND:

Since August of 2012, the utility billing division has utilized InfoSend to produce a variety of mailings on behalf of the City, including utility bills, reminder notices, announcements, rate change advisories, water quality program notices, awareness/education campaign notices, final bills and penalties/collections notices. InfoSend services include paper bill processing, printing, and entire mailing process, along with address validation for Presorted First Class rates, bar coding, printing, folding, envelope stuffing and postage for every item.

InfoSend pays the cost of postage for mailing all bills and notices upfront and then passes this cost to the City in their invoicing, with no mark-up to the City. The City is responsible for this postage, regardless of the vendor providing the printing and support services. The postage costs related to this contract are exempt from Procurement and Council Approval per the City's Purchasing Policy B-30, Section 3-105 (6). Postage costs have been projected over the five (5) year term with allowances for possible cost increase from the United States Post Office.

JUSTIFICATION:

On an annual basis, InfoSend produces and mails approximately 185,000 bills (Utility and Delinquent bills) and other notices on behalf of the City, as depicted in the chart below. Without the expertise of InfoSend, the City would not be able to produce, assemble and mail the current volume of utility bills and notices in-house. To perform this task in-house would require expensive machinery to print, stuff, seal, postage pre-sorting software and staff time, which is not cost effective in today’s environment, while services such as InfoSend exist.

The City has been utilizing the services of InfoSend for fourteen years and has been very pleased with the excellent service they provided during this time. InfoSend is also located in Southern California, which results in City residents receiving their bills within a few days. Previously, the City had utilized the services of a different provider, located out of state, and resulted in unsatisfactory results. In order to maintain current business processes, consistency and quality of service, City staff would like to renew 1130
the contract with InfoSend by executing an updated contract as of 2024, per the Recommendation above.

FISCAL IMPACT:

Funds for this contract during FY 2023-24 time-period have been allocated and approved within the FY 2023-24 budget. The anticipated expenses in the chart below through 11/2028, will be requested during future City budget cycles, which includes anticipated Proposition 218 noticing requirements. This five (5) year contract not to exceed $456,812.00 (postage does not require approval (reference: B-30 Policy Section 3-105(6)) for ease of understanding is included below).

Time Period
12/2023 -
11/2024
12/2024 -
11/2025
12/2025 -
11/2026
12/2026 -
11/2027
12/2027 -
11/2028
INFOSEND Year 1 Year 2 Year 3 Year 4 Year 5
Utility Billing Division $ 38,000.00 $ 39,900.00 $ 41,895.00 $ 43,989.00 $ 46,190.00 Postage $ 86,000.00 $ 90,300.00 $ 94,815.00 $ 99,555.00 $ 104,500.00 Electric - Public Benefits $ 10,000.00 $ 10,500.00 $ 11,025.00 $ 11,576.00 $ 12,155.00 Electric Rate Notifications $ 3,000.00 $ 3,150.00 $ 3,307.00 $ 3,475.00 $ 3,650.00 Street Division Notifications $ 5,000.00 $ 5,000.00 $ 5,500.00 $ 5,500.00 $ 6,000.00 Water & Wastewater
Notifications
$ 10,000.00 $ 10,000.00 $ 11,000.00 $ 11,000.00 $ 12,000.00 Prop 218 Water/Wastewater
Requirements
$ 20,000.00
Transit Notifications $ 5,000.00 $ 5,000.00 $ 5,500.00 $ 5,500.00 $ 6,000.00 Refuse Outreach $ 5,000.00 $ 5,000.00 $ 5,500.00 $ 5,500.00 $ 6,000.00 Prop 218 Refuse Rate
Requirements
$ 20,000.00
TOTALS $ 162,000 $ 168,850 $ 178,542 $226,095 $196,495
ALTERNATIVES:

1. Approve Resolution as recommended.

2. Approve Resolution with amendments.

3. Not approve Resolution and provide alternative direction to staff.

ATTACHMENTS:

1. Resolution 2024-28.docx

2. City of Banning_InfoSend_MSA RW Revisions 112 723.docx

3. City of Banning InfoSend Exhibits A-C 112723.docx

4. Sole Source Memorandum 06-28-17.pdf
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Resolution 2024-28

Page 1 of 4 ends

Banning City CouncilFebruary 13, 2024

Banning City Council
February 13, 2024