Agenda packet, regular meeting, second session — Banning City Council, May 14, 2024 (part 4 of 6)

RESOLUTION 2024-71

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, APPROVING A THREE (3) YEAR CONTRACT WITH OPTION TO EXTEND FOR TWO (2)

ADDITIONAL YEARS WITH NHA ADVISORS, LLC FOR MUNICIPAL ADVISORY SERVICES

THAT WILL BE FUNDED VIA TASK ORDERS PER PROCUREMENT POLICY REQUIREMENTS AND APPROVING AN INITIAL TASK ORDER FOR $100,000 TO

EVALUATE AND ASSESS FINANCING AND OTHER OPTIONS FOR THE ELECTRIC

DEPARTMENT
WHEREAS, the City does not currently have a contract with a municipal advisor; and WHEREAS, municipal advisory services include financial planning and modeling, market analysis, debt management and implementation, ballot initiatives, and other value added services; and
WHEREAS, the City expects to issue debt for Wastewater, Water, and Electric in the next five (5) years; and
WHEREAS, financial modeling, evaluation, and assessment of financing needs or alternatives are needed citywide; and
WHEREAS, the City issued a Request for Proposals (RFP) for Municipal Advisory Services on March 6, 2024, which received two (2) proposals; and WHEREAS, NHA Advisors, LLC was selected for contract award through an evaluation process.

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

SECTION 1. The City Council approves Municipal Advisory Professional Services Agreement with NHA Advisors, LLC and authorizes the City Manager to make necessary non-substantive changes and to execute said agreement.

SECTION 2. This agreement will be managed through task orders per Procurement Policy (B30) with the approval of an initial task order for $100,000 to assess and address liquidity issues in the Electric Department.

SECTION 3. The City Council authorizes the City Manager, or designee, to make necessary non-substantive changes to the contract and effect budget adjustments, appropriations, and transfers related to this resolution.

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. 841
Resolution 2024-71

Page 2 of 4 ends

PASSED, APPROVED AND ADOPTED this 14th day of May 2024.

Alberto Sanchez, Mayor
City of Banning
ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:

Serita R. Young, City Attorney
Richards, Watson & Gershon
842
Resolution 2024-71

Page 3 of 4 ends

CERTIFICATION:

I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-71, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 14th day of May 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
843
Resolution 2024-71

Page 4 of 4 ends

EXHIBIT A
Agreement with NHA Advisors, LLC
844
-1- 2344655v8
AGREEMENT FOR PROFESSIONAL SERVICES (C01021) FOR

MUNICIPAL ADVISORY SERVICES BY AND BETWEEN CITY OF
BANNING AND NHA ADVISORS, LLC.

THIS AGREEMENT FOR PROFESSIONAL SERVICES (herein “Agreement”) is made and entered into this day: ___________________, (“Effective Date”) by and between the CITY OF BANNING, a California municipal corporation (“City”) and NHA ADVISORS, LLC, a California limited liability company (“Consultant”), (“Consultant”). City and Consultant are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”

RECITALS
A. City has sought by issuance of Request for Proposals (RFP#23-055) for the performance of Municipal Advisory Services and as further defined and described particularly in Article 1 of this Agreement.

B. Consultant, following submission of a proposal for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by City to perform those services.

C. The Parties desire to formalize the selection of Consultant for performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.

D. Pursuant to the City of Banning’s Municipal Code, City has authority to enter into this Agreement.

NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:

ARTICLE 1. SERVICES OF CONSULTANT

1.1 Scope of Services.

In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the “Scope of Services” attached hereto as Exhibit A and incorporated herein by this reference, which services may be referred to herein as the “Services” hereunder. As a material inducement to City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the Services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services described herein. Consultant covenants that it shall follow the highest professional standards in performing the Services required hereunder and that all materials will be of good quality, and fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional 845
-2-
standards” shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances.

1.2 Contract Documents and Exhibits.

This Agreement includes the Request for Proposal and Consultant’s accepted proposal (“Contract Documents”), both of which are on file with the City and incorporated herein by this general reference as though fully set forth herein. Exhibit A (Scope of Services), Exhibit B (Special Requirements), Exhibit C (Schedule of Compensation), and Exhibit D (Schedule of Performance) also constitute a part of this Agreement and are incorporated into this Agreement by this reference. Except as set forth in Section 1.10 regarding Exhibit B, this Agreement controls over the Contract Documents and the provisions in Exhibits A, B and C.

1.3 Compliance with Law.

Consultant shall keep itself informed concerning all ordinances, resolutions, statutes, rules, and regulations of City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered, and shall render all Services hereunder in accordance therewith.

1.4 Licenses, Permits, Fees and Assessments.

Consultant shall obtain and maintain during the term of this Agreement, at its sole cost and expense, all necessary licenses, permits, certificates and approvals required by law for the performance of Services under this Agreement, including a City business license. Consultant shall have the sole obligation to pay for all fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and which arise from or are necessary for Consultant’s performance of the Services required by this Agreement. Consultant shall indemnify, defend and hold harmless City, its officers, employees or agents, against all such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.

1.5 Familiarity with Services.

By executing this Agreement, Consultant warrants that Consultant: (i) has thoroughly investigated and considered the Scope of Services to be performed, (ii) has carefully considered how the Services should be performed, and (iii) fully understands the facilities and any difficulties and restrictions attending performance of the Services under this Agreement. If the Services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions existing therein, prior to commencement of Services hereunder. Should Consultant discover any latent or unknown conditions, which will materially affect the performance of the Services hereunder, Consultant shall immediately inform City of such fact and shall not proceed except at Consultant’s risk until written instructions are received from the Contract Officer (defined in Section 1.12. A).

1.6 Prevention of Loss and Damages.

Consultant shall adopt reasonable methods during the Term (defined in Section 3.4) to furnish continuous protection to the work product, and the equipment, materials, papers, 846
-3-
documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Services by City, except such losses or damages as may be caused by City’s own negligence.

1.7 Further Responsibilities of Parties.

Both Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonable necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither Party shall be responsible to perform the Services of the other.

1.8 Additional Services.

2.1), and/or (ii) the Schedule of Performance, (as defined in Section 3.2), and which written order is approved in writing by Consultant. Any increase in compensation of up to ten percent (10%) of the Contract Sum, or $25,000, whichever is less; or in the Schedule of Performance of up to one hundred eighty (180) days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by City Council. It is expressly understood by Consultant that the provisions of this Section shall not apply to Services which are specifically set forth in the Scope of Services or which are reasonably contemplated therein. Consultant hereby acknowledges that it accepts the risk that the Services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor.

1.9 Facilities and Equipment.

Except as otherwise provided, Consultant shall, at its own cost and expense, provide all facilities and equipment necessary to perform the Services required by this Agreement. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space (“City Facilities”), as City deems, in its sole discretion, to be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of City. The location, quality, and time of furnishing City Facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facilities that may involve incurring any direct expense, including but not limited to a computer, long distance telephone, network data, internet or other communication charges, vehicles and reproduction facilities.

1.10 Special Requirements.

Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibit B and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit B and any other provisions of this Agreement, the provisions of Exhibit B shall govern. 847
-4-

1.11 Corrections.

In addition to the indemnification obligations set forth in Article 4, and Sections 1.4, 1.13,

5.3, 5.4, and 6.3, Consultant shall correct, at its expense, all errors in the Services which may be disclosed during City’s review of Consultant’s report or plans. Should Consultant fail to make such correction(s) in a reasonably timely manner, such correction(s) may be made by City, and the cost thereof shall be charged to Consultant. In addition to all other available remedies, City may deduct the cost of such correction(s) from any retention amount held by City, or may withhold payment otherwise owed Consultant under this Agreement up to the amount of the cost of correction(s), as provided in Section 6.3.

1.12 Party Representatives.

A. Contract Officer: For the purposes of this Agreement, the Contract Officer shall be the City Manager, or such other person designated in writing by the City Manager (“Contract Officer”). Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of City required hereunder to carry out the terms of this Agreement.

B. Principals and Personnel of Consultant.
1) Consultant Representative: The following principal of Consultant is hereby designated as being the Consultant Representative authorized to act on Consultant’s behalf regarding the Services specified herein and make all decisions in connection therewith:

Name Title
Eric J. Scriven Principal
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Consultant Representative were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing Consultant Representative shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the Services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the Consultant Representative. For purposes of this Agreement, the foregoing Consultant Representative may not be replaced nor may their responsibilities be substantially reduced or reassigned by Consultant without the express written approval of City. It shall be Consultant’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the Services, and Consultant shall refer any decisions which must be made by City to the Contract Officer. 2) Consultant’s Personnel: Consultant has, or will secure at its own expense, all personnel required to perform the Services required under this Agreement. All of the Services required under this Agreement shall be performed by Consultant or under its supervision, and all personnel engaged in the Services shall be qualified to perform such Services. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and sub-contractors, if any, assigned to perform the Services required under this Agreement. 848
-5-
Consultant shall notify City of all changes in Consultant’s staff and sub-contractors, if any, assigned to perform the Services required under this Agreement, prior to and during any such performance. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires to reassign any staff or sub-contractor of Consultant, City shall give notice as set forth in Section 8.1. Consultant shall, immediately upon the receipt of the notice to re-assign staff from City, reassign such person or persons.

1.13 Independent Contractor.

A. Consultant is an independent contractor and not an employee of City.

Consultant shall have no power to incur any debt, obligation, or liability on behalf of City. All Services provided pursuant to this Agreement shall be performed by Consultant or under its supervision. Consultant will determine the means, methods, and details of performing the Services. Any additional personnel performing Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.

B. Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from Consultant’s personnel practices. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this Section.

1.14 Prohibition Against Subcontracting or Assignment.

The experience, knowledge, capability and reputation of Consultant, the Consultant Representative and employees were a substantial inducement for City to enter into this Agreement.

Therefore, Consultant shall not contract with any other entity to perform in whole or in part the Services required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty-five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this 849
-6-
Agreement shall be void. No approved transfer shall release Consultant or any surety of Consultant of any liability hereunder without the express consent of City.

ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.

2.1 Contract Sum.

Subject to any limitations set forth in this Agreement, as full compensation for Services satisfactorily rendered, City shall pay Consultant at the hourly rates set forth in the “Schedule of Compensation” attached hereto as Exhibit C and incorporated herein by this reference. In no event shall Consultant be paid more than One Hundred Thousand Dollars ($100,000.00) for the initial task order (the “Contract Sum”). Future task orders issues will be approved in accordance with City of Banning’s procurement threshold. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by City. Coordination of the performance of the Services with City is a critical component of the Services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending those meetings.

2.2 Method of Compensation.

The method of compensation may include: (i) a lump sum payment upon completion of the Services, (ii) payment in accordance with specified tasks or the percentage of completion of the Services, (iii) payment for time and materials based upon Consultant’s rates as specified in the Schedule of Compensation, provided that time estimates are provided for the performance of sub tasks, but not exceeding the Contract Sum or (iv) such other methods as may be specified in the Schedule of Compensation.

2.3 Reimbursable Expenses.

City shall only reimburse Consultant for those actual and necessary expenses expressly set forth in Exhibit C. Reimbursable expenses may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual sub-contractor expenses of an approved sub-contractor pursuant to Section 1.14, and only if specified in the Schedule of Compensation.

2.4 Unauthorized Services and Expenses.

City will not pay for any Services or reimburse for any expenses incurred which are not specified in the Scope of Services, unless authorized in writing as set forth in Section 1.8 of this Agreement. City shall make payment for such authorized additional Services and expenses in accordance with Article 2 of this Agreement.

2.5 Invoices.

Each month Consultant shall furnish to City an original invoice for all Services performed and expenses incurred during the preceding month. Each such invoice shall contain all of the information set forth in Section III of Exhibit C to this Agreement. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the 850
-7-
Agreement. Consultant shall not invoice City for any duplicate Services performed by more than one person.

City shall independently review each invoice submitted by Consultant to determine whether the Services performed and expenses incurred are in compliance with the provisions of this Agreement. City will use its best efforts to cause Consultant to be paid within thirty (30) days of receipt of Consultant’s correct and undisputed invoice, except as to any charges for Services performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 6.3. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City of any invoice provided by Consultant shall not constitute waiver of any rights or remedies provided herein or any applicable law.

2.6 Waiver.

Payment to Consultant for Services performed pursuant to this Agreement shall not be deemed to waive any defects in Services performed by Consultant.

ARTICLE 3. PERFORMANCE SCHEDULE

3.1 Time of Essence.

Time is of the essence in the performance of this Agreement; provided, however, that the foregoing shall not be construed to limit or deprive a Party of the benefits of any grace or use period allowed in this Agreement.

3.2 Schedule of Performance.

Consultant shall commence the Services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all Services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit D and incorporated herein by this reference.

3.3 Force Majeure.

The time period(s) specified in the Schedule of Performance for performance of the Services rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Consultant. Such unforeseeable consequences include, but are not restricted to, acts of God or public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, if Consultant shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the Services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified, subject to the provisions of Section 1.8. The Contract Officer’s determination (or the City Council’s determination, in the event the period of enforced delay exceeds the period specified in Section

1.8) shall be final and conclusive upon the Parties to this Agreement. In no event shall Consultant 851
-8-
be entitled to recover damages against City for any delay in the performance of this Agreement, however caused; Consultant’s sole remedy shall be the extension of the Agreement pursuant to this Section.

3.4 Term.

The Term of this Agreement shall be from the Effective Date through May 31, 2027, with the option to extend for two (2) additional one-year terms unless sooner terminated as provided in Article 6 of this Agreement. Maximum term and any subsequent amendment or modification shall not exceed five (5) years.

ARTICLE 4. INSURANCE AND INDEMNIFICATION

4.1 Minimum Scope and Limits of Insurance.

Consultant shall procure and at all times during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows:

A. Commercial General Liability Insurance with a minimum limit of $1,000,000.00 per occurrence for bodily injury, personal injury and property damage and a general aggregate limit of $2,000,000.00 per project or location. If Consultant is a limited liability company, the commercial general liability coverage shall be amended so that Consultant and its managers, members, affiliates, employees, agents and other persons necessary or incidental to its operation are insureds.

B. Automobile Liability Insurance for any owned, non-owned or hired vehicle used in connection with the performance of this Agreement with a combined single limit of $1,000,000.00 per accident for bodily injury and property damage. If Consultant does not use any owned, non-owned or hired vehicles in the performance of Services under this Agreement, Consultant shall obtain a non-owned auto endorsement to the Commercial General Liability policy.

C. Workers’ Compensation Insurance as required by the State of California and Employer’s Liability Insurance with a minimum limit of $1,000,000.00 per accident for bodily injury or disease. If Consultant has no employees while performing Services under this Agreement, workers’ compensation policy is not required; however, Consultant shall execute a declaration that it has no employees.

D. Professional Liability/Errors and Omissions Insurance with minimum limits of $1,000,000.00 per claim and in the aggregate.

4.2 Acceptability of Insurers.

The insurance policies required under this Article shall be issued by an insurer admitted to write insurance in the State of California with a rating of A:VII or better in the latest 852
-9-
edition of the A.M. Best Insurance Rating Guide. Self-insurance shall not be considered to comply with the insurance requirements under this Article.

4.3 Additional Insured.

The commercial general and automobile liability policies shall contain an endorsement naming City, its officers, employees, agents and volunteers as additional insureds.

4.4 Primary and Non-Contributing.

The insurance policies required under this Article shall apply on a primary noncontributing basis in relation to any other insurance or self-insurance available to City. Any insurance or self-insurance maintained by City, its officers, employees, agents or volunteers, shall be in excess of Consultant’s insurance and shall not contribute with it.

4.5 Consultant’s Waiver of Subrogation.

The insurance policies required under this Article shall not prohibit Consultant and Consultant’s employees, agents or sub-contractors from waiving the right of subrogation prior to a loss. Consultant hereby waives all rights of subrogation against City.

4.6 Deductibles and Self-Insured Retentions.

Any deductibles or self-insured retentions must be declared to and approved by City. At City’s option, Consultant shall either reduce or eliminate the deductibles or self-insured retentions with respect to City; or Consultant shall procure a bond guaranteeing payment of losses and expenses.

4.7 Cancellations or Modifications to Coverage.

Consultant shall not cancel, reduce or otherwise modify the insurance policies required by this Article during the term of this Agreement. The commercial general and automobile liability policies required under this Agreement shall be endorsed to state that should the issuing insurer cancel the policy before the expiration date, the issuing insurer will endeavor to mail 30 days’ prior written notice to City. If any insurance policy required under this Article is canceled or reduced in coverage or limits, Consultant shall, within two (2) Business Days (as defined in Section 8.12) of notice from the insurer, phone, fax or notify City via certified mail, return receipt requested, of the cancellation of or changes to the policy.

4.8 City Remedy for Noncompliance.

If Consultant does not maintain the policies of insurance required under this Article in full force and effect during the term of this Agreement, or in the event any of Consultant’s policies do not comply with the requirements under this Article, City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may, but has no duty to, take out the necessary insurance and pay, at Consultant’s expense, the premium thereon.

Consultant shall promptly reimburse City for any premium paid by City, or City may withhold amounts sufficient to pay the premiums from payments due to Consultant. 853
-10-

4.9 Evidence of Insurance.

Consultant shall provide proof to the City Clerk that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Consultant shall furnish such proof at least two (2) weeks prior to the expiration of the coverages.

4.10 Indemnity Requirements not Limiting.

Procurement of insurance by Consultant shall not be construed as a limitation of Consultant’s liability or as full performance of Consultant’s duty to indemnify City under this Agreement.

4.11 Sub-contractor Insurance Requirements.

Consultant shall require each of its sub-contractors that perform Services under this Agreement to maintain insurance coverage that meets all of the requirements of this Article.

4.12 Indemnification, Hold Harmless, and Duty to Defend.

A. Indemnification of City.
1) To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively “Indemnitees”), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively “Liabilities”), at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant, its officers, agents, servants, employees, sub-contractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties. Consultant shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of the Indemnitees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith.
854
-11-
2) Consultant shall pay all required taxes on amounts paid to Consultant under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant shall fully comply with the workers’ compensation law regarding Consultant and Consultant’s employees. Consultant shall indemnify and hold City harmless from any failure of Consultant to comply with applicable workers’ compensation laws. City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this subparagraph A.2. 3) Consultant shall obtain executed indemnity agreements with provisions identical to those in this Article from each and every sub-contractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement.

If Consultant fails to obtain such indemnity obligations, Consultant shall be fully responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Liabilities at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant’s sub-contractor, its officers, agents, servants, employees, sub-contractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant’s sub-contractor shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties.

B. Workers’ Compensation Acts not Limiting. Consultant’s indemnifications and obligations under this Article, or any other provision of this Agreement, shall not be limited by the provisions of any workers’ compensation act or similar act. Consultant expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents, employees and volunteers.

C. Insurance Requirements not Limiting. City does not, and shall not, waive any rights that it may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The indemnities in this Article shall apply regardless of whether or not any insurance policies are determined to be applicable to the Liabilities, tax, assessment, penalty or interest asserted against City.

D. Survival of Terms. Consultant’s indemnifications and obligations under this Article shall survive the expiration or termination of this Agreement.

ARTICLE 5. RECORDS, REPORTS, AND RELEASE OF INFORMATION

5.1 Service Records.

Consultant shall keep, and require sub-contractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and Services performed hereunder (the “Service Records”), as shall be necessary to perform the Services required by this Agreement and enable the Contract Officer 855
-12-
to evaluate the performance of such Services. Any and all such Service Records shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such Service Records at all times during normal business hours of City, including the right to inspect, copy, audit and make copies and transcripts from such Service Records. Such Service Records shall be maintained for a period of three (3) years following completion of the Services hereunder, and City shall have access to such Service Records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the Service Records may be given to City, and access shall be provided by Consultant’s successor in interest (“Consultant’s Successor”). If custody of the Service Records is given to Consultant’s Successor, Consultant shall give written notice to City of the transfer of the Service Records to Consultant’s Successor. The notice shall include contact information (address and telephone number) for Consultant’s Successor, and access shall be provided to City by Consultant’s Successor.

5.2 Reports.

Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that City is greatly concerned about the cost of Services to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services contemplated herein, Consultant shall promptly notify the Contract Officer of that fact, circumstance, technique or event and the estimated increased or decreased cost related thereto.

5.3 Ownership of Documents.

All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the “Consultant Documents”) prepared by Consultant, its employees, sub-contractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement. Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the Consultant Documents hereunder. Any use, reuse or assignment of such completed Consultant Documents for other projects and/or use of uncompleted Consultant Documents without specific written authorization by Consultant will be at City’s sole risk and without liability to Consultant, and Consultant’s guarantee and warranties shall not extend to such use or assignment. Consultant may retain copies of such Consultant Documents for its own use. Consultant shall have an unrestricted right to use the concepts embodied therein. All sub-contractors shall provide for assignment to City of all Consultant Documents prepared by them; and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom.

5.4 Confidentiality and Release of Information.

A. All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the 856
-13-
public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer.

C. If Consultant, or any officer, employee, agent or sub-contractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorneys’ fees, caused by or incurred as a result of Consultant’s conduct.

D. Consultant shall promptly notify City should Consultant, its officers, employees, agents or sub-contractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any Party regarding this Agreement and the Services performed thereunder. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite the response.

ARTICLE 6. ENFORCEMENT OF AGREEMENT AND TERMINATION

6.1 California Law.

This Agreement, and any dispute arising from the relationship between the Parties to this Agreement, shall be interpreted, construed and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.

6.2 Disputes; Default.

A. In the event that City determines Consultant is in default under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any Services performed after the date of default. In addition to the provisions of Section 4.8, and the right to terminate pursuant to Section 6.7, if the City Manager determines that Consultant is in default in the performance of any of the terms or conditions of this Agreement, City may serve Consultant with written notice of the default. Consultant shall have ten (10) calendar days after service upon it of the notice in which to cure the default by rendering a satisfactory performance. 857
-14-
In the event that Consultant fails to cure its default within such period of time, City may, notwithstanding any other provision of this Agreement, terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.

B. In the event of termination pursuant to this Section, City may take over the Services and prosecute the same to completion by contract or otherwise, and Consultant shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to Consultant for the purpose of set-off or partial payment of the amounts owed City as provided in Section 6.3.

6.3 Retention of Funds.

Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement): (i) any payment amount of which may be in dispute hereunder or which is necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, (ii) all amounts retained pursuant to the provisions of Section 4.8, (iii) all amounts for which City may be liable to third parties, by reason of Consultant’s acts or omissions in performing or failing to perform Consultant’s obligation under this Agreement, and (iv) all payments due or that become due to Consultant during the period that Consultant or any of its sub-contractors fail to maintain any required insurance in full force and effect, until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City, as provided in Section 4.9, above. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Consultant to insure, indemnify, and protect City as elsewhere provided herein.

6.4 Waiver.

Acceptance by City of any Services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver.

Any waiver by either Party of any default must be in writing, and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.

6.5 Rights and Remedies are Cumulative.

Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party 858
-15-
of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.

6.6 Legal Action.

In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Consultant must file a statutory claim pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action against City under this Agreement.

6.7 Termination Prior to Expiration of Term.

This Article 6 shall govern any termination of this Agreement except as specifically provided in Section 6.2 for termination for default of Consultant. City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days’ written notice to Consultant, except that where termination is due to the fault of Consultant, the period of notice may be a shorter time as may be determined by the Contract Officer. In addition, Consultant reserves the right to terminate this Agreement at any time, with or without cause, upon sixty (60) days’ written notice to City, except that where termination is due to the fault of City, the period of notice may be a shorter time as Consultant may determine. Upon receipt of any notice of termination, Consultant shall immediately cease all Services hereunder except such as may be specifically approved by the Contract Officer. Except where Consultant has initiated termination, Consultant shall be entitled to compensation for all Services rendered prior to the effective date of the notice of termination and for any Services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 6.3. In the event Consultant has initiated termination, Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating Party need not provide the non-terminating Party with the opportunity to cure pursuant to Section 6.2.

6.8 Attorneys’ Fees.

In any litigation or other proceeding by which a Party seeks to enforce its rights under this Agreement (whether in contract, tort or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing Party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees. Attorneys’ fees shall include attorney’s fees on any appeal, and in addition the Party entitled to attorneys’ fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 859
-16-
ARTICLE 7. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION

7.1 Non-liability of City Officers and Employees.

No officer or employee of City shall be personally liable to Consultant, or Consultant’s Successor, in the event of any default or breach by City or for any amount which may become due to Consultant or Consultant’s Successor, or for breach of any obligation of the terms of this Agreement.

7.2 Conflict of Interest.

Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of Services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or sub-contractor without the express written consent of the Contract Officer. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.

Consultant and its officers, employees, associates and sub-contractors, if any, shall comply with all conflict of interest statutes of the State of California applicable to Consultant’s Services under this Agreement, including the Political Reform Act (Gov. Code § 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Consultant may perform similar services for other clients; but Consultant and its officers, employees, associates and subcontractors shall not, without the Contract Officer’s prior written approval, perform services for another person or entity for whom Consultant is not currently performing services that would require Consultant or one of its officers, employees, associates or sub-contractors to abstain from a decision under this Agreement pursuant to a conflict of interest statute. Consultant shall incorporate a clause substantially similar to this Section into any subcontract that Consultant executes in connection with the performance of this Agreement.

7.3 Covenant Against Discrimination.

Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, or ancestry in the performance of this Agreement.

Consultant shall take affirmative action to insure that applicants are employed, and that employees 860
-17-
are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry, or other protected class.

7.4 Unauthorized Aliens.

Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of Services covered by this Agreement, and should the any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by City.

ARTICLE 8. MISCELLANEOUS PROVISIONS

8.1 Notices.

If to City Attn: Lincoln Bogard
Deputy City Manager
City of Banning
99 East Ramsey Street
Banning, California 92220
Email: [email protected]
With a courtesy copy to: Serita R. Young, City Attorney Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, California 90071
Email: [email protected]
If to Consultant: Attn: Eric J. Scriven
Principal
NHA Advisors, LLC
4040 Civic Center Drive, Suite 200
San Rafael, CA 94903
Email: [email protected]
861
-18-

8.2 Interpretation.

The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.

8.3 Counterparts.

This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.

8.4 Integration; Amendment.

This Agreement, and all exhibits referred to in this Agreement, constitute the final, complete and exclusive statement of the terms of the agreement between the Parties pertaining to the subject matter of this Agreement and supersede all other and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the Parties, and none shall be used to interpret this Agreement. No Party has been induced to enter into this Agreement by, nor is any Party relying on, any representation or warranty except those expressly set forth in this Agreement. No amendment to or modification of this Agreement, nor any provision or breach hereof waived, shall be valid unless made in writing and approved by Consultant and by City Council. The Parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.

8.5 Severability.

In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.

8.6 Mutual Cooperation.

B. Consultant’s Cooperation. In the event any claim or action is brought against City relating to Consultant’s performance of Services rendered under this Agreement, Consultant shall render any reasonable assistance that City requires. 862
-19-

8.7 No Third Party Beneficiaries Intended.

This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.

8.8 Final Payment Acceptance Constitutes Release.

The acceptance by Consultant of the final payment made under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Consultant for anything done, furnished or relating to Consultant’s Services. Acceptance of payment shall be any negotiation of City’s check or the failure to make a written extra compensation claim within ten (10) calendar days of the receipt of that check. However, approval or payment by City shall not constitute, nor be deemed, a release of the responsibility and liability of Consultant, its employees, sub-contractors and agents for the accuracy and competency of the information provided and/or Services performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the Services prepared by Consultant, its employees, sub-contractors and agents.

8.9 Non-Appropriation of Funds.

Payments to be made to Consultant by City for Services performed within the current fiscal year which are within the current fiscal budget and within an available, unexhausted fund. In the event that City does not appropriate sufficient funds for payment of Consultant’s Services beyond the current fiscal year, this Agreement shall cover payment for Consultant’s Services only to the conclusion of the last fiscal year in which City appropriates sufficient funds and shall automatically terminate at the conclusion of such fiscal year.

8.10 Headings.

The headings in this Agreement are included solely for convenience of reference and shall not affect the interpretation of any provision of this Agreement or any of the rights or obligations of the Parties to this Agreement.

8.11 Word Usage.

Unless the context clearly requires otherwise, (a) the words “shall,” “will” and “agrees” are mandatory and “may” is permissive; (b) “or” is not exclusive; and (c) “includes” or “including” are not limiting.

8.12 Business Days.
“Business Days” refers to days that the Banning City Hall is open for business.

8.13 Corporate Authority.

The persons executing this Agreement on behalf of the Parties hereto warrant that (i): such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver 863
-20-
this Agreement on behalf of that Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which that Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.

8.14 Electronic Signatures.

Each Party may adopt as its signature an electronic identification consisting of a symbol or code that is affixed to or contained in each document transmitted by such Party (“electronic signature”). The Parties hereto herby agree that electronic signatures are acceptable, shall have the same force and effect under the law as original wet signatures, and shall be sufficient to verify that the Parties have executed this Agreement and such other documents transmitted by the Parties.
[SIGNATURES ON FOLLOWING PAGE]
864
-21-
IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first hereinabove written.

CITY OF BANNING CONSULTANT
Douglas Schulze, Date
City Manager
NAME: Date
TITLE:

NAME: Date
TITLE:

ATTEST:

Tax ID No.

Caroline Patton Date
Administrative City Clerk
Address:

APPROVED AS TO FORM:

Richards, Watson & Gershon
City Council Approval: _____________
Serita R. Young Date
City Attorney
NOTE: PROOF OF AUTHORITY TO BIND CONTRACTING PARTY REQUIRED. APPROPRIATE

ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY.
865
Exhibit “A”-1
EXHIBIT “A”

SCOPE OF SERVICES
I. Consultant will perform the following Services in connection with providing Municipal Advisory Services prepared in connection therewith:

II. As part of the Services, Consultant will prepare and deliver the following tangible work products and services to City:
866
RFP-23-055 MUNICIPAL ADVISORY SERVICES

Page 1 ends

Cost Proposal for Non-Contingent Work (Hourly Consulting) For work related to the development of funding
strategies and work outside of defined project
financings, NHA proposes to work under an
hourly time-and-material basis to avoid the
implication of a bias towards any particular
financing structure or whether a transaction is
even warranted (i.e.sometimes the “best deal is
no deal”). NHA is agnostic to the funding
strategy selected by the City and does not want
to create any perceived conflict through
recommendations or development of funding alternatives.

Cost Proposal for Bond and Short-Term Financing Issuance For potential bond and short-term financing(s), NHA proposes to use a base fee with potential add-ons depending on the type of financing. The base fee is a function of method of sale, the time involved in the process, the complexity of the financing, the financing structure and the number of potential funding source(s).

The table below identifies the base fees for each of the three methods of sale – (1) private placement with a private party or bank (requiring no public offering disclosure document), (2) negotiated public offering with a pre-selected underwriter, or (3) competitive public offering engaging an underwriter through a competitive sale.

Method of Sale (Base Fee)
Short-Term Cash Flow
Financing
Bond, Loan or Other Debt
Financing
Private Placement $22,500 $47,500
Public Offering – Negotiated Sale $25,500 $62,500
Public Offering – Competitive Sale $27,500 $67,500
Credit Rating Process (Add-On)
Financing $5,000 $10,000
Request for Proposal Process (Add-On)
Broker-Dealer
(Underwriter/Placement Agent) $5,000 $5,000
Bond/Disclosure Counsel $2,500 $2,500
Special Tax Consultant $2,000 $2,000
Fiscal Consultant $1,500 $1,500
Trustee $1,000 $1,000
Staff Allocation Hourly Rate
Principal $350
Director / Senior Vice President $325
Vice President $300
Assist. Vice President / Sr. Associate $275
Associate $250
Senior Analyst $225
Analyst $200
Administrative $100
EXHIBIT "A" Exhibit "A" - 2
867
RFP-23-055 MUNICIPAL ADVISORY SERVICES

Page 2 ends

Estimated Total Fees for a Bond or Short-Term Note (3 Potential Scenarios) The City’s RFP requested a stated dollar bid amount for providing the services. Since the actual fee is a function of the type of financing and the services provided, below are some maximum total fees for example financing types. These maximum total fees are not contingent upon the size of the financing. We are excited to work with the City and NHA is always willing to discuss our fees with our clients to come to mutual agreement.

Potential City Financing Scenario Maximum Fee
Long-Term Bond, sold as Public Offering (Negotiated),
with Credit Rating services and Underwriter RFP Services $77,500 Long-Term Bond, sold as a Private Placement with
Placement Agent RFP services $52,500
Short-Term Interim Construction Loan, sold as a Private Placement with Placement Agent RFP services $27,500
Cost Proposal for WIFIA Loan and SRF Loan Issuance
NHA’s proposed compensation for a WIFIA Loan or SRF Loan funding depends upon the time expected to be required to manage the process for all aspects of the financing plan to a successful outcome for the City. WIFIA Loan and SRF Loan Issuance are billed on an hourly, time and materials basis (estimated budgets identified below). The rates charged will be the hourly rates identified in the hourly rate table earlier in this price proposal. The actual fee is a function of the amount of time the WIFIA Loan or SRF Loan financing requires. Our estimates below are based on prior similar projects, but the City’s actual fee could be less if the project requires less time than a typical WIFIA or SRF financing.

Financing Type Estimated Budget
WIFIA Loan (Letter of Interest to Funding) $80,825
SRF Loan (Application to Funding) $50,000
Grant Application Support (As Needed) To Be Determined
The table below summarizes how NHA developed our estimated budget for the WIFIA Loan fee above.

Because we are billing on an hourly basis, our estimated budget for a WIFIA Loan is a function of the blended hourly rate and the number of hours anticipated for each component of the project. NHA strives to be efficient on all of our projects to minimize the cost to our clients. Accordingly, the blended hourly rate below assumes the majority (60%) of the NHA time spent on the project is coming from support staff and billed at their lower hourly rates (Assistant Vice President level and below).

EXHIBIT "A" Exhibit "A" - 3
868
RFP-23-055 MUNICIPAL ADVISORY SERVICES

Page 3 ends

WIFIA Loan Process Assumed Blended
Hourly Rate*
Estimated
Hours
Estimated Hourly
Billing
Preparation of Letter of Interest $305 35 $10,675
Preparation of WIFIA Loan Application $305 60 $18,300
WIFIA Loan Credit Rating Process $305 50 $15,250
Finalizing WIFIA Loan $305 120 $36,600
Total Estimated Project Budget $80,825
*Blended rate based on assumed NHA staff workload allocations on similar WIFIA Loan projects (~40% Principal and VP; ~60% Assistant VP and support staff); actual workload allocations may differ based on your project specifics To the extent that the actual number of hours exceeds the estimates presented above due to a greater amount of work than is currently anticipated, NHA respectfully requests the opportunity to discuss the option of increasing the budget with City staff.

Cost Proposal for Post Compliance and Continuing Disclosure Services Based on our review of the City’s outstanding debt and the amount of time required to fulfil the reporting requirements on that debt, we have prepared the following fee quote for post compliance and continuing disclosure services. Fees in this section are quoted on a fixed fee (not hourly) basis. 1) MSRB Continuing Disclosure Compliance (Rule 15c2-12):

For services related to MSRB Continuing Disclosure Compliance, NHA proposes a fixed annual fee payable upon successful submission of the Annual Reports. The following table provides a snapshot of the initial fees associated with the City’s current obligations:

Existing
MSRB Continuing Disclosure Reporting Paid By Annual Fee(1) Water Enterprise Revenue Bonds, Refunding and
Improvement Projects, 2015 Series Water Fund $3,000
Refunding Revenue Bonds (Electric System Project), Series 2015 Electric Utility $3,000
Tax Allocation Refunding Bonds, Series 2016 (Taxable) Successor Agency $3,000 Improvement District No. 2004-1 (Fair Oaks Ranch Estates), Limited Obligation Improvement Bonds, Series 2005A(2) Assessment N/A Total Annual Fee $9,000
1) In the event that the City’s audited financial statements are not available prior to the reporting due date and NHA is required to file both unaudited and audited reports, NHA has the option to assess a $500 refiling fee for each obligation that requires a second filing.
2) It is assumed that the City’s special tax consultant has been and will continue to prepare and post these reports to EMMA.

EXHIBIT "A" Exhibit "A" - 4
869
RFP-23-055 MUNICIPAL ADVISORY SERVICES

Page 4 ends

As additional debt is issued, new continuing disclosure obligations would be billed at the flat fees in the ranges shown below. Actual fees will be on a case-by-case basis, based on the amount of work required for each obligation:

Future
MSRB Continuing Disclosure Reporting Annual Fee
General Obligation Bonds $1,000-$2,250
Certificates of Participation/Lease $1,250-$2,500
Utility Revenue Bonds (Water, Sewer, etc.) $1,500-$3,250 Land Secured Bonds $1,500-$3,500
Tax Allocation Bonds $1,500-$3,500
WIFIA Loan* $3,000-$4,000
Other $1,000-$3,500
*WIFIA Loan reporting includes a 5-year projection updated each year. The fee range here accounts for the extra work involved in preparing those 5-year projections annually. 2) CDIAC Annual Debt Transparency Reporting (SB 1029):

For services described in Task 2 of the Scope of Services, NHA proposes a fixed annual fee of $500 per report, payable upon successful submission of the reports. At present, the City has the following obligation outstanding that requires CDIAC Annual Debt Transparency Reporting.

CDIAC Annual Debt Transparency Reporting Paid By Annual Fee 2022 Master Lease Agreement (Vactor Truck) General Fund $500 Total Annual Fee $ 500
3) CDIAC Yearly Fiscal Status Reporting:
a. Marks-Roos
For services described in Task 3a of the Scope of Services, NHA proposes a fixed annual fee of $400 per report, payable upon successful submission of the reports. At present, the City has no obligations outstanding that require Marks-Roos CDIAC Yearly Fiscal Status Reporting.

Marks-Roos CDIAC
Yearly Fiscal Status Reporting Paid By Annual Fee
None N/A N/A
Total Annual Fee $ 0
EXHIBIT "A" Exhibit "A" - 5
870
RFP-23-055 MUNICIPAL ADVISORY SERVICES

Page 5 ends

b. Mello-Roos
For services described in Task 3b of the Scope of Services, NHA proposes a fixed annual fee of $750 per report, payable upon successful submission of the reports. At present, the City has no obligations outstanding that require Mello-Roos CDIAC Yearly Fiscal Status Reporting.

Mello-Roos CDIAC
Yearly Fiscal Status Reporting Paid By Annual Fee
None N/A $0
Total Annual Fee $ 0
4) Private Placement Debt and Other Loan Reporting:

For services described in Task 4 of the Scope of Services, NHA proposes a fixed annual fee payable upon successful submission of the report. The following table provides a snapshot of the initial fee associated with the City’s current obligations:

Private Placement Debt
and Other Loan Reporting Paid By Annual Fee(1)
Wastewater Enterprise Refunding Revenue Bonds, 2019 Series Wastewater Fund $3,000 Total Annual Fee $3,000
1) In the event that the purchasing bank requests additional information beyond what is outlined in the scope of work, this fee will increase commensurate with the additional work required to provide such information.

Future Obligations
In the event that the City issues additional privately placed debt or other loans that require periodic reporting, the annual fee will be commensurate with the amount of work required and the Future MSRB Continuing Disclosure Reporting fee schedule provided in Task 1 (Future MSRB Continuing Disclosure Reporting).

Grand Total Annual Fee - The initial combined annual fee for continuing disclosure reporting services will be $12,500*.

Grand Total – All Tasks
Projected
On-going
Annual Fee*
Task 1: MSRB Continuing Disclosure Compliance $9,000
Task 2: CDIAC Annual Debt Transparency Reporting $500
Task 3a: Marks-Roos CDIAC Yearly Fiscal Status Reporting $0 Task 3b: Mello-Roos CDIAC Yearly Fiscal Status Reporting $0 Task 4: Private Placement Debt and Other Loan Reporting $3,000 Grand Total Annual Fee $12,500
* As prior obligations mature or new debt is issued, the Scope of Services and annual budget for services will change in accordance with the fees outlined above.

EXHIBIT "A" Exhibit "A" - 6
871
RFP-23-055 MUNICIPAL ADVISORY SERVICES

Page 6 ends

Out-of-Pocket Expenses - Annual expense reimbursements would be capped at $1,500 without prior approval from the City and will be limited to third-party contractor work and data purchases required to secure specific information required to complete the respective reports. Data costs will be passed on to the City with no additional markup.

EXHIBIT "A" Exhibit "A" - 7
872
Exhibit “A”-8
III. In addition to the requirements of Parts I and II of this Scope of Services, during the performance of the Services, Consultant will keep City appraised through periodic status reports regarding the performance of the Services under this Agreement as set forth below and in Section 5.2, by the following means:
a. In-person meetings and/or teleconferences.
b. Email updates/questions to applicant team and City while reviews are underway.
c. Conference calls.

IV. All work product is subject to review and acceptance by City. If the City determines that any work product is unacceptable, for any reason, it must be revised by Consultant without additional charge to City until found satisfactory and accepted by City. 873
Exhibit “B”-1
EXHIBIT “B”

SPECIAL REQUIREMENTS
None
874
Exhibit “C”-1
EXHIBIT “C”

SCHEDULE OF COMPENSATION
I. Consultant shall perform the following tasks (“Tasks”) at the rates stated in Exhibit “A”.

II. Within the budgeted amounts for each Task, and with the approval of the Contract Officer, funds may be shifted from one Task sub-budget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.8.

III. City will compensate Consultant for the Services performed upon submission of a valid invoice. Each invoice is to include:

A. Line items for all personnel describing the Services performed, the number of hours worked, and the hourly rate.

B. Line items for all materials and equipment properly charged to the Services.

C. Line items for all other approved reimbursable expenses claimed, with supporting documentation.

D. Line items for all approved sub-contractor labor, supplies, equipment, materials, and travel properly charged to the Services. 875
Exhibit “C-1”-1
11303-0008\2344655v8.doc
EXHIBIT “C-1”
CONSULTANT’S BILLING RATE AND TASK SCHEDULE
SEE EXHIBIT “A”
876
Exhibit “D”- 1
11303-0008\2344655v8.doc
EXHIBIT “D”

SCHEDULE OF PERFORMANCE
I. Consultant shall perform all Services timely, and deliver the specified tangible work products to City in accordance to task order provisions and details.

II. The Contract Officer may approve extensions for performance of the Services in accordance with Sections 1.8 and 3.3.
877
Exhibit “D-1”- 1
11303-0008\2344655v8.doc
EXHIBIT “D-1”

PROPOSED PROJECT SCHEDULE
878
City of Banning
Purchasing Division
Barbara Mason, Purchasing Manager
99 E Ramsey St, Banning, CA 92220

EVALUATION TABULATION
RFP No. RFP-23-055
Municipal Advisory Services - City of Banning, CA
RESPONSE DEADLINE: April 15, 2024 at 11:59 pm
Report Generated: Friday, May 3, 2024

VENDOR SCORES BY EVALUATION CRITERIA
Vendor Qualifications
Points Based
25 Points (25%)
Pricing
Points Based
15 Points (15%)
Experience
(Projects of similar
size and scope)
Points Based
20 Points (20%)
Professional
References
Points Based
10 Points (10%)
Approach and
Methodology
Points Based
25 Points (25%)
Value Added
Services
Points Based
5 Points (5%)
Total Score
(Max Score 100)
NHA Advisors, LLC 24 13.3 19 9.7 24 4 94
Kosmont Financial
Services
23 11.7 17.3 9.7 21 2.7 85.33
879

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Lincoln Bogard, Administrative Services Director MEETING DATE: May 14, 2024
SUBJECT: Consideration of Resolution 2024-72, Approving an Amendment No. 1 to the Professional Services Agreement with Eide Bailly for External Audit Services for Fiscal Year 2022-23 Cost Overruns in the Amount of $145,000 after 20 Percent Discount
RECOMMENDATION:

Adopt Resolution 2024-72.

BACKGROUND:

In accordance with the engagement letter for the fiscal year ended June 30, 2023, if unexpected circumstances arose during the audit, Eide Bailly would discuss them with the City and arrive at a new fee estimate.

JUSTIFICATION:

Throughout the audit process we have coordinated with Audit staff, researched matters, and performed a much deeper dive including detailed transaction testing, which included the identification of mis recorded items dating back several years and now requiring a prior period restatement.

Government Accounting Standard 100 – Accounting Changes and Error Corrections will be effective for the Fiscal Year 2023-24 audit and staff requested a more thorough review by the auditors in its first contract year due to prior financial misstatement items identified by Finance staff during the Fiscal Year 2021-22 audit and the upcoming implementation of said Standard.

FISCAL IMPACT:
$145,000 in Fiscal Year 2023-24. Some savings are likely to be realized in future years of the contract.

This will be appropriated and paid out of general ledger account 705-4500-412.33-11 for Professional Services.

ALTERNATIVES:

Do not approve Resolution and provide alternative direction. 880
ATTACHMENTS:

1. Resolution 2024-72, Eide Bailey.docx

2. Amendment No.1 to Auditing PSA

3. City of Banning FYE 2023 Audit Engagement Amendment
881
Resolution 2024-74

Page 1 of 4 ends

RESOLUTION 2024-74

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, APPROVING AN AMENDMENT TO AGREEMENT C00853 WITH EIDE BAILLY FOR EXTERNAL AUDIT SERVICES FOR FISCAL YEAR 2022-23 COST OVERRUNS IN THE AMOUNT OF $145,000 AFTER 20 PERCENT DISCOUNT
WHEREAS, In accordance with the engagement letter for the fiscal year ended June 30, 2023, if unexpected circumstances arose during the audit, Eide Bailly would discuss them with the City and arrive at a new fee estimate; and
WHEREAS, during the current year audit, the time incurred to perform required audit procedures has exceeded original estimates in multiple audit areas, including cash, capital assets (including right of use lease and subscription-based information technology arrangement assets), interfund balances, accounts payable, long-term debt (including right of use lease and subscription-based information technology arrangement liabilities), accrued expenses, selfinsurance, net position/fund balance, receivables/revenue, expenditures, pensions/OPEB, and successor agency; and
WHEREAS, throughout the audit process we have coordinated with Audit staff, researched matters, and performed a much deeper dive including detailed transaction testing, which included the identification of mis recorded items dating back several years and now requiring a prior period restatement; and
WHEREAS, Government Accounting Standard 100 – Accounting Changes and Error Corrections will be effective for the Fiscal Year 2023-24 audit and staff requested a more thorough review by the auditors in its first contract year due to prior financial misstatement items identified by Finance staff during the Fiscal Year 2021-22 audit and the upcoming implementation of said Standard; and
WHEREAS, based on the estimated additional time necessary to perform and complete the audit work, Eide Bailly is proposing an amendment and requesting an overage of $145,000 for this fiscal year’s audit, which includes a proposed fee amendment discount of 20 percent on the overage.

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

SECTION 1. The City Council approves Amendment to Agreement with Eide Bailly for a not-toexceed total of $145,000 and authorizes the City Manager to make necessary non-substantive changes and to execute said agreement.

SECTION 2. The City Council authorizes the City Manager, or designee, to make necessary budget adjustments, appropriations, and transfers related to this resolution.

SECTION 3. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions. 882
Resolution 2024-74

Page 2 of 4 ends

PASSED, APPROVED AND ADOPTED this 14th day of May 2024.

Alberto Sanchez, Mayor
City of Banning
ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:

Serita R. Young, City Attorney
Richards, Watson & Gershon
883
Resolution 2024-74

Page 3 of 4 ends

CERTIFICATION:

I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-74, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 14th day of May 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
884
Resolution 2024-74

Page 4 of 4 ends

EXHIBIT A
Amendment to Agreement No. C00853 with Eide Bailey
885
AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT
(C00853) FOR FINANCIAL AUDITING SERVICES BY AND

BETWEEN CITY OF BANNING AND EIDE BAILLY LLP
THIS AMENDMENT NO. 1 TO THE PROFESSIONAL SERVICES
AGREEMENT FOR SERVICES (“Amendment No. 1”) by and between the CITY OF BANNING (“City”) and Eide Bailly LLP, a Limited Liability Partnership (“Consultant”) is effective as of this day: ______________.

RECITALS
A. City and Consultant entered into that certain Contract dated July 28, 2023 for the purpose of providing Financial Auditing Services (“Agreement”) following the Request for Proposals #23-029, as approved by City Council Resolution 2023-128.

B. City and Consultant now desire to amend the Agreement to modify the Scope of Services and increase the Contract Sum to Two Hundred Sixty-Six Thousand Three Hundred Dollars ($266,300.00).

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 1, attached hereto and incorporated herein.

1.2 The maximum compensation for the Services performed pursuant to this Amendment No.1 shall not exceed One Hundred Forty-Five Thousand Dollars ($145,000.00) thereby increasing the Contract Sum, as set forth in Section 2.1 of the Agreement, to Five Hundred Thirty-Six Thousand Eight Hundred Seventy-Three Dollars ($536,873.00).

2. Miscellaneous Provisions

2.1 Continued Effect of Agreement. Except as amended by this Amendment No. 1, all provisions of the Agreement shall remain unchanged and in full force and effect. From and after the date of this Amendment No. 1, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement, as amended by Amendment No. 1. In the event of a conflict between the provisions 886
of this Amendment No. 1 and the provisions of the Agreement or Amendment No. 1, the provisions of this Amendment No. 1 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. 1.

2.3 Authority. The persons executing this Amendment No. 1 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. 1 on behalf of said party, (iii) by so executing this Amendment No. 1, such party is formally bound to the provisions of this Amendment No. 1, and (iv) entering into this Amendment No. 1 does not violate any provision of any other agreement to which said party is bound.

2.4 Counterparts. This Amendment No. 1 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 Amendment No. 1 and such other documents transmitted by the Parties.
[SIGNATURE PAGE FOLLOWS]
887
The Parties are signing this Amendment No. 1 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
Administrative 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.
888
ATTACHMENT “1”
889
890
What inspires you, inspires us. | eidebailly.com
10681 Foothill Blvd., Ste. 300 | Rancho Cucamonga, CA 91730-3831 | T 909.466.4410 | F 909.466.4431 | EOE 1 April 22, 2024
Mr. Lincoln Bogard
Administrative Services Director
City of Banning, California
Dear Mr. Bogard:

We appreciate the opportunity to continue to serve the City of Banning, California (City) as the independent auditor. This letter is intended to set forth the basic understanding that we will incur additional time in performing the City’s 2023 fiscal year-end audit and request to amend our engagement letter.

In accordance with our engagement letter for the fiscal year ended June 30, 2023, if unexpected circumstances arose during the audit, we would discuss them with the City and arrive at a new fee estimate. We have maintained frequent communication and weekly status meetings to discuss audit procedures, potential adjustments, pending items, delays and contract status.

During the current year audit, the time incurred to perform required audit procedures has exceeded original estimates in multiple audit areas, including cash, capital assets (including right of use lease and subscriptionbased information technology arrangement assets), interfund balances, accounts payable, long-term debt (including right of use lease and subscription-based information technology arrangement liabilities), accrued expenses, self-insurance, net position/fund balance, receivables/revenue, expenditures, pensions/OPEB, and successor agency. Throughout the audit process we have coordinated with City staff, allowed for the City to research matters and revise year-end schedules, reviewed support and modified our procedures. As the City continues to research and address items, modifications to the overall timeline are noted, and more detailed assistance has been required from higher level engagement team staff.

Based on the estimated additional time necessary to perform and complete our work, we are proposing an amendment and requesting an overage of $145,000 for this fiscal year’s audit. Our proposed fee amendment includes a 20% discount on the overage.
891
2 A recap of the hours and comparison to our original proposal is included below:

Per Proposal
Engagement Fee $121,300
Hours 707
Blended Rate $171.57
Actual to Date Hours to Estimated
Rates Hours Complete Total Hrs Cost
Partner $400 38 30 68 $ 27,200
Manager 300 399.38 60 459.38 $137,814
Senior 200 479.75 12 491.75 $98,350
Staff 150 359.33 359.33 $53,900
Admin 90 36.35 16 52.35 $4,712
1312.81 118 1430.81 $ 321,975
Contract Amount $ 121,300
Overage $ 200,675
Initial year - investment (18,195)
182,480
Discount at 20% (36,496)
$ 145,984
Requested Overage $ 145,000
Please let me know if you have any questions.

Sincerely,
Roger E. Alfaro, CPA
Partner
892
3 *************************************************************** RESPONSE:

This letter correctly sets forth our understanding.

Acknowledged and agreed on behalf of the City of Banning, California by:

Name:

Title:

Date:
893

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Lincoln Bogard, Administrative Services Director MEETING DATE: May 14, 2024
SUBJECT: Consideration of Resolution 2024-73, Approving a Consulting Agreement for Year-End Close and Advisory Services with Eide Bailly for a Not-toExceed Total of $75,000 with a Term from Execution through December 31, 2024
RECOMMENDATION:

Adopt Resolution 2024-73.

BACKGROUND:

City Council authorized the Finance Department to add an additional temporary staff or consultant to help cover department Director level activities while the Administrative Services Director completes a Citywide Forensic Investigation.

Eide Bailly offer consulting services to assist with year-end close processes, finding efficiencies for that process, and documenting and training staff on the procedures implemented.

The consulting division of Eide Bailly is separate from the audit and attest division and qualifies as independent according to Generally Accepted Accounting Principles, including Governmental Accounting Standards, and Statements on Standards for Attestation Engagements and Statements on Standards for Consulting Services as promulgated by the American Institute of Certified Public Accountants (AICPA).

JUSTIFICATION:

Eide Bailly will assist in the development of modified or enhanced reconciliation processes and related templates, provide assistance with enhancements to or preparation of year-end Provided By Client (PBC) schedules to facilitate a timelier yearend close process, provide assistance with the development and implementation of a structured internal review process in the City’s Finance Department for key transactions and year-end PBC schedules, provide assistance with the year-end close process for the fiscal year ending June 30, 2024, and provide training for City staff on use of the processes, templates, and schedules developed as part of this engagement.

FISCAL IMPACT:
$75,000 total with less than half expected to be expended in Fiscal Year 2023-24 and the remaining to be expended in Fiscal Year 2024-25. These funds will be appropriated and paid out of general ledger account 001-1900-412.33-11 for Professional Services.

ALTERNATIVES:

Do not approve Resolution and provide alternative direction. 894
ATTACHMENTS:

1. Resolution 2024-73, Eide Bailey.docx

2. PSA (C001019) Eide Bailley PSA for Year End Closing Processes

3. Eide Bailly Consulting Engagement Letter

4. Sole Source - Eide Bailly.pdf
895
Resolution 2024-73

Page 1 of 4 ends

RESOLUTION 2024-73

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, APPROVING A PROFESSIONAL SERVICES AGREEMENT (C01019) FOR YEAR-END

CLOSE AND ADVISORY SERVICES WITH EIDE BAILLY LLP FOR A NOT-TO-EXCEED TOTAL OF $75,000 WITH A TERM FROM EXECUTION THROUGH DECEMBER 31, 2024 WHEREAS, the City Council authorized the Finance Department to add an additional temporary staff or consultant to help cover department Director level activities while the Administrative Services Director completes a Citywide Forensic Investigation; and WHEREAS, Eide Bailly LLP offers consulting services to assist with year-end close processes, finding efficiencies for that process, and documenting and training staff on the procedures implemented; and
WHEREAS, the consulting division of Eide Bailly is separate from the audit and attest division and qualifies as independent according to Generally Accepted Accounting Principles, including Governmental Accounting Standards, and Statements on Standards for Attestation Engagements and Statements on Standards for Consulting Services as promulgated by the American Institute of Certified Public Accountants (AICPA); and WHEREAS, Eide Bailly will assist in the development of modified or enhanced reconciliation processes and related templates, provide assistance with enhancements to or preparation of year-end Provided By Client (PBC) schedules to facilitate a timelier yearend close process, provide assistance with the development and implementation of a structured internal review process in the City’s Finance Department for key transactions and year-end PBC schedules, provide assistance with the year-end close process for the fiscal year ending June 30, 2024, and provide training for City staff on use of the processes, templates, and schedules developed as part of this engagement.

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, attached hereto as Exhibit A, with Eide Bailly LLP for a not-to-exceed total of $75,000, and authorizes the City Manager to make necessary non-substantive changes and to execute said Agreement.

SECTION 2. The City Council authorizes the City Manager, or designee, to make necessary budget adjustments, appropriations, and transfers related to this resolution.

SECTION 3. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions. 896
Resolution 2024-73

Page 2 of 4 ends

PASSED, APPROVED AND ADOPTED this 14th day of May 2024.

Alberto Sanchez, Mayor
City of Banning
ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:

Serita R. Young, City Attorney
Richards, Watson & Gershon
897
Resolution 2024-73

Page 3 of 4 ends

CERTIFICATION:

I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-73, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 14th day of May 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
898
Resolution 2024-73

Page 4 of 4 ends

EXHIBIT A
Agreement for Professional Services (C01019) for
Financial Year End Closeout Processes (Eide Bailly LLP) 899
AGREEMENT FOR PROFESSIONAL SERVICES (C01019) FOR

FINANCIAL YEAR END CLOSEOUT PROCESSES BY AND BETWEEN

CITY OF BANNING AND EIDE BAILLY LLP
THIS AGREEMENT FOR PROFESSIONAL SERVICES (herein “Agreement”) is made and entered into this day: ___________________, (“Effective Date”) by and between the CITY OF BANNING, a California municipal corporation (“City”) and Eide Bailly LLP, a Limited Liability Partnership (“Consultant”). City and Consultant are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”

RECITALS
A. City has sought a proposal for the performance of the services for Financial Year End Closeout Processes and as further defined and described particularly in Article 1 of this Agreement.

D. Pursuant to the City of Banning’s Municipal Code, City has authority to enter into this Agreement.

ARTICLE 1. SERVICES OF CONSULTANT

1.1 Scope of Services.

In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the “Scope of Services” attached hereto as Exhibit A and incorporated herein by this reference, which services may be referred to herein as the “Services” hereunder. As a material inducement to City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the Services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services described herein. Consultant covenants that it shall follow the highest professional standards in performing the Services required hereunder and that all materials will be of good quality, and fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional 900
-2-
standards” shall mean those standards of practice recognized by the American Institute of Certified Public Accountants (AICPA).

1.2 Contract Documents and Exhibits.

1.3 Compliance with Law.

1.4 Licenses, Permits, Fees and Assessments.

1.5 Familiarity with Services.

1.6 Prevention of Loss and Damages.

Consultant shall adopt reasonable methods during the Term (defined in Section 3.4) to furnish continuous protection to the work product, and the equipment, materials, papers, 901
-3-
documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Services by City, except such losses or damages as may be caused by City’s own negligence.

1.7 Further Responsibilities of Parties.

1.8 Additional Services.

1.9 Facilities and Equipment.

1.10 Special Requirements.

1.11 Corrections.
902
-4-
In addition to the indemnification obligations set forth in Article 4, and Sections 1.4, 1.13,

1.12 Party Representatives.

Name Title
Roger Alfaro, CPA Partner
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Consultant Representative were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing Consultant Representative shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the Services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the Consultant Representative. For purposes of this Agreement, the foregoing Consultant Representative may not be replaced nor may their responsibilities be substantially reduced or reassigned by Consultant without the express written approval of City, which shall not unreasonably be withheld. It shall be Consultant’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the Services, and Consultant shall refer any decisions which must be made by City to the Contract Officer.
2) Consultant’s Personnel: Consultant has, or will secure at its own expense, all personnel required to perform the Services required under this Agreement. All of the Services required under this Agreement shall be performed by Consultant or under its supervision, and all personnel engaged in the Services shall be qualified to perform such Services. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and sub-contractors, if any, assigned to perform the Services required under this Agreement.

1.13 Independent Contractor.

A. Consultant is an independent contractor and not an employee of City.

1.14 Prohibition Against Subcontracting or Assignment.

The experience, knowledge, capability and reputation of Consultant, the Consultant Representative and employees were a substantial inducement for City to enter into this Agreement.

Therefore, Consultant shall not contract with any other entity to perform in whole or in part the Services required hereunder without the express written approval of City, except as noted in Exhibit A. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twentyfive percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release Consultant or any surety of Consultant of any liability hereunder without the express consent of City.

ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.

2.1 Contract Sum.

Subject to any limitations set forth in this Agreement, as full compensation for Services satisfactorily rendered, City shall pay Consultant at the hourly rates set forth in Exhibit C-1 and the not-to-exceed sub-budget rates set forth in the “Schedule of Compensation” attached hereto as Exhibit C and incorporated herein by this reference. In no event shall Consultant be paid more than Seventy-Five Thousand Dollars ($75,000.00) (the “Contract Sum”). The Contract Sum shall 904
-6-
include the attendance of Consultant at all project meetings reasonably deemed necessary by City.

Coordination of the performance of the Services with City is a critical component of the Services.

If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending those meetings.

2.2 Method of Compensation.

2.3 Reimbursable Expenses.

2.4 Unauthorized Services and Expenses.

2.5 Invoices.

Each month Consultant shall furnish to City an original invoice for all Services performed and expenses incurred during the preceding month. Each such invoice shall contain all of the information set forth in Section III of Exhibit C to this Agreement. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement. Consultant shall not invoice City for any duplicate Services performed by more than one person.

2.6 Waiver.

Payment to Consultant for Services performed pursuant to this Agreement shall not be deemed to waive any defects in Services performed by Consultant.

ARTICLE 3. PERFORMANCE SCHEDULE

3.1 Time of Essence.

3.2 Schedule of Performance.

3.3 Force Majeure.

1.8) shall be final and conclusive upon the Parties to this Agreement. In no event shall Consultant be entitled to recover damages against City for any delay in the performance of this Agreement, however caused; Consultant’s sole remedy shall be the extension of the Agreement pursuant to this Section.

3.4 Term.

The Term of this Agreement shall be from the Effective Date through December 31, 2024, unless sooner terminated as provided in Article 6 of this Agreement or extended as provided in Sections 1.8 and 3.3 of this Agreement. Maximum term and any subsequent amendment or modification shall not exceed five (5) years..
906
-8-
ARTICLE 4. INSURANCE AND INDEMNIFICATION

4.1 Minimum Scope and Limits of Insurance.

Consultant shall procure and at all times during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows:

B. Automobile Liability Insurance for any non-owned or hired vehicle used in connection with the performance of this Agreement with a combined single limit of $1,000,000.00 per accident for bodily injury and property damage. If Consultant does not use any non-owned or hired vehicles in the performance of Services under this Agreement, Consultant shall obtain a nonowned auto endorsement to the Commercial General Liability policy.

D. Professional Liability/Errors and Omissions Insurance with minimum limits of $1,000,000.00 per claim and in the aggregate.

4.2 Acceptability of Insurers.

The insurance policies required under this Article shall be issued by an insurer legally allowed to write insurance in the State of California with a rating of A-:VII or better in the latest edition of the A.M. Best Insurance Rating Guide. Self-insurance shall not be considered to comply with the insurance requirements under this Article.

4.3 Additional Insured.

The commercial general and automobile liability policies shall contain an endorsement naming City, its officers, employees, agents and volunteers as additional insureds.

4.4 Primary and Non-Contributing.

4.5 Consultant’s Waiver of Subrogation.

4.6 Reserved

4.7 Not used. Cancellations or Modifications to Coverage.

Consultant shall not cancel, reduce or otherwise modify the insurance policies required by this Article during the term of this Agreement. The commercial general and automobile liability policies required under this Agreement shall be endorsed to state that should the issuing insurer cancel the policy before the expiration date, the issuing insurer will endeavor to mail 30 days’ prior written notice to City. If any insurance policy required under this Article is canceled or reduced in coverage or limits, Consultant shall, within seven (7) Business Days (as defined in Section 8.12) of notice from the insurer, phone, fax or notify City via certified mail, return receipt requested, of the cancellation of or changes to the policy.

4.8 City Remedy for Noncompliance.

Consultant shall promptly reimburse City for any premium paid by City, or City may withhold amounts sufficient to pay the premiums from payments due to Consultant.

4.9 Evidence of Insurance.

Consultant shall provide proof to the City Clerk that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Consultant shall provide such proof prior to the expiration of the coverages.

4.10 Indemnity Requirements not Limiting.

Procurement of insurance by Consultant shall not be construed as a limitation of Consultant’s liability or as full performance of Consultant’s duty to indemnify City under this Agreement.

4.11 Sub-contractor Insurance Requirements.

Consultant shall require each of its sub-contractors that perform Services under this 908
-10-
Agreement to maintain insurance coverage that meets all of the requirements of this Article.

4.12 Indemnification, Hold Harmless, and Duty to Defend.

A. Indemnification of City.
1) Indemnities. To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns, and those City agents serving as independent contractors in the role of City officials (collectively, “Indemnitees”) from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively “Claims”), at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant, its officers, agents, servants, employees, sub-contractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement, and attributable to the fault of Consultant. Consultant’s total liability to the Indemnitees and anyone claiming by, through, or under the Indemnitees, shall not exceed to the percentage share that Consultant’s negligence bears to the total negligence of the Indemnitees, Consultant, and all other negligent entities and individuals, as determined by court decision or by the agreement of the Parties.
2) Consultant shall pay all required taxes on amounts paid to Consultant under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant shall fully comply with the workers’ compensation law regarding Consultant and Consultant’s employees. Consultant shall indemnify and hold City harmless from any failure of Consultant to comply with applicable workers’ compensation laws.

City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this subparagraph A.2. 3) Consultant shall obtain executed indemnity agreements with provisions identical to those in this Article from each and every sub-contractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. If Consultant fails to obtain such indemnities, Consultant shall be fully responsible and indemnify and hold harmless the Indemnitees from and against any and all Claims, in law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant’s sub-contractor, its officers, agents, servants, employees, sub-contractors, materialmen, contractors or their officers, agents, servants or employees (or any entity or individual that Consultant’s sub-contractor shall bear the legal liability thereof) in the performance of this Agreement, and attributable to the fault of Consultant’s subcontractors and any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. Consultant’s total liability to the Indemnitees and anyone claiming by, through, or under the Indemnitees, shall not exceed to the percentage share that 909
-11-
Consultant’s sub-contractors’ and any other person’s or entity’s involved by, for, with or on behalf of Consultant negligence bears to the total negligence of the Indemnitees, Consultant, and all other negligent entities and individuals, as determined by court decision or by the agreement of the Parties.

B. Workers’ Compensation Acts not Limiting. Consultant's indemnifications and obligations under this Article, or any other provision of this Agreement, shall not be limited by the provisions of any workers' compensation act or similar act. Consultant expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents, employees and volunteers.

D. Survival of Terms. Consultant’s indemnifications and obligations under this Article shall survive the expiration or termination of this Agreement.

ARTICLE 5. RECORDS, REPORTS, AND RELEASE OF INFORMATION

5.1 Service Records.

Consultant shall keep, and require sub-contractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and Services performed hereunder (the “Service Records”), as shall be necessary to perform the Services required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. Any and all such Service Records shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such Service Records at all times during normal business hours of City, including the right to inspect, copy, audit and make copies and transcripts from such Service Records. Such Service Records shall be maintained for a period of three (3) years following completion of the Services hereunder, and City shall have access to such Service Records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the Service Records may be given to City, and access shall be provided by Consultant’s successor in interest (“Consultant’s Successor”). If custody of the Service Records is given to Consultant’s Successor, Consultant shall give written notice to City of the transfer of the Service Records to Consultant’s Successor. The notice shall include contact information (address and telephone number) for Consultant’s Successor, and access shall be provided to City by Consultant’s Successor.

5.2 Reports.

Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that City is greatly concerned about the cost of Services to be performed pursuant to this Agreement. For this reason, Consultant agrees that if 910
-12-
Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services contemplated herein, Consultant shall promptly notify the Contract Officer of that fact, circumstance, technique or event and the estimated increased or decreased cost related thereto.

5.3 Ownership of Documents.

All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials specifically prepared by Consultant, its employees, sub-contractors and agents for and required to be delivered to City under this Agreement (the “Consultant Documents”) shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement.

Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the Consultant Documents hereunder. Any use, reuse or assignment of such completed Consultant Documents for other projects and/or use of uncompleted Consultant Documents without specific written authorization by Consultant will be at City’s sole risk and without liability to Consultant, and Consultant’s guarantee and warranties shall not extend to such use or assignment. Consultant may retain copies of such Consultant Documents for its own use. Consultant shall have an unrestricted right to use the concepts embodied therein. All sub-contractors shall provide for assignment to City of all Consultant Documents specifically prepared by them which are required to be delivered to City under this Agreement; and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom.

5.4 Confidentiality and Release of Information.

A. All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer, unless required by law or applicable professional standards.

D. Consultant shall promptly notify City should Consultant, its officers, employees, agents or sub-contractors be served with any summons, complaint, subpoena, notice 911
-13-
of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any Party regarding this Agreement and the Services performed thereunder, if lawful. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite the response.

ARTICLE 6. ENFORCEMENT OF AGREEMENT AND TERMINATION

6.1 California Law.

6.2 Disputes; Default.

In the event that City determines Consultant is in default under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any Services performed after the date of default and Consultant shall not be required to continue to perform until the matter is resolved. In addition to the provisions of Section 4.8, and the right to terminate pursuant to Section 6.7, if the City Manager determines that Consultant is in default in the performance of any of the terms or conditions of this Agreement, City may serve Consultant with written notice of the default. Consultant shall have ten (10) calendar days after service upon it of the notice in which to cure the default by rendering performance. In the event that Consultant fails to cure its default within such period of time, City may, notwithstanding any other provision of this Agreement, terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.

6.3 Retention of Funds.

Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement): (i) any payment amount of which may be in dispute hereunder or which is necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, (ii) all amounts retained pursuant to the provisions of Section 4.8, (iii) all amounts for which City may be liable to third parties, by reason of Consultant’s acts or omissions in performing or failing to perform Consultant’s obligation under this Agreement, and (iv) all payments due or that become due to Consultant during the period that Consultant or any of its sub-contractors fail to maintain any required insurance in full force and effect, until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City, as provided in Section 4.9, 912
-14-
above. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Consultant to insure, indemnify, and protect City as elsewhere provided herein.

6.4 Waiver.

Any waiver by either Party of any default must be in writing, and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.

6.5 Rights and Remedies are Cumulative.

Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.

6.6 Legal Action.

6.7 Termination Prior to Expiration of Term.

This Article 6 shall govern any termination of this Agreement except as specifically provided in Section 6.2 for termination for default of Consultant. City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days’ written notice to Consultant, except that where termination is due to the fault of Consultant, the period of notice may be a shorter time as may be determined by the Contract Officer. In addition, Consultant reserves the right to terminate this Agreement at any time, with or without cause, upon sixty (60) days’ written notice to City, except that where termination is due to the fault of City, the period of notice may be a shorter time as Consultant may determine. Upon receipt of any notice of termination, Consultant shall immediately cease all Services hereunder except such as may be specifically approved by the Contract Officer. Except where Consultant has initiated termination, 913
-15-
Consultant shall be entitled to compensation for all Services rendered prior to the effective date of the notice of termination and for any Services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 6.3. In the event Consultant has initiated termination, Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating Party need not provide the non-terminating Party with the opportunity to cure pursuant to Section 6.2.

6.8 Attorneys’ Fees.

ARTICLE 7. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION

7.1 Non-liability of City Officers and Employees.

7.2 Conflict of Interest.

No officer or employee of City shall have any direct or indirect financial interest in this Agreement within the scope of Government Code section 1090, nor shall any such officer or employee make, participate in making, or use his or her official position to influence, any City decision relating to the Agreement which has a material financial effect on his or her financial interests or the financial interests of any corporation, partnership or association in which he or she is, directly or indirectly, interested, in violation of any State statute or regulation. Consultant warrants that it has not paid or given, and will not pay or give any third party any money or other consideration for obtaining this Agreement.
914
-16-
Consultant and its officers, employees, associates and sub-contractors, if any, shall comply with all conflict of interest statutes of the State of California applicable to Consultant’s Services under this Agreement, including the Political Reform Act (Gov. Code § 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Consultant may perform similar services for other clients; but Consultant and its officers, employees, associates and subcontractors shall not, without the Contract Officer’s prior written approval, perform services for another person or entity for whom Consultant is not currently performing services that would require Consultant or one of its officers, employees, associates or sub-contractors to abstain from a decision under this Agreement pursuant to a conflict of interest statute. Consultant shall incorporate a clause substantially similar to this Section into any subcontract that Consultant executes in connection with the performance of this Agreement.

7.3 Covenant Against Discrimination.

Consultant shall take affirmative action to insure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry, or other protected class.

7.4 Unauthorized Aliens.

ARTICLE 8. MISCELLANEOUS PROVISIONS

8.1 Notices.

Any notice, demand, request, document, consent, approval, bill, invoice, report or other communication required or permitted under this Agreement shall be in writing and conclusively deemed effective: (a) on confirmed delivery by courier service or overnight delivery service during Consultant’s and City’s regular business hours; or (b) three (3) Business Days after deposit in the United States mail, by certified or registered mail, and addressed to the Party to be notified as set forth below:
915
-17-
If to City Attn: Lincoln Bogard
Deputy City Manager/Admin Svcs. Director
City of Banning
99 East Ramsey Street
Banning, California 92220
Email: [email protected]
With a courtesy copy to: Serita R. Young, City Attorney Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, California 90071
Email: [email protected]
If to Consultant: Attn: Roger Alfario
Partner
Eide Bailly LLP
10681 Foothill Blved, Ste.300
Rancho Cucamonga, CA 91730
Email: [email protected]

8.2 Interpretation.

8.3 Counterparts.

This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.

8.4 Integration; Amendment.

8.5 Severability.

8.6 Mutual Cooperation.

8.7 No Third Party Beneficiaries Intended.

8.8 Final Payment Acceptance Constitutes Release.

8.9 Non-Appropriation of Funds.

8.10 Headings.

8.11 Word Usage.

8.12 Business Days.
“Business Days” refers to days that the Banning City Hall is open for business.

8.13 Corporate Authority.

The persons executing this Agreement on behalf of the Parties hereto warrant that (i): such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of that Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which that Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.

8.14 Electronic Signatures.

Each Party may adopt as its signature an electronic identification consisting of a symbol or code that is affixed to or contained in each document transmitted by such Party (“electronic signature”). The Parties hereto herby agree that electronic signatures are acceptable, shall have the same force and effect under the law as original wet signatures, and shall be sufficient to verify that the Parties have executed this Agreement and such other documents transmitted by the Parties.
[SIGNATURES ON FOLLOWING PAGE]
918
-20-
IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first hereinabove written.

CITY OF BANNING CONSULTANT: EIDE BAILLY LLP
Douglas Schulze, Date
City Manager
NAME: Date
TITLE:

NAME: Date
TITLE:

ATTEST:

Tax ID No.

Caroline Patton Date
Administrative City Clerk
Address:

APPROVED AS TO FORM:

Richards, Watson & Gershon
City Council Approval:

Serita R. Young Date
City Attorney
NOTE: PROOF OF AUTHORITY TO BIND CONTRACTING PARTY REQUIRED. APPROPRIATE

ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY.
919
Exhibit “A”-1
11303-0001\2825984v1.doc
EXHIBIT “A”

SCOPE OF SERVICES
I. Consultant will perform the following Services in connection with providing Financial Year End Closing Processes prepared in connection therewith:

II. As part of the Services, Consultant will prepare and deliver the following tangible work products and services to City:
920
Exhibit “A”-2
11303-0001\2825984v1.doc
921
Exhibit “A”-3
11303-0001\2825984v1.doc
922
Exhibit “A”-4
11303-0001\2825984v1.doc
923
Exhibit “A”-5
11303-0001\2825984v1.doc
III. In addition to the requirements of Parts I and II of this Scope of Services, during the performance of the Services, Consultant will keep City appraised through periodic status reports regarding the performance of the Services under this Agreement as set forth below and in Section 5.2, by the following means:
a. In-person meetings and/or teleconferences.
b. Email updates/questions to applicant team and City while reviews are underway.
c. Conference calls.
924
Exhibit “B”-1
EXHIBIT “B”

SPECIAL REQUIREMENTS

NONE REQUIRED
925
Exhibit “C”-1
11303-0001\2825984v1.doc
EXHIBIT “C”

SCHEDULE OF COMPENSATION
I. Consultant shall perform the following tasks (“Tasks”) not to exceed the rates as stated in Exhibit “C-1”
II. Within the budgeted amounts for each Task, and with the approval of the Contract Officer, funds may be shifted from one Task sub-budget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.8.

III. City will compensate Consultant for the Services performed upon submission of a valid invoice. Each invoice is to include:

A. Line items for all personnel describing the Services performed, the number of hours worked, and the hourly rate.

B. Line items for all materials and equipment properly charged to the Services.

C. Line items for all other approved reimbursable expenses claimed, with supporting documentation.

D. Line items for all approved sub-contractor labor, supplies, equipment, materials, and travel properly charged to the Services.

V. Consultant’s billing rates for all personnel are attached as Exhibit C-1. 926
Exhibit “C-1”-1
EXHIBIT “C-1”
CONSULTANT’S BILLING RATE AND TASK SCHEDULE
927
Exhibit “D”- 1
EXHIBIT “D”

SCHEDULE OF PERFORMANCE
I. Consultant shall perform all Services timely, and deliver the specified tangible work products as determined in the initial ‘kick-off’ meeting between City and Consultant.

II. The Contract Officer may approve extensions for performance of the Services in accordance with Sections 1.8 and 3.3.
928
Exhibit “D-1”- 1
EXHIBIT “D-1”

PROPOSED PROJECT SCHEDULE
929
What inspires you, inspires us. | eidebailly.com
10681 Foothill Blvd., Ste. 300 | Rancho Cucamonga, CA 91730-3831 | T 909.466.4410 | F 909.466.4431 | EOE 1 April 22, 2024
Lincoln Bogard
Deputy City Manager
City of Banning
99 E. Ramsey Street
Banning, CA 92220
This letter outlines the understanding of the terms and objectives of the consulting engagement between Eide Bailly LLP (Eide Bailly) and the City of Banning, California (you).

Scope of Engagement
We will work with you to provide consulting services in connection with year-end close services, to include:
• Development of modified or enhanced reconciliation processes and related templates. • Assistance with enhancements to or preparation of year-end PBC schedules to facilitate a timelier yearend close process. • Assistance with the development and implementation of a structured internal review process in the City’s Finance Department for key transactions and year-end PBC schedules. • Assistance with the year-end close process for the fiscal year ending June 30, 2024, and training for City staff on use of the processes, templates, and schedules developed as part of this engagement.

Our engagement will be performed under the Statements on Standards for Consulting Services issued by the American Institute of Certified Public Accountants (AICPA). We will not provide audit, review, compilation, or financial statement preparation services to any historical or prospective financial information or provide attestation services under the AICPA Statements on Standards for Attestation Engagements and assume no responsibility for any such information.

You will provide us, as promptly as possible, all requested information and documentation reasonably deemed necessary or desirable by us in connection with the engagement. You represent and warrant that all information and documentation provided or to be provided to us is true, correct, and complete, to the best of your knowledge and belief. We are authorized to rely upon such information and documentation without independent investigation or verification.

We may use third party service providers and/or affiliated entities (including Eide Bailly Shared Services Private Limited) (collectively, “service providers”) in order to facilitate delivering our services to you. Our use of service providers may require access to client information by the service provider. We will take reasonable precautions to determine that they have the appropriate procedures in place to prevent the unauthorized release of confidential information to others. We will remain responsible for the confidentiality of client information accessed by such service provider and any work performed by such service provider. You acknowledge that your information may be disclosed to such service providers, including those outside the United States.

We agree to retain our work papers for a period of at least eight years from the date of our report. 930
2 Timeline
We will begin our work upon acceptance of this engagement agreement. We would expect to have our work completed by December 31, 2024. This timetable assumes the timely receipt of requested information and the cooperation of the parties involved. If delays are experienced in receiving information, the delivery of our work will be delayed accordingly.

Fees
Our fees are based on the amount of time required at various levels of responsibility, plus actual out-of-pocket expenses, including administrative charges. Eide Bailly is conscious of our clients’ desire to achieve results at a reasonable cost, and we are mindful of that when choosing which level of staff to assign to an engagement. We estimate that our fees for the engagement will not exceed $75,000. Actual costs will be dependent on the actual hours required to complete the assigned tasks. If the scope of work is determined to be significantly different than anticipated, we will communicate with you prior to undertaking additional tasks so that there are no surprises. We will notify you immediately of any circumstances we encounter that could significantly affect this initial fee estimate. Invoices are payable upon presentation.

Our work will be billed at the rates shown in the table below.

Staff Level Hourly Rates
Partner $371
Director $350
Senior Manager $318
Manager $265
Supervisor $235
Senior Associate $201
Associate $159
We recognize that clients want to control the cost of multi-year contracts by providing transparency on the front end regarding future rate increases. We adjust our rates on August 1st of each year. On August 1 of each year that you continue your relationship with the firm, the fixed amount and standard rate schedule shown above will be adjusted by the annual change in related labor costs for your area as of the preceding May 1st.

The ability to perform and complete our engagement consistent with the estimated fees included above depends upon the quality of your underlying accounting records and any other information required for the completion of our work, as well as the timeliness of your personnel in providing information and responding to our requests. To assist with this process, we will provide you with a Prepared-by-Client (PBC) request that identifies the information we will require to perform our engagement, as well as a planned timeline for the engagement. A failure to provide this information in an accurate and timely manner may result in an increase in our fees and/or a delay in the completion of our engagement.

We may be requested to make certain engagement documentation available to outside parties, including regulators, pursuant to authority provided by law or regulation or applicable professional standards. If requested, access to such engagement documentation will be provided under the supervision of Eide Bailly LLP’s personnel. Furthermore, upon request, we may provide copies of selected engagement documentation to the outside party, who may intend, or decide, to distribute the copies of information contained therein to others, including other governmental agencies. We will be compensated for any time and expenses, including time and expenses of legal counsel, we may incur in making such engagement documentation available or in conducting or responding to discovery requests or participating as a witness or otherwise in any legal, regulatory, or other 931
3 proceedings as a result of our Firm’s performance of these services. You and your attorney will receive, if lawful, a copy of every subpoena we are asked to respond to on your behalf and will have the ability to control the extent of the discovery process to control the costs you may incur.

Should our relationship terminate before our work is completed, you will be billed for services to the date of termination. All bills are payable upon receipt. A service charge of 1% per month, which is an annual rate of 12%, will be added to all accounts unpaid 30 days after billing date. If collection action is necessary, expenses and reasonable attorney’s fees will be added to the amount due.

The City of Banning accepts responsibility for the results of the services being provided and agrees to perform the following functions in connection with this engagement:
• Make all management decisions and perform all management functions. • Designate a competent individual to oversee the services. • Evaluate the adequacy and results of the services performed. • Accept responsibility for the results of the services. • Establish and maintain internal controls, including monitoring ongoing activities.

Eide Bailly, LLP has owners that are not licensed as certified public accountants as permitted under Section 5079 of the California Business Code. It is not anticipated that any of the non-licensee owners will be performing services for the City of Banning.

MEDIATION
Any disagreement, controversy, or claim arising out of or related to any aspect of our services or relationship with you (hereafter a “Dispute”) shall, as a precondition to litigation in court, first be submitted to mediation. In mediation, the parties attempt to reach an amicable resolution of the Dispute with the aid of an impartial mediator. Mediation shall begin by service of a written demand. The mediator will be selected by mutual agreement. If we cannot agree on a mediator, one shall be designated by the American Arbitration Association (“AAA”). Mediation shall be conducted with the parties in person in Rancho Cucamonga, California. Each party will bear its own costs in the mediation. The fees and expenses of the mediator will be shared equally by the parties. Neither party may commence a lawsuit until the mediator declares an impasse.

LIMITED INDEMNITY
Eide Bailly LLP and its partners, affiliates, officers, and employees (collectively “Eide Bailly”) shall not be responsible for any misstatements in the information provided to us to complete our engagement that we may fail to detect as a result of misrepresentations or concealment of information by any of your owners, directors, officers, or employees. You shall indemnify and hold Eide Bailly harmless from any claims, losses, settlements, judgments, awards, damages, and attorneys’ fees arising from any such misstatement or concealment of information.

If through no fault of Eide Bailly we are named as a party to a dispute between you and a third party, you shall indemnify and hold Eide Bailly harmless against any losses, damages, settlements, judgments, awards, and the costs of litigation (including attorneys’ fees) we incur in connection with the dispute.

Eide Bailly shall not be entitled to indemnification under this agreement unless the services were performed in accordance with professional standards in all material respects. 932
4 LIMITATION OF LIABILITY
The exclusive remedy available to you for any alleged loss or damages arising from or related to Eide Bailly’s services or relationship with you shall be the right to pursue claims for actual damages that are directly caused by Eide Bailly’s breach of this agreement or Eide Bailly’s violation of applicable professional standards. In no event shall Eide Bailly’s aggregate liability to you exceed two times fees paid under this agreement, nor shall Eide Bailly ever be liable to you for incidental, consequential, punitive, or exemplary damages, or attorneys’ fees.

TIME LIMITATION
You may not bring any legal proceeding against Eide Bailly unless it is commenced within twenty-four (24) months (“Limitation Period”) after the date when we delivered our report, return, or other deliverable under this agreement to you, regardless of whether we do other services for you or that may relate to the engagement. The Limitation Period applies and begins to run even if you have not suffered any damage or loss, or have not become aware of a possible Dispute.

GOVERNING LAW AND VENUE
Any Dispute between us, including any Dispute related to the engagement contemplated by this agreement, shall be governed by Minnesota law. Any unresolved Dispute shall be submitted to a federal or state court located in Minneapolis, Minnesota.

ASSIGNMENTS PROHIBITED
You shall not assign, sell, barter, or transfer any legal rights, causes of actions, claims, or disputes you may have against Eide Bailly to any person.

Please sign and return the attached copy of this letter to indicate your acknowledgment of, and agreement with, the arrangements for our engagement including our respective responsibilities.

We appreciate the opportunity to be of service to you and look forward to working with you and your staff.

Respectfully,
__________________________
Dr. Bradford Rockabrand, CPA
Partner
933
5 *************************************************************** RESPONSE:

This letter correctly sets forth our understanding.

Acknowledged and agreed on behalf of the City of Banning, California by:

Name: _______________________________________________________________ Title: ________________________________________________________________ Date: ________________________________________________________________ 934
935
936
937
938
939
940

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: May 14, 2024
SUBJECT: Consideration of Resolution 2024-74, Confirming the Levy and Collection of Assessments within the City of Banning’s Landscape Maintenance District No. 1 for Fiscal Year 2024/2025, Pursuant to the Provisions of Part 2 of Division 15 of the California Streets and Highways Code RECOMMENDATION:

Conduct the public hearing and if no objections to the levy and collection of the proposed assessments are received, adopt Resolution 2024-74.

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 LMD No. 1, (“the District”). An additional five tracts and three tentative tracts were annexed (Annexation No. 1) into LMD No. 1 when the City Council approved Resolution 2005-36 on May 10, 2005. Tract No. 32370 was annexed into the LMD on November 14, 2023 when the City Council approved Annexation No. 2. A map displaying the District and its’ Zones is shown as Attachment 2.

On February 13, 2024 the City Council approved Resolution 2024-21, initiating proceedings for the fiscal year update of LMD No. 1 and ordering the City Engineer to prepare and to file a Report in accordance with the 1972 Act. The District, by special benefit assessments, provides funding for the operation and maintenance of certain landscape areas within the City of Banning, all of which were constructed as part of private development projects and all of which are located in the public right-of-way. The 1972 Act requires that assessments be levied according to benefit rather than according to assessed value.

Subsequently, on March 26, 2024, the City Council adopted Resolution 2024-51, approving the Engineer’s Report. Resolution 2024-XXX, if approved, will confirm the assessments for the Fiscal Year 2024/2025. The schedule updating LMD No. 1 is shown as Attachment 3, and the Notice of Public Hearing advertised in the Record Gazette on April 26, 2024 is shown on Attachment 4.

For Fiscal Year 2024/2025, the Engineer’s Report does reflect a Consumer Price Index (CPI) percentage increase of 2.88% on the assessments over the last fiscal year applied only to those tracts annexed into the District in 2005 and 2023, respectively: Tracts 28252, 30793, 31833, 31834, 31835, 30906, and 32370, zones six through eleven. The annual Engineer’s Report approved as part of Resolution 2024-51 lists the Assessment Unit (AU) rates and costs to be levied to the property owners within LMD No. 1 for FY 2024/2025 and a summary is shown as Attachment 5.
941
JUSTIFICATION:

The City Council approved the formation of LMD No. 1 by adopting Resolution No. 1990-59 on August 14, 1990. The adoption of this Resolution will enable the City of Banning to assess the property owners located within the District to provide for the funding required to maintain landscape areas located within the public right-of-way directly benefiting said property owners FISCAL IMPACT:

Based on the proposed assessments in the Engineer’s Report, the estimated revenues for Fiscal Year 2024/25 for LMD No. 1 will be approximately $159,169.91, with the 2.88% CPI increase applied to the existing tracts annexed into the District in 2005 and 2023, respectively: Tracts 28252, 30793, 31833, 31834, 31835 and 30906, Zones six through ten and Tract 32370, Zone 11 of Annexation No. 2. If approved, the annual assessment for a single-family dwelling in zones six through ten would increase from the current rate of $252.63 to $259.91 and for Zone 11 from $392.64 to $403.95.

The estimated expenses for FY 24/25 are $155,028.11 (based on FY 2023/2024 actual costs), a surplus of approximately $4,141.80 for the overall District. It should be noted that each zone within the District has its own fund balance separate from other zones.

Attachment 6 identifies funding reserve balances in each zone. Many of the zones (Zones 1,3,4, and 5) do not have sufficient reserves to cover the projected expenses in future years; therefore, a further reduction in maintenance services is imminent to reduce costs.

ALTERNATIVES:

1. Adopt Resolution 2024-74 as recommended.

2. Adopt Resolution 2024-74 with modifications.

3. Do not approve Resolution 2024-74 and provide alternative direction to staff.

ATTACHMENTS:

1. Resolution 2024-74, LMD No. 1 Levy.doc

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

3. Attach. 3- Tentative Schedule for Updating LMD No. 1.doc

4. Attach. 4 Proof of Publication.pdf

5. Attach. 5 LMD No. 1 Tracts, Zones and Assessments for FY 24-25.docx

6. Attach. 6 Zone Funding.docx

7. Attach. 7 CC Resolution No. 2024-021.pdf

8. Attach. 8 CC Resolution No. 2024-051.pdf

9. Exhibit A to Reso LMD No.1 Map and Zones.pdf
942
Resolution 2024-74

Page 1 of 5 ends

RESOLUTION 2024-74

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

CONFIRMING THE LEVY AND COLLECTION OF ASSESSMENTS WITHIN THE CITY OF BANNING’S LANDSCAPE MAINTENANCE DISTRICT NO. 1 FOR FISCAL YEAR 2024/2025, PURSUANT TO THE PROVISIONS OF PART 2 OF DIVISION 15 OF THE

CALIFORNIA STREETS AND HIGHWAYS CODE
WHEREAS, at its regularly scheduled meeting on February 13, 2024, the City Council of the City of Banning has by its Resolution 2024-21 initiated proceedings for the levy and collection of assessments for the 2024/2025 Fiscal Year for Landscape Maintenance District (LMD) No. 1, pursuant to the terms and provisions of the “Landscaping and Lighting Act of 1972,” being Part 2 of Division 15 of the California Streets and Highways Code; and
WHEREAS, at its regularly scheduled meeting on March 26, 2024, the City Council adopted its Resolution 2024-51, approving the Engineer’s Report (Report) of the City Engineer and declaring the intention of the City Council to order the levy and collection of assessments to pay for the costs and expenses of maintaining and operating existing and proposed public landscaped areas in the City of Banning for Fiscal Year commencing July 1, 2024 and ending June 30, 2025; and
WHEREAS, as stated in the Engineer’s Report dated March of 2024, a 2.88% Consumer Price Index (CPI) increase will only be applied to the existing tracts annexed into the LMD (“the District”) in 2005 (Annexation No.1) and in 2023 (Annexation No. 2); and
WHEREAS, after holding a duly noticed Public Hearing on May 14, 2024 to consider public opinion on the matter, the City Council orders the levy and collection of assessments to pay for the costs and expenses of maintaining and servicing existing and proposed public landscaping facilities in the City of Banning for the Fiscal Year commencing July 1, 2024 and ending June 30, 2025.

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

SECTION 1. The above recitals are all true and correct.

SECTION 2. Following notice duly given by publication, the City Council has held a full and fair Public Hearing regarding the levy of the proposed assessment within Landscape Maintenance District No. 1 for the Fiscal Year commencing July 1, 2024 and ending June 30, 2025, to pay for the costs and expenses of maintaining and servicing existing and proposed public landscaping and storm drain facilities installed and constructed within public places in the City of Banning, pursuant to the terms and provisions of the “Landscaping and Lighting Act of 1972,” being Part 2 of Division 15 of the California Streets and Highways Code. All interested persons were offered the opportunity to hear 943
Resolution 2024-74

Page 2 of 5 ends

and be heard regarding protests and objections to the levy and collection of the proposed assessment against lots or parcels of real property within City of Banning, Landscape Maintenance District No. 1. No objections to the levy and collection of the proposed assessments for the Fiscal Year commencing on July 1, 2024 and ending on June 30, 2025, were received by the City Council. The boundaries of the District are located in the City of Banning, County of Riverside, and are shown on Exhibit “A” to this Resolution and on the District Location Map in Section 2 of the Report.

SECTION 3. The City Council hereby orders the operation and maintenance of the existing and proposed public landscape facilities installed and constructed in public places in the City of Banning and hereby confirms the diagram and assessment set forth in the Engineer’s Report.

SECTION 4. The assessment is in compliance with the provisions of the “Landscaping and Lighting Act of 1972,” being Part 2 of Division 15 of the California Streets and Highways Code and with any applicable provisions of Proposition 218.

SECTION 5. The assessment is levied without regard to property valuation and is Riverside County Property Tax Fund Number 68-2058-FC (Zone 1) and 68-0297-FC through 68-0305-FC (Zones two through ten) and 68-2066-FC, Zone 11.

SECTION 6. The assessment is levied for the purpose of paying the costs and expenses of maintaining and servicing existing and proposed public landscaping areas installed and constructed in public places in the City of Banning for the Fiscal Year commencing on July 1, 2024 and ending on June 30, 2025.

SECTION 7. The adoption of Resolution 2024-XXX constitutes the levy of an assessment for the Fiscal Year commencing on July 1, 2024 and ending on June 30, 2025.

SECTION 8. The operation, maintenance and servicing of public landscaping facilities shall be performed pursuant to law and the County Assessor/Recorder-Auditor of Riverside County shall enter on the County Assessment Roll opposite each lot or parcel of land the amount of the assessment and such assessments shall then be collected at the same time and in the same manner as the County taxes are collected. After collection by the County, the net amount of the assessments shall be paid to the City Treasurer.

SECTION 9. The Administrative Services Director shall deposit all monies representing assessments collected by the County to the credit of a special fund known as Improvement Fund, Landscape Maintenance District No. 1.

SECTION 10. The City Clerk is hereby authorized and directed to file the assessment, or a certified copy of the assessment, with the Riverside County, Assessor’s Office, together with a certified copy of Resolution 2024-XXX upon its adoption. 944
Resolution 2024-74

Page 3 of 5 ends

SECTION 11. A certified copy of the assessment shall be filed in the Office of the City Clerk, with a duplicate copy on file in the Office of the City Engineer and open for public review.

PASSED, APPROVED AND ADOPTED this 14th day of May 2024.

Alberto Sanchez, Mayor
City of Banning
ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:

Serita R. Young, City Attorney
Richards, Watson & Gershon
945
Resolution 2024-74

Page 4 of 5 ends

CERTIFICATION:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
946
Resolution 2024-74

Page 5 of 5 ends

EXHIBIT A
Landscape Maintenance District No. 1 Map with Zones
947
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
11 948
Resolution No. 2024-XXX
ATTACHMENT 3
(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 949
950
Resolution No. 2024-XXX
ATTACHMENT 5
Landscape Maintenance District No. 1 Tracts/Zones and Assessments for Fiscal Year 2024/2025
Tract No. No. of AU Zone
Proposed Cost/AU
(FY 2024/25)
22810 43 1 $108.90
22811 39 1 $108.90
22913 9 1 $108.90
30186 107 1 $108.90
30222 121 1 $108.90
21882 134 2 $113.31
23446 138 2 $113.31
29721 21 3 $113.31
32109 38 4 $113.31
23598 97 5 $98.91
28252 70 6 $259.91
30793 43 7 $259.91
31833 17 8 $259.91
31834 18 8 $259.91
31835 33 9 $259.91
30906* 87 10 $259.91
32370 19 11 $403.95
Total 1,034 $159,169.91
AU= Assessment Unit
CPI of 2.88% applied to 2005 Annexation No. 1 and 2023 Annexation No. 2 Tracts only, Zones 6 -11.
*Tract No. 30906 has a total of 303 AU; therefore, a total of 216 remain. 951
Resolution No. 2024-XXX
ATTACHMENT 6

PROJECTED ZONE RESERVE BALANCES
Zone 1 Zone 2 Zone 3 Zone 4 Zone 5 Zone 6 Zone 7 Zone 8 Zone 9 Zone 10 Zone 11 24/25
Reserve
Balance
Available
$43,035.08 $38,180.47 $2,947.76 $5,334.04 $11,885.46 $22,538.51 $13,845.08 $11,269.25 $10,625.30 $28,012.14 $9,507.92 24/25
Total
Costs
$53,376.15 $26,230.07 $4,882.09 $4,687.76 $13,411.88 $6,622.21 $7,824.13 $9,225.28 $6,991.04 $16,499.73 $5,337.75 24/25
Total
Revenue
$34,739.10 $30,820.32 $2,379.51 $4,305.78 $9,594.27 $18,193.70 $11,176.13 $9,096.85 $8,577.03 $22,612.17 $7,675.05 24/25
Rev. –
Expenses
(Costs)
($18,637.05) $4,590.25 ($2,442.58) ($381.98) ($3,817.61) $11,571.49 $3,352.00 ($128.43) $1,585.99 $6,112.44 $2,337.30 25/26
Reserve
Balance
$24,398.03 $42,770.72 $505.17 $4,952.05 $8,067.85 $34,110.00 $17,197.08 $11,140.82 $12,211.29 $34,124.58 $11,845.22 952
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.

Resolution 2024- 21

Page 1 of 3 ends

953
ATTEST:

Caroline Patton , Admin·
City of Banning

APPROVED AS TO FORM AND
LEGAL CONTENT:

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

Page 2 of 3 ends

954
CERTIFICATION:

I , Caroline Patton , Administrative City Clerk of the City of Bann ing , 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 : Flynn , Happe , Minjares , Sanchez , and Wallace .

NOES:

ABSENT:

ABSTAIN :

Resolution 2024- 21

Page 3 of 3 ends

Caroline Patton , Admi 1strative City Clerk
City of Banning , California
955
RESOLUTION 2024-51

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

DECLARING ITS INTENTION TO LEVY AND COLLECT ASSESSMENTS WITHIN THE CITY OF BANNING LANDSCAPE MAINTENANCE DISTRICT NO. 1 FOR FISCAL YEAR 2024- 25, APPROVING THE ENGINEER' S REPORT FOR FISCAL YEAR 2024- 25 AND APPOINTING A

TIME AND PLACE FOR HEARING PROTESTS
WHEREAS, on August 14, 1990, the City Council of the City of Banning (" City Council") adopted Resolution 1990-59, authorizing the formation of Landscape Maintenance District No. 1 LMD No. 1" or the "District"); and
WHEREAS, on May 10, 2005, the City Council adopted Resolution 2005-36, ordering the annexation of an additional five tracts and three tentative tracts to the City's LMD No. 1 Annexation No. 1 Tracts"); and
WHEREAS, on November 14, 2023, the City Council adopted Resolution 2023-177, ordering the annexation of Tract No. 32370, known as Canterbury, to the City's LMD No. 1 Annexation No. 2 Tract"); and
WHEREAS, on February 13, 2024, the City Council adopted Resolution 2024-21, initiating proceedings for the levy of an assessment for fiscal year 2024-25 in connection with LMD No. 1 pursuant to the " Landscaping and Lighting Act of 1972," Part 2 (commencing with Section 22500) of Division 15 of the California Streets and Highways Code ( the "Act"), for the operation, maintenance and servicing of landscape medians, parkways, perimeter strips and slopes adjacent to sidewalks, flood detention or retention basins, and the irrigation of the above facilities and all appurtenant facilities related thereto; and WHEREAS, by Resolution 2024-21 the City Council also ordered the City Engineer to prepare and file a written Report with the City Clerk in accordance with Article 4 (commencing with Section 22565) of Chapter 1 of Part 2 of Division 15 of the Act; and WHEREAS, the Deputy Director of Public Works/City Engineer has prepared and filed with the City Clerk, and the City Clerk has presented to the City Council, a report dated March, 2024 that is titled " Engineer's Report for FY 2024-25 City of Banning Landscape Maintenance District No. 1" (the "Report"); and
WHEREAS, it is essential that the City Council adopt this Resolution, so that the City may assess and collect assessments from the property owners located within LMD No. 1; and WHEREAS, the City Council hereby finds that funding for LMD No. 1 is available through a special assessment of property owners located within the District.

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

SECTION 1. The City Council has carefully examined and reviewed the Report, and the Report is approved as filed and considered final.

SECTION 2. The City Council hereby ( 1) finds that the public interest and convenience requires and ( 2) declares its intention to order, the levy and collection of assessments against Resolution 2024-51

Page 1 of 5 ends

956
the lots and parcels of property within LMD No. 1 pursuant to the provisions of the Act for Fiscal Year 2024- 25, commencing July 1, 2024, and ending June 30, 2025, to pay for the costs and expenses of the improvements described below in Section 3. The boundaries of the District are located in the City of Banning, County of Riverside, and are shown on Exhibit " A" to this Resolution and on the District Location Map in Section 4 of the Report.

SECTION 3. The existing improvements are briefly described as follows: landscaped street medians and parkways, landscaped perimeter strips and backup walls, landscaped side slopes adjacent to sidewalks, landscaped hillsides with high visibility, landscaped flood detention or retention basins, open spaces, and equestrian trails, drainage channel bordering Tract 23446, and the irrigation of the above facilities and all appurtenant facilities related thereto.

SECTION 4. The assessments to be levied and collected against the assessable lots and parcels of property within Tracts 21882, 22810, 22811, 22913, 23446, 23598, 29721, 30186, 30222, and 32109 within the District for fiscal year 2024- 25 are not proposed to increase from the assessments levied and collected for fiscal year 2023- 24. The assessments to be levied and collected against the assessable lots and parcels of property within the Annexation No. 1 Tracts ( Tracts 28252, 30793, 30906, 31833, 31834, and 31835) and Annexation No. 2 Tract 32370 are proposed to increase by a 2.88% Consumer Price Index (" CPI") increase from the assessments levied and collected against the assessable lots and parcels of property within the Annexation No. 1 and No. 2 Tracts for fiscal year 2023- 24, as authorized by the property owners' assessable lots and parcels of property within the Annexation No. 1 and No. 2 Tracts at the time of annexation into LMD No. 1 in 2005 and 2023, respectively.

SECTION 5. Reference is made to a map on file in the offices of the City Clerk and the City Engineer, attached as Exhibit " A," and open for public inspection for a description of the exterior boundaries of the District and the improvements described in Section 3. Reference is further made to the Report on file in the office of the City Clerk, for a full and detailed description of the improvements, the boundaries of the District and any zones therein, and the proposed assessments upon assessable lots and parcels of land within the District.

SECTION 6. NOTICE IS HEREBY GIVEN THAT THE CITY COUNCIL APPOINTS TUESDAY, THE 14TH DAY OF MAY, 2024, AT THE HOUR OF 5:00 P.M., IN THE COUNCIL CHAMBERS AT CITY HALL, CITY OF BANNING, 99 E RAMSEY STREET, BANNING, CALIFORNIA 92220,

AS THE TIME AND PLACE FOR THE HEARING OF PROTESTS OR OBJECTIONS TO THE LEVY OF THE PROPOSED ASSESSMENTS IN CONNECTION WITH THE DISTRICT. All interested persons shall be afforded the opportunity to hear and be heard. Any interested person may file a written protest with the City Clerk prior to the conclusion of the hearing. A written protest shall state all grounds of objection. A protest by a property owner shall contain a description sufficient to identify the property owned by the signer. The City Council shall consider all oral statements and all written protests made or filed by any interested person.

SECTION 7. The Administrative City Clerk shall give notice of the time and place of said public hearing by publishing this Resolution once in a local newspaper notice not less than ten ( 10) days before the date of the hearing in accordance with the provisions of Streets and Highways Code Sections 22552 and 22553 and Government Code Section 6061.

SECTION 8. The Administrative City Clerk shall certify the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions.

Resolution 2024- 51

Page 2 of 5 ends

957
PASSED, APPROVED AND ADOPTED this 26th day of March 2024 ..

ATTEST:

Caroline Patton , Adm1r< ii trative City Clerk
City of Banning
APPROVED AS TO FORM:

Serita R. Young, City Attorney
Richards , Watson & Gershon
Resolution 2024- 51

Page 3 of 5 ends

Alberto
City of
958
CERTIFICATION:

I, Caroline Patton , Administrative City Clerk of the City of Banning, California , do hereby certify that the foregoing Resolution 2024- 51 , was duly adopted by the City Council of the City of Banning , California , at a regular meeting thereof held on the 26th day of March 2024 by the following vote , to wit:

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

NOES :

ABSENT:

ABSTAIN :

Resolution 2024- 51

Page 4 of 5 ends

Caroline Patton , Admi ra tive City Clerk
City of Banning , California
959
U :::0
Q) CD
cc CJ)
CD 0
o, c -
o o·
J
OI N
0 N
I
u,
ll
Q.
s.,,.(_,f
oLEGEND
1---"·-=
City Boundary
c:::::J Tracts
4 I
I
I •
I
5 -
8 6 - 7 -
c=:] 9
10 11
I > ,~
I
I
I
I
f
LMD No. 1 Zones
2024- 2025 ~-------------.

I
I
I
TR 22811
u
c( i > ,
3598 1
WC. lm;> l'SI
V Geot II" SI ..

WNo'< llelSI
W\ 1l1tlt ,,,• St
0 0
0 0 ..,
a: -,
0 a
z C .. .. .. ..
ii
i-":io•L " IC

1.t:kfh"'° t
C.1lmoll1St::; ..,
E HolltJ SI g
E
z
E GeaoeSt
NicdclSI
W, lll~msSI
E R: imc
I
I
I
I
I
I
I
I
I
l
z
J
ti
C
N
VI Lincoln St
0 g E L, ncOln SI
IS
C)
C
Ul WWe, 1.,,, ird Ave "' l
I < II ""'
I [, Pln q Ri1 ·~
0)-.... 1r~13 1835 r { ~
i n,,, ITR 31834
r------~--··-·· , : I TR 28252 0-;,
I I ~,.,~
J ; ~
1 ; ~--------------
r
Q)
J

0..

CJ)
Q)
C
CD
s:

Q)
J -
CD
J
Q)
m
CD )(
0 : I:
oo · m --::::::!.~
n. )>
z
0 s:

Q)
C
N
0 J
CD
CJ)
960
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
FY 2023-2024
961
Landscape Maintenance Areas
LMD 1 Proposed Zone 1
Riverside Co. GIS, July 2019

WILSON ST
O
M
A
R
ST

PALM DR

WHITE OAK DR

HOFFER ST

RED BLUFF LN
M

OUNTAIN AVE
FO
O

THILL D
R

GILMAN ST
A

SPEN LN

CATCHEN RD
SUNSET
AVE

CYPRESS
ST
ELM DR
OAK LN
41S
T
S
T
H
OLLY
C
T

SUGAR PINE
C
O
IR
REG
ON T
RL
BILB
E
RRY LN

PINE CIR
WILLOW
PL

PEPPER LN

JUNIPER PL

EUCALYPTUS
D
R
ELISA
DAWN
D
R
DYSART
D
R

DAISY LN
G
CT
S
Y
CAM
O
R
E
CT

CHESTNUT LN

CEDAR LN
LEGEND
Zone 1
TR 22810
TR 22811
TR 22913
TR 30186
TR 30222
Landscaped Areas
M:\GIS-Assessment\Banning\LM
D1_Zone1.mxd; Map Date 05 Nov 2019
I
0 500 1,000 1,500
Feet

CITY OF BANNING
962
Landscape Maintenance Areas
LMD1 Proposed Zone 2
Riverside Co. GIS, July 2019

WILSON ST

HIGHLAND HO
ME R
D
KIN
G
S

WELL AVE
EVELYN
DR
D
O
R
OTHY
ANNA
DR
D
Y
S
A
R
T
D

HOFFER R
ST

AUTUMN GOLD
RAMSEY
ST

SUMMER CT

FOOTHILL
DR

AUTUMN LN
SPRING
VIEW
DR

FALLING LEAF LN

SPRING CT

CASEY CIR

CORRAL CIR
O
M
A
R
S
T
JA
N
A
N
C
T

WINTERBERRY CT

CORNUCOPIA CT
LE
SLIE C
T

WINTERGREEN CT

WESTERN SUNSET RD
M
A
RLBO
R
O
WAY
CLA
RI CT

BEVERLY
D
R
GRAND
VIEW
AVE
LORI
WAY

CO P PERLEAF LN
G

OLDEN S
KY
C
T

PROSPECTOR CIR
MEADOW
WAY
C
ST

CHAPPAREL
WAY
ALDER
C
T
LEGEND
Zone 2
TR 21882
TR 23446
Landscaped Areas
M:\GIS-Assessment\Banning\LM
D1_Zone2.mxd; Map Date 10 Oct 2019
I
0 400 800 1,200
Feet

CITY OF BANNING
963
L
andscapeMaintenanceAreas
LMD1ProposedZone3
Riverside Co. GIS, July 2019
W
I
L
S
O
N
S
T

PEPPER LN

MOUNTAIN AVE
H
O
F
F
E
R
S
T
A
UT
U
M
N
GO
LD
C
AT
C
H
E
N
R
D
B
UNK
ER
HILL
RD

DOROTHY ANNA DR

DYSART DR
G
E
O
R
G
E
S
T

WINCHESTER DR
S
P
R
I
N
G
C
T
E
L
M
D
R

FALLING LEAF LN

OMAR ST

FOOTHILL
DR
41ST ST
40TH AVE

WINTERBERRYCT

CORNUCOPIACT

SPRING DR
W
E
S
T
E
R
N
S
U
N
S
E
T
R
D
COMS
TOCK
RD

KELLOGG DR

ALDER CT
LEGENDZo
ne3
TR29721
LandscapedAreas
M:\GIS-Assessment\Banning\LMD1_Zone3.mxd; Map Date 05 Nov 2019 I
0250500750F
eet

CITYOFBANNING
964
Landscape Maintenance Areas
LMD1 Proposed Zone 4
Riverside Co. GIS, July 2019

WILSON ST
SPRING
V EI W
DR
M
A
RLBO
R
O
WAY

AUTUMN GOLD

SUMMER CT

WINCHES
TER
D
R

GEORGE ST
AUTUMN
L
H
N

IGHLAND HO
ME R
D

FALLING LEAF LN
D
O
R
O
THY
A
N
NA
DR
O
M
A
R
ST

CATCHEN RD

BUNKER HILL RD

SPRING CT

WINTERBERRY CT

CORNUCOPIA CT

JACINTO VIEW RD

WINTERGREEN CT
SPRING
D
R
D
Y
S
A
R
T
D
R
M

OUNTA NI AVE

WESTERN SUNSET RD

COPPERLEAF LN

KINGSTON RD

COMSTOCK
RD

GOLDRUSH
PL

PRAIRIE
PL

FOOTHI L L
DR
G

OLDEN S
K
Y
C
T
KELLO
G
G
D
R
41S
T
S
T
40TH AVE
ALDER
C
T
LEGEND
Zone 4
TR 32109
Landscaped Areas
M:\GIS-Assessment\Banning\LM
D1_Zone4.mxd; Map Date 05 Nov 2019
I
0 250 500 750 1,000
Feet

CITY OF BANNING
965
Landscape Maintenance Areas
LMD1 Proposed Zone 5
Riverside Co. GIS, July 2019

ECLIPSE
DR

WILSON ST

MOONBEAM DR
G
R
O
VE S
T

SUNRAY CT
S
TA
R
G
A
ZE WAY
DAWN
LN
LUNA
R LN
SIM
S
S
T
18TH S
T
19TH S
T
20TH S
T

SUNRISE AVE
HALFM
O
O
N
C
T
S
TA
RLIGHT
C
T

SILVER STAR
DR

SUNVIEW
DR
HARVE
ST M
O
ON LN
LEGEND
Zone 5
TR 23598
Landscaped Areas
M:\GIS-Assessment\Banning\LM
D1_Zone5.mxd; Map Date 05 Nov 2019
I
0 250 500 750 1,000
Feet

CITY OF BANNING
966
L
andscapeMaintenanceAreas
LMD1ProposedZone6
Riverside Co. GIS, July 2019
B
R
YA
N
S
T

DRIFTWOOD CIR

HATHAWAY ST

LISA LN
C
H
A
R
L
E
S
S
T
W
E
S
L
E
Y
S
T
A
D
A
M
S
T
LEGENDZo
ne6
TR28252
LandscapedAreas
M:\GIS-Assessment\Banning\LMD1_Zone6.mxd; Map Date 05 Nov 2019 I
02505007501,000Fe
et

CITYOFBANNING
967
Landscape Maintenance Areas
LMD1 Proposed Zone 7
Riverside Co. GIS, July 2019

WILSON ST

PALM DR

HIGHLAND HO
ME R
D

HOFFER ST

DOROTHY
ANNA
D
R

CATCHEN RD

RED BLUFF LN

GILMAN ST

ELSIE LEE CIR
M
O
U
N
TAIN
AVE

TERRY LEE CIR
O
M
A
R
ST
SPRING
D
R

FALLING LEAF LN
ELM DR

WINTERGREEN CT CORNUCOPIA CT
DYSART
DR

WESTERN SUNSET RD

PEPPER LN
41S
T
S
T
ELISA
DAWN
DR

FOOTHILL
D
R

MERIDIAN AVE

CEDAR LN
LEGEND
Zone 7
TR 30793
Landscaped Areas
M:\GIS-Assessment\Banning\LM
D1_Zone7.mxd; Map Date 05 Nov 2019
I
0 250 500 750 1,000
Feet

CITY OF BANNING
968
L
andscapeMaintenanceAreas
LMD1ProposedZone8
Riverside Co. GIS, July 2019
B
R
YA
N
S
T
C
H
A
R
L
E
S
S
T

HATHAWAY ST
V
I
C
T
O
RY
AV
E

DRIFTWOOD CIR

HARGRAVE ST

JUAREZ ST

HERMOSA AVE

LISA LN

CALDERON WAY
A
D
A
M
S
T
LEGENDZo
ne8
TR31834
TR31833
LandscapedAreas
M:\GIS-Assessment\Banning\LMD1_Zone8.mxd; Map Date 05 Nov 2019 I
02505007501,000Fe
et

CITYOFBANNING
969
L
andscapeMaintenanceAreas
LMD1ProposedZone9
Riverside Co. GIS, July 2019
C
H
A
R
L
E
S
V
I
C
T
O
RY
AV
E

HARGRAVE ST

HERMOSA AVE

CALDERON WAY
LEGENDZo
ne9
TR31835
LandscapedAreas
M:\GIS-Assessment\Banning\LMD1_Zone9.mxd; Map Date 05 Nov 2019 I
02505007501,000Fe
et

CITYOFBANNING
970
Landscape Maintenance Areas
LMD1 Proposed Zone 10
Riverside Co. GIS, July 2019

RED BLUFF LN
D
Y
S
A
R
T
D
R

CYPRESS
ST
M
OU
NTAIN
AVE

GILMAN ST
P
E
P
PER LN
FO
O
T
HILL D
R
OAK LN

EVERGREEN LN
BILBER
RY
LN

PINE CIR
WILLO
W
PL

EUCALYPTUS
D
R

DAISY LN
S
Y
C
A
M
O
RE C
T

WOOD LN
G CT

CHESTNUT LN

CEDAR LN

MERIDIA
N
AVE
LEGEND
Zone 10
TR 30906
Landscaped Areas
M:\GIS-Assessment\Banning\LM
D1_Zone10.mxd; Map Date 05 Nov 2019
I
0 400 800 1,200
Feet

CITY OF BANNING
971

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Doug Schulze, City Manager
Douglas Schulze, City Manager
MEETING DATE: May 14, 2024
SUBJECT: Consideration of Resolution 2024-60, Naming the former National Guard Armory Building the Arthur 'Art' L. Welch Community Center RECOMMENDATION:

Adopt Resolution 2024-60.

BACKGROUND:

On April 12, 1994, the City Council adopted Resolution No. 1994-46 establishing a policy for naming City park and recreation facilities. The policy reflects the following criteria:

1. In recognition of the geographic area in which the park or facility is located.

2. In recognition of historical milestones.

3. In honor of individuals who have made outstanding contributions to the community, county, state or nation.

4. In recognition of someone who has donated enough money to build the park or facility.

When the California National Guard discontinued use of the armory building, located at 2041 W. Nicolet Street, the building sat mostly unused for several years. Vandalism, homeless activity, and lack of maintenance resulted in complaints from neighbors, however, the City had leased the property for 99 years to the State of California. The term of the lease would not expire until July 27, 2052. In early 2020, the Office of the Commanding General and State of California agreed to an early termination of the lease agreement and transferred the building to the City of Banning.

After transfer back to the City, the plans for the building included remodeling and rehabilitation so it can be used as a multi-purpose community center. In addition, the building will serve as the City's Emergency Operations Center. The City has been notified that they will soon receive a grant award with funding for design and infrastructure improvements for the Armory complex.

Art Welch served on the Banning City Council from 2002 - 2006 and again from 2012 - 2020. During his tenure on the City Council, he served as Mayor from 20023 - 2004 and from 2018 - 2019. For a period of approximately 30 years, Art has served the Pass Area in numerous capacities, including the City Council, Riverside Transit Agency, Sun Lakes HOA Master Board, San Gorgonio Pass Rotary Club, Banning Chamber of Commerce, and as a representative for assemblymen, senators and Congressman Paul Cook.

JUSTIFICATION:

With over 30 years of public service to Banning and the Pass Area, Art Welch appears to have met the 972
criteria to be honored by naming a City park and recreational facility after him based on his outstanding contributions to the community. Since the former armory building has not been named, it would be a facility appropriate to be considered.

FISCAL IMPACT:

Eventual cost of signage for the building as part of the remodel and renovation project(s).

ALTERNATIVES:

1. Adopt Resolution No. 2024-60.

2. Do not adopt Resolution No. 2024-60.

ATTACHMENTS:

1. Resolution 2024-60, Art Welch Community Center.docx

2. CC Resolution No. 1994-046.pdf
973
Resolution 2024-60

Page 1 of 3 ends

RESOLUTION 2024-60

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, NAMING THE FORMER NATIONAL GUARD ARMORY BUILDING THE “ARTHUR ‘ART’ L. WELCH COMMUNITY CENTER”
WHEREAS, the State of California agreed to an early termination of a long term lease of the National Guard Armory building and it was transferred back to the City of Banning in January 2020; and
WHEREAS, the City of Banning has not formally adopted a name for the facility; and WHEREAS, the City of Banning plans to rehabilitate the building to be a fully functioning multi-purpose community center and serve as the City’s Emergency Operation Center; and WHEREAS, on April 12, 1994, the City Council of the City of Banning adopted Resolution No. 1994-46, establishing a policy for naming of a city park or facility; and WHEREAS, one of the criteria for naming a facility as established by Resolution No. 1994- 46, was “In honor of individuals who have made outstanding contributions to the community, county, state or nation”; and
WHEREAS, Arthur “Art” Welch served the residents of Banning as a member of the City Council from 2002-2006 and again from 2012-2020, serving as Mayor for multiple terms; and WHEREAS, Arthur “Art” Welch, served many years in the Pass Area on numerous community and non-profit service groups such as the Sun Lakes HOA Master Board, the San Gorgonio Pass Area Rotary Club, the Banning Chamber of Commerce, Pass Area Supporting Soldiers group and the Table of Plenty; and
WHEREAS, Arthur “Art” Welch served the county, region, state and nation as field representatives for County Supervisors, numerous State Senators and Assemblymen and a U.S.

Congressman; and
WHEREAS, the naming of a community center is an appropriate honor recognizing Mr.

Welch for his many years of service to the City of Banning and its citizens.

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

SECTION 1. In honor of his years of dedicated service to Banning and the surrounding community, the City Council hereby names the former National Guard Armory building, located at 2041 W. Nicolet Street in Banning, the “Arthur ‘Art’ L Welch Community Center.” 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. 974
Resolution 2024-60

Page 2 of 3 ends

PASSED, APPROVED AND ADOPTED this 14th day of May 2024.

Alberto Sanchez, Mayor
City of Banning
ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:

Serita R. Young, City Attorney
Richards, Watson & Gershon
975
Resolution 2024-60

Page 3 of 3 ends

CERTIFICATION:

I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-60, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 14th day of May 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
976
RESOLUTION NO. 1994-&6

A RESOLUTION OF THE CITY COUNCIL OF

THE CITY OF BANNING ESTABLISHING A
POLICY FOR THE NAMING OF CiTY PARKS

AND RECREATION FACILITIES
WHEREAS, the City has no formal policy for the naming of parks and recreation facilities; and
WHEREAS, it is necessary for the City to periodically
name such facilities:

NOW, THEREFORE, BE IT RESOLVED, by the City Council of
the City of Banning that the Policy For Naming Parks and Recreation Facilities reflects the following criteria and is hereby approved:
a. In recognition of the geographic area in which the
park or facility is located.
b. In recognition of historical milestones.

In honor of individuals who have made outstanding
contributions to the community, county, state or
nation.
d. In recognition of someone who has donated enough
money to build the park or facility.

PASSED AND ADOPTED by the City Council of the City of
Banning this 12th day of April, 1994._//
R~JMayor nolds/
CityyBanning, California

APPROVED AS TO FORM AND

LEGAL CONTENT
977
978

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Adam Rush, Community Development Director
MEETING DATE: May 14, 2024
SUBJECT: Consideration of Resolution 2024-61, Approving a Professional Services Agreement with Integrity Arborist & Ecoscape, Mariposa Landscapes, Inc., and CM Landscapes for Weed Abatement Services
RECOMMENDATION:

Adopt Resolution 2024-61.

BACKGROUND:

The properties upon which weed abatement services shall be done consist of private property and some city-owned properties, both undeveloped and developed, upon which combustive material and/or hazardous vegetation form a fire hazard and have been declared a nuisance and a fire hazard. The scope of services includes The Contractor performing hazardous vegetation abatement at numerous sites described in BMC Chapter 8.48.050 and all other relative law provisions. The City is seeking contractors with the proper equipment/personnel to handle this professional service. These properties contain all or some of the following conditions:

1. Dead annual grasses and weeds

2. Brush

3. Dead, Dying, and Diseased trees

4. Healthy trees that have not been maintained to remove ladder fuels

5. Rubbish
The work to be done shall consist of destroying weeds, wild grass, and poisonous or harmful plants and removing rubbish including but not limited to scrap metals, disassembled parts of automobiles or machinery, furniture, mattresses, tires, concrete, asphalt, bricks or other construction or demolition materials, debris, litter, cardboard, metal cans, glass, cut brush, dead trees, tree limbs and similar materials, garbage, including but not limited to animal matter including feces, fruit or vegetable matter, and trimming trees & brushes designated by the City Representative in accordance with the City of Banning Weed Abatement Standards.

The City's preference is to recycle whenever possible. If any green waste can be reused, please inform the City to see if it will meet the CA SB requirements. Selected Contractors must follow the State and AQMD 2024 rules for gas-powered vehicles and tools. Discovery of hazardous waste, hazardous materials, vehicles, or other large items shall be reported to the City Representative. When a site location is assigned, go to the site location to see if any of these items are present so The City can remove them before starting work.

JUSTIFICATION:
979
The City is obligated to preserve the public safety and welfare, which includes protection of life and property that may result from brush fires. The Banning Municipal Code (BMC) requires that all vacant lots previously declared a public nuisance and fire hazard be cleared of dangerous weeds and brush before the summer months wherein weather conditions in the City of Banning are hot and windy. These conditions create an immediate threat to public safety if not resolved by the property owner; however, in the case that the property owner is unable, unwilling, or ignores the City's code enforcement process (i.e., Notices of Violations and Administrative Citations) then the City has an obligation to front load public funds to abate the nuisance and then assess the property to ensure reimbursement through the property tax bill. If the property owner fails to pay this special assessment, then the County has the right to initiate a "tax sale" under their procedures.

FISCAL IMPACT:

The last agreement for Weed Abatement Services was authorized in 2019. The City's purchasing policy requires a new RFP each five (5) year interval. The previous weed abatement contractors lacked the resources of a larger commercial landscaper, which resulted in lower overhead costs. The recommended contractors focus on large commercial contracts and public works infrastructure, some even have provided services in the City of Banning. The combination of these facts have resulted in higher costs and therefore, a increased budget amount from the last contract award.

The budget impact will be a maximum of $120,000, allocated equally across each firm (e.g., $40,000 for each vendor), detailed as follows:

Integrity Arborist & Ecoscape ($40,000)
Mariposa Landscapes, Inc. ($40,000)
CM Landscapes ($40,000)
Contractors will be paid from expense account: 001-2740-442.23-39 Contract services will only be utilized on an "as-needed" basis and there is no guarantee of work. The City will seek reimbursement by placing the fully burdened costs of weed abatement as a property tax assessment, which is a superior assessment to the actual property tax bill. Even if the property owner pays the County Tax Bill, but not not pay the City's assessment, a tax sale could occur. This assessment is possible with the Council's adoption of Ordinance 1598 which replaces the traditional property lien. An assessment allows the City reimbursement on a 6-month schedule, concurrent with the property tax payments rather than waiting years, or sometimes a decade to obtain reimbursement when a property is sold, transferred or refinanced.

ALTERNATIVES:

The Council may take the following actions as an alternative to staff's recommendation:
1) Continue the Agenda Item, along with requesting clarification or providing alternative direction to staff concerning the City's Weed Abatement obligations.
2) Consider Rejecting all Bids and provide alternative direction to staff concerning the City's Weed Abatement obligations.
3) Approve the Agreements, but in a reduced contractual amount.

ATTACHMENTS:

1. Resolution 2024-61, Weed Abatement Services.docx

2. C01016 PSA CM Landscape Weed Abatement Services.docx

3. C01017 - PSA Integrity Weed Abatement.docx

4. C01018 - PSA Mariposa Weed Abatement (AutoRecovered).docx

5. Evaluation Tabulation (6).docx

6. CM Landscape Proposal.pdf
980

7. Integrity Proposal For SR.pdf

8. Mariposa Proposal.pdf
981
Resolution 2024-61

Page 1 of 6 ends

RESOLUTION 2024-61

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

APPROVING A PROFESSIONAL SERVICE AGREEMENT CONTRACT WITH INTEGRITY ARBORIST & ECOSCAPE, MARIPOSA LANDSCAPES, INC. AND CM LANDSCAPE., IN AN AMOUNT NOT TO EXCEED $120,000 ($40,000 EACH VENDOR) FOR WEED ABATEMENT SERVICES IN THE CITY OF BANNING FOR FISCAL YEARS 2023/2024 & 2024/2025 WHEREAS, on February 1, 2024 staff solicited proposals from qualified companies to provide weed abatement services for private, and public properties throughout the City; and WHEREAS, staff advertised the RFP on the OpenGov. Procurement website, which sent notifications to twenty (20) weed abatement service contractors and received seven (7) proposals; and
WHEREAS, the scope of work for these services includes the removal of vegetation and debris from properties not in compliance with City of Banning Municipal Codes; and WHEREAS, staff recommends the shared award of a Weed Abatement Services Agreement to Integrity Arborist & Ecoscape, Mariposa Landscapes, Inc., and CM Landscape, in an amount not-to-exceed $120,000 ($40,000 for each vendor) for Fiscal Year 2023/2024 and 2024/2025 with the option to renew for four (4) additional single years upon a satisfactory annual review of provided services; and
WHEREAS, funding will be available in the City's Code Enforcement accounts in the Biennial Budget for Fiscal year 2023/2024 and 2024/2025 in the amount of not-to-exceed $120,000; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:

SECTION 1. The Banning City Council approves the Agreement, attached as Exhibit “A,” in an amount not-to-exceed $120,000 ($40,000 for each vendor) for Fiscal Year 2023/2024 and 2024/2025 with the option to renew for four (4) additional single years upon a satisfactory annual review of provided services; and,
SECTION 2. The City Manager or his designee is authorized to make necessary budget adjustments, appropriations and transfers related to this services agreement.

SECTION 3. The City Council authorizes the City Manager to make necessary non-substantive changes and to execute the agreement with Weed Abatement Services Agreement to Integrity Arborist & Ecoscape, Mariposa Landscapes, Inc., and CM Landscape.

SECTION 4. The City Manager or his designee is authorized to execute the Agreement with on behalf of the City Council.

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. 982
Resolution 2024-61

Page 2 of 6 ends

PASSED, APPROVED AND ADOPTED this 14th day of Month 2024.

Alberto Sanchez, Mayor
City of Banning
ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:

Serita R. Young, City Attorney
Richards, Watson & Gershon
983
Resolution 2024-61

Page 3 of 6 ends

CERTIFICATION:

I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-61, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 14th day of May 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
984
Resolution 2024-61

Page 4 of 6 ends

EXHIBIT A
Professional Services Agreement C01016 with CM Landscapes 985
Resolution 2024-61

Page 5 of 6 ends

EXHIBIT B
Professional Services Agreement C01017 with Integrity Arborist & Ecoscape 986
Resolution 2024-61

Page 6 of 6 ends

EXHIBIT C
Professional Services Agreement C01018 with Mariposa Landscapes, Inc. 987
-1-
AGREEMENT FOR PROFESSIONAL SERVICES (C01016) FOR WEED

ABATEMENT SERVICES BY AND BETWEEN CITY OF BANNING AND

CHARMAINE MARTINEZ DBA CM LANDSCAPE MANAGEMENT
THIS AGREEMENT FOR PROFESSIONAL SERVICES (herein “Agreement”) is made and entered into this day: ___________________, (“Effective Date”) by and between the CITY OF BANNING, a California municipal corporation (“City”) and Charmaine Martinez DBA CN Landscape Management, a Sole Proprietorship, (“Consultant”). City and Consultant are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”

RECITALS
A. City has sought by a proposal (RFP 23-047) for the performance of the services for Weed Abatement and as further defined and described particularly in Article 1 of this Agreement.

D. Pursuant to the City of Banning’s Municipal Code, City has authority to enter into this Agreement.

ARTICLE 1. SERVICES OF CONSULTANT

1.1 Scope of Services.

In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the “Scope of Services” attached hereto as Exhibit A and incorporated herein by this reference, which services may be referred to herein as the “Services” hereunder. As a material inducement to City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the Services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services described herein. Consultant covenants that it shall follow the highest professional standards in performing the Services required hereunder and that all materials will be of good quality, and fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional 988
-2-
11303-0008\2344655v8.doc
standards” shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances.

1.2 Contract Documents and Exhibits.

1.3 Compliance with Law.

1.4 Licenses, Permits, Fees and Assessments.

1.5 Familiarity with Services.

1.6 Prevention of Loss and Damages.

Consultant shall adopt reasonable methods during the Term (defined in Section 3.4) to furnish continuous protection to the work product, and the equipment, materials, papers, 989
-3-
11303-0008\2344655v8.doc
documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Services by City, except such losses or damages as may be caused by City’s own negligence.

1.7 Further Responsibilities of Parties.

1.8 Additional Services.

1.9 Facilities and Equipment.

1.10 Special Requirements.

1.11 Corrections.

In addition to the indemnification obligations set forth in Article 4, and Sections 1.4, 1.13,

1.12 Party Representatives.

Name Title
Charmaine Martinez Owner
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Consultant Representative were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing Consultant Representative shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the Services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the Consultant Representative. For purposes of this Agreement, the foregoing Consultant Representative may not be replaced nor may their responsibilities be substantially reduced or reassigned by Consultant without the express written approval of City. It shall be Consultant’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the Services, and Consultant shall refer any decisions which must be made by City to the Contract Officer. 2) Consultant’s Personnel: Consultant has, or will secure at its own expense, all personnel required to perform the Services required under this Agreement. All of the Services required under this Agreement shall be performed by Consultant or under its supervision, and all personnel engaged in the Services shall be qualified to perform such Services. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and sub-contractors, if any, assigned to perform the Services required under this Agreement. 991
-5-
11303-0008\2344655v8.doc
Consultant shall notify City of all changes in Consultant’s staff and sub-contractors, if any, assigned to perform the Services required under this Agreement, prior to and during any such performance. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires to reassign any staff or sub-contractor of Consultant, City shall give notice as set forth in Section 8.1. Consultant shall, immediately upon the receipt of the notice to re-assign staff from City, reassign such person or persons.

1.13 Independent Contractor.

A. Consultant is an independent contractor and not an employee of City.

1.14 Prohibition Against Subcontracting or Assignment.

The experience, knowledge, capability and reputation of Consultant, the Consultant Representative and employees were a substantial inducement for City to enter into this Agreement.

Therefore, Consultant shall not contract with any other entity to perform in whole or in part the Services required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty-five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this 992
-6-
11303-0008\2344655v8.doc
Agreement shall be void. No approved transfer shall release Consultant or any surety of Consultant of any liability hereunder without the express consent of City.

ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.

2.1 Contract Sum.

Subject to any limitations set forth in this Agreement, as full compensation for Services satisfactorily rendered, City shall pay Consultant at the hourly rates set forth in the “Schedule of Compensation” attached hereto as Exhibit C and incorporated herein by this reference. In no event shall Consultant be paid more than Forty Thousand Dollars ($40,000.00) (the “Contract Sum”). The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by City. Coordination of the performance of the Services with City is a critical component of the Services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending those meetings.

2.2 Method of Compensation.

2.3 Reimbursable Expenses.

2.4 Unauthorized Services and Expenses.

2.5 Invoices.

Each month Consultant shall furnish to City an original invoice for all Services performed and expenses incurred during the preceding month. Each such invoice shall contain all of the information set forth in Section III of Exhibit C to this Agreement. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the 993
-7-
11303-0008\2344655v8.doc
Agreement. Consultant shall not invoice City for any duplicate Services performed by more than one person.

2.6 Waiver.

Payment to Consultant for Services performed pursuant to this Agreement shall not be deemed to waive any defects in Services performed by Consultant.

ARTICLE 3. PERFORMANCE SCHEDULE

3.1 Time of Essence.

3.2 Schedule of Performance.

3.3 Force Majeure.

1.8) shall be final and conclusive upon the Parties to this Agreement. In no event shall Consultant 994
-8-
11303-0008\2344655v8.doc
be entitled to recover damages against City for any delay in the performance of this Agreement, however caused; Consultant’s sole remedy shall be the extension of the Agreement pursuant to this Section.

3.4 Term.

The Term of this Agreement shall be from the Effective Date through June 30, 2025, unless sooner terminated as provided in Article 6 of this Agreement or extended as provided in Sections

1.8 and 3.3 of this Agreement. This Agreement shall include the option to extend for four (4) additional one-year terms if agreed to in writing in advance by both Parties. Maximum term and any subsequent amendment or modification shall not exceed five (5) years.

ARTICLE 4. INSURANCE AND INDEMNIFICATION

4.1 Minimum Scope and Limits of Insurance.

Consultant shall procure and at all times during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows:

D. Professional Liability/Errors and Omissions Insurance with minimum limits of $1,000,000.00 per claim and in the aggregate.

4.2 Acceptability of Insurers.

The insurance policies required under this Article shall be issued by an insurer admitted to write insurance in the State of California with a rating of A:VII or better in the latest 995
-9-
11303-0008\2344655v8.doc
edition of the A.M. Best Insurance Rating Guide. Self-insurance shall not be considered to comply with the insurance requirements under this Article.

4.3 Additional Insured.

The commercial general and automobile liability policies shall contain an endorsement naming City, its officers, employees, agents and volunteers as additional insureds.

4.4 Primary and Non-Contributing.

4.5 Consultant’s Waiver of Subrogation.

4.6 Deductibles and Self-Insured Retentions.

4.7 Cancellations or Modifications to Coverage.

4.8 City Remedy for Noncompliance.

Consultant shall promptly reimburse City for any premium paid by City, or City may withhold amounts sufficient to pay the premiums from payments due to Consultant. 996
-10-
11303-0008\2344655v8.doc

4.9 Evidence of Insurance.

4.10 Indemnity Requirements not Limiting.

Procurement of insurance by Consultant shall not be construed as a limitation of Consultant’s liability or as full performance of Consultant’s duty to indemnify City under this Agreement.

4.11 Sub-contractor Insurance Requirements.

Consultant shall require each of its sub-contractors that perform Services under this Agreement to maintain insurance coverage that meets all of the requirements of this Article.

4.12 Indemnification, Hold Harmless, and Duty to Defend.

A. Indemnification of City.
1) To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively “Indemnitees”), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively “Liabilities”), at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant, its officers, agents, servants, employees, sub-contractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties. Consultant shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of the Indemnitees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith.
997
-11-
11303-0008\2344655v8.doc
2) Consultant shall pay all required taxes on amounts paid to Consultant under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant shall fully comply with the workers’ compensation law regarding Consultant and Consultant’s employees. Consultant shall indemnify and hold City harmless from any failure of Consultant to comply with applicable workers’ compensation laws. City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this subparagraph A.2. 3) Consultant shall obtain executed indemnity agreements with provisions identical to those in this Article from each and every sub-contractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement.

D. Survival of Terms. Consultant’s indemnifications and obligations under this Article shall survive the expiration or termination of this Agreement.

ARTICLE 5. RECORDS, REPORTS, AND RELEASE OF INFORMATION

5.1 Service Records.

Consultant shall keep, and require sub-contractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and Services performed hereunder (the “Service Records”), as shall be necessary to perform the Services required by this Agreement and enable the Contract Officer 998
-12-
11303-0008\2344655v8.doc
to evaluate the performance of such Services. Any and all such Service Records shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such Service Records at all times during normal business hours of City, including the right to inspect, copy, audit and make copies and transcripts from such Service Records. Such Service Records shall be maintained for a period of three (3) years following completion of the Services hereunder, and City shall have access to such Service Records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the Service Records may be given to City, and access shall be provided by Consultant’s successor in interest (“Consultant’s Successor”). If custody of the Service Records is given to Consultant’s Successor, Consultant shall give written notice to City of the transfer of the Service Records to Consultant’s Successor. The notice shall include contact information (address and telephone number) for Consultant’s Successor, and access shall be provided to City by Consultant’s Successor.

5.2 Reports.

5.3 Ownership of Documents.

5.4 Confidentiality and Release of Information.

A. All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the 999
-13-
11303-0008\2344655v8.doc
public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer.

ARTICLE 6. ENFORCEMENT OF AGREEMENT AND TERMINATION

6.1 California Law.

6.2 Disputes; Default.

A. In the event that City determines Consultant is in default under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any Services performed after the date of default. In addition to the provisions of Section 4.8, and the right to terminate pursuant to Section 6.7, if the City Manager determines that Consultant is in default in the performance of any of the terms or conditions of this Agreement, City may serve Consultant with written notice of the default. Consultant shall have ten (10) calendar days after service upon it of the notice in which to cure the default by rendering a satisfactory performance. 1000
-14-
11303-0008\2344655v8.doc
In the event that Consultant fails to cure its default within such period of time, City may, notwithstanding any other provision of this Agreement, terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.

6.3 Retention of Funds.

6.4 Waiver.

Any waiver by either Party of any default must be in writing, and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.

6.5 Rights and Remedies are Cumulative.

Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party 1001
-15-
11303-0008\2344655v8.doc
of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.

6.6 Legal Action.

6.7 Termination Prior to Expiration of Term.

6.8 Attorneys’ Fees.

In any litigation or other proceeding by which a Party seeks to enforce its rights under this Agreement (whether in contract, tort or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing Party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees. Attorneys’ fees shall include attorney’s fees on any appeal, and in addition the Party entitled to attorneys’ fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 1002
-16-
11303-0008\2344655v8.doc
ARTICLE 7. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION

7.1 Non-liability of City Officers and Employees.

7.2 Conflict of Interest.

7.3 Covenant Against Discrimination.

Consultant shall take affirmative action to insure that applicants are employed, and that employees 1003
-17-
11303-0008\2344655v8.doc
are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry, or other protected class.

7.4 Unauthorized Aliens.

ARTICLE 8. MISCELLANEOUS PROVISIONS

8.1 Notices.

If to City Attn: Adam Rush
Director of Community Development
City of Banning
99 East Ramsey Street
Banning, California 92220
Email: [email protected]
With a courtesy copy to: Serita R. Young, City Attorney Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, California 90071
Email: [email protected]
If to Consultant: Attn: Charmaine Martinez
Owner
Charmaine Martinez DBA CM Landscape Management
32398 Dunlap Blvd
Yucaipa, CA 92399
Email: [email protected]
1004
-18-
11303-0008\2344655v8.doc

8.2 Interpretation.

8.3 Counterparts.

This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.

8.4 Integration; Amendment.

8.5 Severability.

8.6 Mutual Cooperation.

8.7 No Third Party Beneficiaries Intended.

8.8 Final Payment Acceptance Constitutes Release.

8.9 Non-Appropriation of Funds.

8.10 Headings.

8.11 Word Usage.

8.12 Business Days.
“Business Days” refers to days that the Banning City Hall is open for business.

8.13 Corporate Authority.

The persons executing this Agreement on behalf of the Parties hereto warrant that (i): such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver 1006
-20-
11303-0008\2344655v8.doc
this Agreement on behalf of that Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which that Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.

8.14 Electronic Signatures.

Each Party may adopt as its signature an electronic identification consisting of a symbol or code that is affixed to or contained in each document transmitted by such Party (“electronic signature”). The Parties hereto herby agree that electronic signatures are acceptable, shall have the same force and effect under the law as original wet signatures, and shall be sufficient to verify that the Parties have executed this Agreement and such other documents transmitted by the Parties.
[SIGNATURES ON FOLLOWING PAGE]
1007
-21-
11303-0008\2344655v8.doc
IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first hereinabove written.

CITY OF BANNING CONSULTANT
Douglas Schulze, Date
City Manager
NAME: Date
TITLE:

NAME: Date
TITLE:

ATTEST:

Tax ID No.

Caroline Patton Date
Administrative City Clerk
Address:

APPROVED AS TO FORM:

Richards, Watson & Gershon
City Council Approval: _____________
Serita R. Young Date
City Attorney
NOTE: PROOF OF AUTHORITY TO BIND CONTRACTING PARTY REQUIRED. APPROPRIATE

ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY.
1008
Exhibit “A”-1
EXHIBIT “A”

SCOPE OF SERVICES
I. Consultant will perform the following Services in connection with providing Weed Abatement Services prepared in connection therewith:

II. As part of the Services, Consultant will prepare and deliver the following tangible work products and services to City:

SCOPE OF WORK

OVERVIEW SCOPE OF WORK
The work to be done shall consist of destroying weeds, wild grass, and poisonous or harmful plants and removing rubbish including but not limited to scrap metals, disassembled parts of automobiles or machinery, furniture, mattresses, tires, concrete, asphalt, bricks or other construction or demolition materials, debris, litter, cardboard, metal cans, glass, cut brush, dead trees, tree limbs and similar materials, garbage, including but not limited to animal matter including feces, fruit or vegetable matter, and trimming trees & brushes designated by the City Representative in accordance with the City of Banning Weed Abatement Standards.

The City's preference is to recycle whenever possible. If any green waste can be reused, please inform the City to see if it will meet the CA SB requirements. NOTE: all selected contractors must follow the State and AQMD 2024 rules for gas-powered vehicles and tools.

Discovery of hazardous waste, hazardous materials, vehicles, or other large items shall be reported to the City Representative. When a site location is assigned, go to the site location to see if any of these items are present so The City can remove them before starting work.

PROPERTIES UNDER 1 ACRE IN SIZE:
 Grass and weeds shall be removed or cut to a maximum height of three (3) inches.  Tree limbs within six (6) feet of the ground that permit fire to spread into the tree canopy and promote amber distribution shall be removed.
 All downed trees, branches, or woody debris shall be removed.  Debris piles that contain combustible material that can easily support fire ignition and spread shall be removed.
 All brush or woody vegetation debris shall be chipped, broadcast, or removed from the property.
 Non-vegetative combustive debris (i.e., trash, tires, construction debris) shall be removed from the property unless it is too large for removal. Contact The City for the removal of vehicles and other oversized items.

PROPERTIES OVER 1 ACRE IN SIZE:
1009
Exhibit “A”-2
 Includes all requirement above for Properties under 1 acre in size.  Provide fuel breaks along the property line—fuel breaks maybe 30 to 100 feet, depending on the property size.
 Tree limbs within six (6) feet of the ground that permit fire to spread into the tree canopy and promote amber distribution shall be removed within the perimeter fuel break.  Eliminate all ladder fuels that can easily transmit fire into the tree canopy within the fuel break.
 Remove all hazardous vegetation and combustible material.  Mastication may be required on large parcels.

ADDITIONAL REQUIREMENTS FOR LARGER PROPERTIES
 Requires (if permitted) a fifty (50) feet cross-hatch dividing each acre.

ADDITIONAL REQUIREMENTS IF APPLICABLE
 Weeds shall be abated to the back of the curb, sidewalk, street paving edge of the road, and around and up to fencing and poles.
 The weed abatement procedure shall not disrupt, alter, or block any natural or manmade waterway, stream, or drainage ditch. All of said waterways must be kept clean and free of all debris.
 Handwork will be required where tractors or similar equipment cannot meet the two requirements above.
 Discing or other similar methods for work where handwork is not required.  Dust Control – The Contractor shall be responsible for complying with Federal, State, and Local laws, Regulations, and Ordinances, including but not limited to South Coast Air Quality Management Division RULE 403. FUGITIVE DUST.  The Contractor shall furnish all hand tools, power, and safety equipment necessary to accomplish the specified work.
 The Contractor will always have portable water readily available and in sufficient quantity for each hand crew member.
 Gas/electric weed eaters with adequate supplies, repair parts, and enough fuel/electrical power for an entire day must be supplied for hand crews.  A sufficient reserve of equipment and enough power tools for all crew members shall be available to eliminate downtime.
 Suitable flatbed hydraulic pump trucks or trailers with high sides for hauling will be provided throughout the handwork operation. They are to be operated and maintained at the expense of the Contractor.
1010
Exhibit “A”-3
 All trimmings and debris shall be disposed of at a properly licensed and regulated landfill or recycling facility at the Contractor's expense.
 The loading of materials removed from the site will be accomplished on the same day as cleaning is completed. No materials will be left on the lot for later pickup unless the City approves.
 The Contractor shall always have (1) person responsible for the conduct and supervision of hand crews.
 The Contractor shall always furnish the equipment and personnel needed to complete the work most efficiently.
 The Contractor shall obey all State and Federal laws and codes, all local ordinances and regulations, and any other laws, codes, ordinances, and regulations which may apply. It is the responsibility of the Contractor to keep informed of these laws, codes, ordinances, and regulations and to keep informed of any changes to them.  All pictures must be time-stamped and dated and display the APN. No handwritten dates on photos. All photos will be emailed to The City along with any notes regarding the site.

Before pictures must show the height of the weeds with a City approved weed measuring stick. The measuring stick must be at least 4 feet tall with a red line at the 2-foot mark.

The red line must be put on by a weed abatement officer.  Dump Fees will be covered by The Contractor.

ADDITIONAL SERVICES
 Unforeseen work will be requested to address safety or environmental concerns from the selected contractors based on the hourly rate schedule provided. The City will reach out for price quotes during these times. If it is time-sensitive, The City may seek quotes from those contractors who can meet that timeline.

SCHEDULE
All work shall be as needed as specified during the contract term. All contractors should be able to complete assigned jobs within fourteen (14) calendar days of assignment. All work shall be started on site within 72 hours after service request and continued until finished. Failure to complete the work as specified for each site within fourteen (14) calendar days may result in termination of the contract unless the Contractor can show cause for an extension. A workday is 7:00 AM to 4:00 PM.

LOCATIONS
Locations change every year due to weather conditions and other factors. The City will generate a list of locations every few months and assign each location to the awarded contractors.

It is the contractor's responsibility to know and to be able to access the site(s) they are given. If you have concerns about accessing remote sites, please indicate that in the RFP since The City will assume you will have the ability to access any locations within the City. The City will provide a list of some previous sites as examples.
1011
Exhibit “A”-4
III. In addition to the requirements of Parts I and II of this Scope of Services, during the performance of the Services, Consultant will keep City appraised through periodic status reports regarding the performance of the Services under this Agreement as set forth below and in Section 5.2, by the following means:
a. In-person meetings and/or teleconferences.
b. Email updates/questions to applicant team and City while reviews are underway.
c. Conference calls.

SPECIAL REQUIREMENTS

TERMS FOR COMPLIANCE WITH CALIFORNIA LABOR LAW REQUIREMENTS

1. This Agreement calls for services that, in whole or in part, constitute “public works” as defined in Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code (“Chapter 1”). Further, Consultant acknowledges that this Agreement is subject to (a) Chapter 1 and (b) the rules and regulations established by the Department of Industrial Relations (“DIR”) implementing such statutes. Therefore, as to those Services that are “public works,” Consultant shall comply with and be bound by all the terms, rules and regulations described in 1(a) and 1(b) as though set forth in full herein.

2. California law requires the inclusion of specific Labor Code provisions in certain contracts. The inclusion of such specific provisions below, whether or not required by California law, does not alter the meaning or scope of Section 1 above.

3. Consultant shall be registered with the Department of Industrial Relations in accordance with California Labor Code Section 1725.5, and has provided proof of registration to City prior to the Effective Date of this Agreement. Consultant shall not perform work with any subcontractor that is not registered with DIR pursuant to Section 1725.5. Consultant and subcontractors shall maintain their registration with the DIR in effect throughout the duration of this Agreement. If the Consultant or any subcontractor ceases to be registered with DIR at any time during the duration of the project, Consultant shall immediately notify City.

4. Pursuant to Labor Code Section 1771.4, Consultant’s Services are subject to compliance monitoring and enforcement by DIR. Consultant shall post job site notices, as prescribed by DIR regulations.

5. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages for each craft, classification, or type of worker needed to perform the Agreement are on file at City Hall and will be made available to any interested party on request. Consultant acknowledges receipt of a copy of the DIR determination of such prevailing rate of per diem wages, and Consultant shall post such rates at each job site covered by this Agreement.

6. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The Consultant shall, as a penalty to City, forfeit $200.00 for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Consultant or by any subcontractor.

7. Consultant shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Consultant and each subcontractor to: keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776; certify and make such payroll records available for inspection as provided by Section 1776; and inform City of the location of the records.
1013
Exhibit “B”-2

Prior to commencing work under this Agreement, Consultant shall provide City with a copy of the information submitted to any applicable apprenticeship program. Within 60 days after concluding work pursuant to this Agreement, Consultant and each of its subcontractors shall submit to City a verified statement of the journeyman and apprentice hours performed under this Agreement.

9. The Consultant shall not perform Work with any Subcontractor that has been debarred or suspended pursuant to California Labor Code Section 1777.1 or any other federal or state law providing for the debarment of contractors from public works. The Consultant and Subcontractors shall not be debarred or suspended throughout the duration of this Agreement pursuant to Labor Code Section 1777.1 or any other federal or state law providing for the debarment of contractors from public works. If the Consultant or any subcontractor becomes debarred or suspended during the duration of the project, the Consultant shall immediately notify City.

10. Consultant acknowledges that eight hours labor constitutes a legal day’s work.

Consultant shall comply with and be bound by Labor Code Section 1810. Consultant shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The Consultant shall, as a penalty to City, forfeit $25.00 for each worker employed in the performance of this Agreement by the Consultant or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code section 1815, work performed by employees of Consultant in excess of eight hours per day, and 40 hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of eight hours per day at not less than one and one-half times the basic rate of pay.

11. California Labor Code Sections 1860 and 3700 provide that every employer will be required to secure the payment of compensation to its employees. In accordance with the provisions of California Labor Code Section 1861, Consultant hereby certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”
Date______________ Signature___________________________ 1014
Exhibit “B”-3

12. For every subcontractor who will perform work on the project, Consultant shall be responsible for such subcontractor’s compliance with Chapter 1 and Labor Code Sections 1860 and 3700, and Consultant shall include in the written contract between it and each subcontractor a copy of those statutory provisions and a requirement that each subcontractor shall comply with those statutory provisions. Consultant shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor’s compliance, including, without limitation, conducting a periodic review of the certified payroll records of the subcontractor and upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages. Consultant shall diligently take corrective action to halt or rectify any failure.
1015
Exhibit “C”-1
EXHIBIT “C”

SCHEDULE OF COMPENSATION
I. Consultant shall perform the following tasks (“Tasks”) at the following rates as attached as Exhibit C-1:

III. City will compensate Consultant for the Services performed upon submission of a valid invoice. Each invoice is to include:

A. Line items for all personnel describing the Services performed, the number of hours worked, and the hourly rate.

B. Line items for all materials and equipment properly charged to the Services.

C. Line items for all other approved reimbursable expenses claimed, with supporting documentation.

D. Line items for all approved sub-contractor labor, supplies, equipment, materials, and travel properly charged to the Services. 1016
Exhibit “C-1”-1
EXHIBIT “C-1”
CONSULTANT’S BILLING RATE AND TASK SCHEDULE
1017
Exhibit “D”- 1
EXHIBIT “D”

SCHEDULE OF PERFORMANCE
I. Consultant shall perform all Services timely, and deliver the specified tangible work products to City in accordance with Exhibit “A”.

II. The Contract Officer may approve extensions for performance of the Services in accordance with Sections 1.8 and 3.
1018
1019
-1-
AGREEMENT FOR PROFESSIONAL SERVICES (C01017) FOR WEED

ABATEMENT SERVICES BY AND BETWEEN CITY OF BANNING AND

INTEGRITY ARBORIST AND ECOSCAPE INC
THIS AGREEMENT FOR PROFESSIONAL SERVICES (herein “Agreement”) is made and entered into this day: ___________________, (“Effective Date”) by and between the CITY OF BANNING, a California municipal corporation (“City”) and Integrity Arborist and Ecoscape Inc, a California Corporation, (“Consultant”). City and Consultant are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”

RECITALS
A. City has sought by a proposal (RFP 23-047) for the performance of the services for Weed Abatement and as further defined and described particularly in Article 1 of this Agreement.

D. Pursuant to the City of Banning’s Municipal Code, City has authority to enter into this Agreement.

ARTICLE 1. SERVICES OF CONSULTANT

1.1 Scope of Services.

In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the “Scope of Services” attached hereto as Exhibit A and incorporated herein by this reference, which services may be referred to herein as the “Services” hereunder. As a material inducement to City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the Services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services described herein. Consultant covenants that it shall follow the highest professional standards in performing the Services required hereunder and that all materials will be of good quality, and fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances.
1020
-2-

1.2 Contract Documents and Exhibits.

1.3 Compliance with Law.

1.4 Licenses, Permits, Fees and Assessments.

1.5 Familiarity with Services.

1.6 Prevention of Loss and Damages.

Consultant shall adopt reasonable methods during the Term (defined in Section 3.4) to furnish continuous protection to the work product, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Services by City, except such losses or damages as may be caused by City’s own negligence. 1021
-3-

1.7 Further Responsibilities of Parties.

1.8 Additional Services.

1.9 Facilities and Equipment.

1.10 Special Requirements.

1.11 Corrections.
1022
-4-
In addition to the indemnification obligations set forth in Article 4, and Sections 1.4, 1.13,

1.12 Party Representatives.

Name Title
Andre Prado President
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Consultant Representative were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing Consultant Representative shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the Services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the Consultant Representative. For purposes of this Agreement, the foregoing Consultant Representative may not be replaced nor may their responsibilities be substantially reduced or reassigned by Consultant without the express written approval of City. It shall be Consultant’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the Services, and Consultant shall refer any decisions which must be made by City to the Contract Officer. 2) Consultant’s Personnel: Consultant has, or will secure at its own expense, all personnel required to perform the Services required under this Agreement. All of the Services required under this Agreement shall be performed by Consultant or under its supervision, and all personnel engaged in the Services shall be qualified to perform such Services. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and sub-contractors, if any, assigned to perform the Services required under this Agreement.

Consultant shall notify City of all changes in Consultant’s staff and sub-contractors, if any, assigned to perform the Services required under this Agreement, prior to and during any such 1023
-5-
performance. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires to reassign any staff or sub-contractor of Consultant, City shall give notice as set forth in Section 8.1. Consultant shall, immediately upon the receipt of the notice to re-assign staff from City, reassign such person or persons.

1.13 Independent Contractor.

A. Consultant is an independent contractor and not an employee of City.

1.14 Prohibition Against Subcontracting or Assignment.

The experience, knowledge, capability and reputation of Consultant, the Consultant Representative and employees were a substantial inducement for City to enter into this Agreement.

Therefore, Consultant shall not contract with any other entity to perform in whole or in part the Services required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty-five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release Consultant or any surety of Consultant of any liability hereunder without the express consent of City.

ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.

2.1 Contract Sum.

Subject to any limitations set forth in this Agreement, as full compensation for Services satisfactorily rendered, City shall pay Consultant at the hourly rates set forth in the “Schedule of 1024
-6-
Compensation” attached hereto as Exhibit C and incorporated herein by this reference. In no event shall Consultant be paid more than Forty Thousand Dollars ($40,000.00) (the “Contract Sum”). The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by City. Coordination of the performance of the Services with City is a critical component of the Services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending those meetings.

2.2 Method of Compensation.

2.3 Reimbursable Expenses.

2.4 Unauthorized Services and Expenses.

2.5 Invoices.

Each month Consultant shall furnish to City an original invoice for all Services performed and expenses incurred during the preceding month. Each such invoice shall contain all of the information set forth in Section III of Exhibit C to this Agreement. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement. Consultant shall not invoice City for any duplicate Services performed by more than one person.

City shall independently review each invoice submitted by Consultant to determine whether the Services performed and expenses incurred are in compliance with the provisions of this Agreement. City will use its best efforts to cause Consultant to be paid within thirty (30) days of receipt of Consultant’s correct and undisputed invoice, except as to any charges for Services performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 6.3. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City 1025
-7-
of any invoice provided by Consultant shall not constitute waiver of any rights or remedies provided herein or any applicable law.

2.6 Waiver.

Payment to Consultant for Services performed pursuant to this Agreement shall not be deemed to waive any defects in Services performed by Consultant.

ARTICLE 3. PERFORMANCE SCHEDULE

3.1 Time of Essence.

3.2 Schedule of Performance.

3.3 Force Majeure.

3.4 Term.

The Term of this Agreement shall be from the Effective Date through June 30, 2025, unless sooner terminated as provided in Article 6 of this Agreement or extended as provided in Sections

1.8 and 3.3 of this Agreement. This Agreement shall include the option to extend for four (4) 1026
-8-
additional one-year terms if agreed to in writing in advance by both Parties. Maximum term and any subsequent amendment or modification shall not exceed five (5) years.

ARTICLE 4. INSURANCE AND INDEMNIFICATION

4.1 Minimum Scope and Limits of Insurance.

Consultant shall procure and at all times during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows:

D. Professional Liability/Errors and Omissions Insurance with minimum limits of $1,000,000.00 per claim and in the aggregate.

4.2 Acceptability of Insurers.

The insurance policies required under this Article shall be issued by an insurer admitted to write insurance in the State of California with a rating of A:VII or better in the latest edition of the A.M. Best Insurance Rating Guide. Self-insurance shall not be considered to comply with the insurance requirements under this Article.

4.3 Additional Insured.

The commercial general and automobile liability policies shall contain an endorsement naming City, its officers, employees, agents and volunteers as additional insureds.

4.4 Primary and Non-Contributing.
1027
-9-
The insurance policies required under this Article shall apply on a primary noncontributing basis in relation to any other insurance or self-insurance available to City. Any insurance or self-insurance maintained by City, its officers, employees, agents or volunteers, shall be in excess of Consultant’s insurance and shall not contribute with it.

4.5 Consultant’s Waiver of Subrogation.

4.6 Deductibles and Self-Insured Retentions.

4.7 Cancellations or Modifications to Coverage.

4.8 City Remedy for Noncompliance.

Consultant shall promptly reimburse City for any premium paid by City, or City may withhold amounts sufficient to pay the premiums from payments due to Consultant.

4.9 Evidence of Insurance.

Consultant shall provide proof to the City Clerk that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same 1028
-10-
coverage. Consultant shall furnish such proof at least two (2) weeks prior to the expiration of the coverages.

4.10 Indemnity Requirements not Limiting.

Procurement of insurance by Consultant shall not be construed as a limitation of Consultant’s liability or as full performance of Consultant’s duty to indemnify City under this Agreement.

4.11 Sub-contractor Insurance Requirements.

Consultant shall require each of its sub-contractors that perform Services under this Agreement to maintain insurance coverage that meets all of the requirements of this Article.

4.12 Indemnification, Hold Harmless, and Duty to Defend.

A. Indemnification of City.
1) To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively “Indemnitees”), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively “Liabilities”), at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant, its officers, agents, servants, employees, sub-contractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties. Consultant shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of the Indemnitees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith.
2) Consultant shall pay all required taxes on amounts paid to Consultant under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant shall fully comply with the workers’ compensation law regarding Consultant and Consultant’s employees. Consultant shall indemnify and hold City harmless from any failure of Consultant to comply with applicable workers’ compensation laws. City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this subparagraph A.2. 1029
-11-
3) Consultant shall obtain executed indemnity agreements with provisions identical to those in this Article from each and every sub-contractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement.

D. Survival of Terms. Consultant’s indemnifications and obligations under this Article shall survive the expiration or termination of this Agreement.

ARTICLE 5. RECORDS, REPORTS, AND RELEASE OF INFORMATION

5.1 Service Records.

Consultant shall keep, and require sub-contractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and Services performed hereunder (the “Service Records”), as shall be necessary to perform the Services required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. Any and all such Service Records shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such Service Records at all times during normal business hours of City, including the right to inspect, copy, audit and make copies and transcripts from such Service Records. Such Service Records shall be maintained for a period of three (3) years following completion of the Services hereunder, and City shall have access to such Service Records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the Service Records may be given to City, and access shall be provided by Consultant’s successor in interest (“Consultant’s Successor”). If custody of the Service Records is given to Consultant’s Successor, Consultant shall give written notice to City of the transfer of 1030
-12-
the Service Records to Consultant’s Successor. The notice shall include contact information (address and telephone number) for Consultant’s Successor, and access shall be provided to City by Consultant’s Successor.

5.2 Reports.

5.3 Ownership of Documents.

5.4 Confidentiality and Release of Information.

B. Consultant, its officers, employees, agents or sub-contractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the Services performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Consultant gives City notice of such court order or subpoena. 1031
-13-
C. If Consultant, or any officer, employee, agent or sub-contractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorneys’ fees, caused by or incurred as a result of Consultant’s conduct.

ARTICLE 6. ENFORCEMENT OF AGREEMENT AND TERMINATION

6.1 California Law.

6.2 Disputes; Default.

In the event that Consultant fails to cure its default within such period of time, City may, notwithstanding any other provision of this Agreement, terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.

B. In the event of termination pursuant to this Section, City may take over the Services and prosecute the same to completion by contract or otherwise, and Consultant shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such 1032
-14-
damages), and City may withhold any payments to Consultant for the purpose of set-off or partial payment of the amounts owed City as provided in Section 6.3.

6.3 Retention of Funds.

6.4 Waiver.

Any waiver by either Party of any default must be in writing, and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.

6.5 Rights and Remedies are Cumulative.

Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.

6.6 Legal Action.

In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary 1033
-15-
provision herein, Consultant must file a statutory claim pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action against City under this Agreement.

6.7 Termination Prior to Expiration of Term.

6.8 Attorneys’ Fees.

ARTICLE 7. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION

7.1 Non-liability of City Officers and Employees.

7.2 Conflict of Interest.

7.3 Covenant Against Discrimination.

7.4 Unauthorized Aliens.

Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ 1035
-17-
such unauthorized aliens for the performance of Services covered by this Agreement, and should the any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by City.

ARTICLE 8. MISCELLANEOUS PROVISIONS

8.1 Notices.

If to City Attn: Adam Rush
Director of Community Development
City of Banning
99 East Ramsey Street
Banning, California 92220
Email: [email protected]
With a courtesy copy to: Serita R. Young, City Attorney Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, California 90071
Email: [email protected]
If to Consultant: Attn: Andre Prado
President
Integrity Arborist and Ecoscape Inc
10000 Indiana Ave
Riverside, CA, 9250
Email: [email protected]

8.2 Interpretation.

8.3 Counterparts.

This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 1036
-18-

8.4 Integration; Amendment.

8.5 Severability.

8.6 Mutual Cooperation.

8.7 No Third Party Beneficiaries Intended.

8.8 Final Payment Acceptance Constitutes Release.

The acceptance by Consultant of the final payment made under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Consultant for anything done, furnished or relating to Consultant’s Services. Acceptance of payment shall be any negotiation of City’s check or the failure to make a written extra compensation claim within ten (10) calendar days of the receipt of that check. However, approval or payment by City shall not constitute, nor be deemed, a release of the responsibility and liability of Consultant, its employees, sub-contractors and agents for the accuracy and competency of the 1037
-19-
information provided and/or Services performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the Services prepared by Consultant, its employees, sub-contractors and agents.

8.9 Non-Appropriation of Funds.

8.10 Headings.

8.11 Word Usage.

8.12 Business Days.
“Business Days” refers to days that the Banning City Hall is open for business.

8.13 Corporate Authority.

The persons executing this Agreement on behalf of the Parties hereto warrant that (i): such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of that Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which that Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.

8.14 Electronic Signatures.

Each Party may adopt as its signature an electronic identification consisting of a symbol or code that is affixed to or contained in each document transmitted by such Party (“electronic signature”). The Parties hereto herby agree that electronic signatures are acceptable, shall have the same force and effect under the law as original wet signatures, and shall be sufficient to verify that the Parties have executed this Agreement and such other documents transmitted by the Parties.
1038
-20-
[SIGNATURES ON FOLLOWING PAGE]
1039
-21-
IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first hereinabove written.

CITY OF BANNING CONSULTANT
Douglas Schulze, Date
City Manager
NAME: Date
TITLE:

NAME: Date
TITLE:

ATTEST:

Tax ID No.

Caroline Patton Date
Administrative City Clerk
Address:

APPROVED AS TO FORM:

Richards, Watson & Gershon
City Council Approval: _____________
Serita R. Young Date
City Attorney
NOTE: PROOF OF AUTHORITY TO BIND CONTRACTING PARTY REQUIRED. APPROPRIATE

ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY.
1040
Exhibit “A”-1
EXHIBIT “A”

SCOPE OF SERVICES
I. Consultant will perform the following Services in connection with providing Weed Abatement Services prepared in connection therewith:

II. As part of the Services, Consultant will prepare and deliver the following tangible work products and services to City:

Scope of Work

PROPERTIES OVER 1 ACRE IN SIZE:
1041
Exhibit “A”-2
 Includes all requirement above for Properties under 1 acre in size.  Provide fuel breaks along the property line—fuel breaks maybe 30 to 100 feet, depending on the property size.
 Tree limbs within six (6) feet of the ground that permit fire to spread into the tree canopy and promote amber distribution shall be removed within the perimeter fuel break.  Eliminate all ladder fuels that can easily transmit fire into the tree canopy within the fuel break.
 Remove all hazardous vegetation and combustible material.  Mastication may be required on large parcels.

ADDITIONAL REQUIREMENTS FOR LARGER PROPERTIES
 Requires (if permitted) a fifty (50) feet cross-hatch dividing each acre.

ADDITIONAL REQUIREMENTS IF APPLICABLE
 Weeds shall be abated to the back of the curb, sidewalk, street paving edge of the road, and around and up to fencing and poles.
 The weed abatement procedure shall not disrupt, alter, or block any natural or manmade waterway, stream, or drainage ditch. All of said waterways must be kept clean and free of all debris.
 Handwork will be required where tractors or similar equipment cannot meet the two requirements above.
 Discing or other similar methods for work where handwork is not required.  Dust Control – The Contractor shall be responsible for complying with Federal, State, and Local laws, Regulations, and Ordinances, including but not limited to South Coast Air Quality Management Division RULE 403. FUGITIVE DUST.  The Contractor shall furnish all hand tools, power, and safety equipment necessary to accomplish the specified work.
 The Contractor will always have portable water readily available and in sufficient quantity for each hand crew member.
 Gas/electric weed eaters with adequate supplies, repair parts, and enough fuel/electrical power for an entire day must be supplied for hand crews.  A sufficient reserve of equipment and enough power tools for all crew members shall be available to eliminate downtime.
 Suitable flatbed hydraulic pump trucks or trailers with high sides for hauling will be provided throughout the handwork operation. They are to be operated and maintained at the expense of the Contractor.
1042
Exhibit “A”-3
 All trimmings and debris shall be disposed of at a properly licensed and regulated landfill or recycling facility at the Contractor's expense.
 The loading of materials removed from the site will be accomplished on the same day as cleaning is completed. No materials will be left on the lot for later pickup unless the City approves.
 The Contractor shall always have (1) person responsible for the conduct and supervision of hand crews.
 The Contractor shall always furnish the equipment and personnel needed to complete the work most efficiently.
 The Contractor shall obey all State and Federal laws and codes, all local ordinances and regulations, and any other laws, codes, ordinances, and regulations which may apply. It is the responsibility of the Contractor to keep informed of these laws, codes, ordinances, and regulations and to keep informed of any changes to them.  All pictures must be time-stamped and dated and display the APN. No handwritten dates on photos. All photos will be emailed to The City along with any notes regarding the site.

Before pictures must show the height of the weeds with a City approved weed measuring stick. The measuring stick must be at least 4 feet tall with a red line at the 2-foot mark.

The red line must be put on by a weed abatement officer.  Dump Fees will be covered by The Contractor.

LOCATIONS
Locations change every year due to weather conditions and other factors. The City will generate a list of locations every few months and assign each location to the awarded contractors.

It is the contractor's responsibility to know and to be able to access the site(s) they are given. If you have concerns about accessing remote sites, please indicate that in the RFP since The City will assume you will have the ability to access any locations within the City. The City will provide a list of some previous sites as examples.
1043
Exhibit “A”-4
III. In addition to the requirements of Parts I and II of this Scope of Services, during the performance of the Services, Consultant will keep City appraised through periodic status reports regarding the performance of the Services under this Agreement as set forth below and in Section 5.2, by the following means:
a. In-person meetings and/or teleconferences.
b. Email updates/questions to applicant team and City while reviews are underway.
c. Conference calls.

SPECIAL REQUIREMENTS

TERMS FOR COMPLIANCE WITH CALIFORNIA LABOR LAW REQUIREMENTS

10. Consultant acknowledges that eight hours labor constitutes a legal day’s work.

SCHEDULE OF COMPENSATION
I. Consultant shall perform the following tasks (“Tasks”) at the following rates as attached as Exhibit C-1:

III. City will compensate Consultant for the Services performed upon submission of a valid invoice. Each invoice is to include:

A. Line items for all personnel describing the Services performed, the number of hours worked, and the hourly rate.

B. Line items for all materials and equipment properly charged to the Services.

C. Line items for all other approved reimbursable expenses claimed, with supporting documentation.

D. Line items for all approved sub-contractor labor, supplies, equipment, materials, and travel properly charged to the Services. 1048
Exhibit “C-1”-1
EXHIBIT “C-1”
CONSULTANT’S BILLING RATE AND TASK SCHEDULE
1049
Exhibit “D”- 1
EXHIBIT “D”

SCHEDULE OF PERFORMANCE
I. Consultant shall perform all Services timely, and deliver the specified tangible work products to City in accordance with the schedule as stated in Exhibit “A”.

II. The Contract Officer may approve extensions for performance of the Services in accordance with Sections 1.8 and 3.3.
1050
1051
-1-
AGREEMENT FOR PROFESSIONAL SERVICES (C01018) FOR WEED

ABATEMENT SERVICES BY AND BETWEEN CITY OF BANNING AND
MARIPOSA LANDSCAPES, INC.

THIS AGREEMENT FOR PROFESSIONAL SERVICES (herein “Agreement”) is made and entered into this day: ___________________, (“Effective Date”) by and between the CITY OF BANNING, a California municipal corporation (“City”) and Mariposa Landscapes, Inc., a California Corporation (“Consultant”). City and Consultant are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”

RECITALS
A. City has sought by a proposal (RFP 23-047) for the performance of the services for Weed Abatement and as further defined and described particularly in Article 1 of this Agreement.

D. Pursuant to the City of Banning’s Municipal Code, City has authority to enter into this Agreement.

ARTICLE 1. SERVICES OF CONSULTANT

1.1 Scope of Services.

In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the “Scope of Services” attached hereto as Exhibit A and incorporated herein by this reference, which services may be referred to herein as the “Services” hereunder. As a material inducement to City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the Services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services described herein. Consultant covenants that it shall follow the highest professional standards in performing the Services required hereunder and that all materials will be of good quality, and fit for the purpose intended. For purposes of this Agreement, the phrase “highest 1052
-2-
professional standards” shall mean those standards of practice recognized by one or more firstclass firms performing similar work under similar circumstances.

1.2 Contract Documents and Exhibits.

1.3 Compliance with Law.

1.4 Licenses, Permits, Fees and Assessments.

1.5 Familiarity with Services.

1.6 Prevention of Loss and Damages.

Consultant shall adopt reasonable methods during the Term (defined in Section 3.4) to furnish continuous protection to the work product, and the equipment, materials, papers, 1053
-3-
documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Services by City, except such losses or damages as may be caused by City’s own negligence.

1.7 Further Responsibilities of Parties.

1.8 Additional Services.

City shall have the right at any time during the performance of the Services, without invalidating this Agreement, to order extra services beyond that specified in the Scope of Services or to make changes by altering, adding to or deducting from the Services. No such extra services may be undertaken unless a written order is first given by the Contract Officer to Consultant, which written order incorporates therein an adjustment in (i) the Contract Sum (as defined in Section 2.1), and/or (ii) the Schedule of Performance, (as defined in Section 3.2), and which written order is approved in writing by Consultant. Any increase in compensation of up to ten percent (10%) of the Contract Sum, or $25,000, whichever is less; or in the Schedule of Performance of up to one hundred eighty (180) days may be approved by the Contract Officer.

Any greater increases, taken either separately or cumulatively, must be approved by City Council. It is expressly understood by Consultant that the provisions of this Section shall not apply to Services which are specifically set forth in the Scope of Services or which are reasonably contemplated therein. Consultant hereby acknowledges that it accepts the risk that the Services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor.

1.9 Facilities and Equipment.

1.10 Special Requirements.

Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibit B and incorporated herein 1054
-4-
by this reference. In the event of a conflict between the provisions of Exhibit B and any other provisions of this Agreement, the provisions of Exhibit B shall govern.

1.11 Corrections.

In addition to the indemnification obligations set forth in Article 4, and Sections 1.4,

1.13, 5.3, 5.4, and 6.3, Consultant shall correct, at its expense, all errors in the Services which may be disclosed during City’s review of Consultant’s report or plans. Should Consultant fail to make such correction(s) in a reasonably timely manner, such correction(s) may be made by City, and the cost thereof shall be charged to Consultant. In addition to all other available remedies, City may deduct the cost of such correction(s) from any retention amount held by City, or may withhold payment otherwise owed Consultant under this Agreement up to the amount of the cost of correction(s), as provided in Section 6.3.

1.12 Party Representatives.

Name Title
Eduardo Salmeron Contract Representative
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Consultant Representative were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing Consultant Representative shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the Services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the Consultant Representative. For purposes of this Agreement, the foregoing Consultant Representative may not be replaced nor may their responsibilities be substantially reduced or reassigned by Consultant without the express written approval of City. It shall be Consultant’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the Services, and Consultant shall refer any decisions which must be made by City to the Contract Officer.
2) Consultant’s Personnel: Consultant has, or will secure at its own expense, all personnel required to perform the Services required under this Agreement. All of 1055
-5-
the Services required under this Agreement shall be performed by Consultant or under its supervision, and all personnel engaged in the Services shall be qualified to perform such Services. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and sub-contractors, if any, assigned to perform the Services required under this Agreement. Consultant shall notify City of all changes in Consultant’s staff and subcontractors, if any, assigned to perform the Services required under this Agreement, prior to and during any such performance. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires to reassign any staff or sub-contractor of Consultant, City shall give notice as set forth in Section 8.1. Consultant shall, immediately upon the receipt of the notice to re-assign staff from City, reassign such person or persons.

1.13 Independent Contractor.

A. Consultant is an independent contractor and not an employee of City.

1.14 Prohibition Against Subcontracting or Assignment.

The experience, knowledge, capability and reputation of Consultant, the Consultant Representative and employees were a substantial inducement for City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the Services required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty-five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall 1056
-6-
release Consultant or any surety of Consultant of any liability hereunder without the express consent of City.

ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.

2.1 Contract Sum.

Subject to any limitations set forth in this Agreement, as full compensation for Services satisfactorily rendered, City shall pay Consultant at the hourly rates set forth in the “Schedule of Compensation” attached hereto as Exhibit C and incorporated herein by this reference. In no event shall Consultant be paid more than Forty Thousand Dollars ($40,000.00) (the “Contract Sum”). The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by City. Coordination of the performance of the Services with City is a critical component of the Services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending those meetings.

2.2 Method of Compensation.

2.3 Reimbursable Expenses.

City shall only reimburse Consultant for those actual and necessary expenses expressly set forth in Exhibit C. Reimbursable expenses may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual sub-contractor expenses of an approved subcontractor pursuant to Section 1.14, and only if specified in the Schedule of Compensation.

2.4 Unauthorized Services and Expenses.

2.5 Invoices.

Each month Consultant shall furnish to City an original invoice for all Services performed and expenses incurred during the preceding month. Each such invoice shall contain all of the information set forth in Section III of Exhibit C to this Agreement. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all 1057
-7-
provisions of the Agreement. Consultant shall not invoice City for any duplicate Services performed by more than one person.

2.6 Waiver.

Payment to Consultant for Services performed pursuant to this Agreement shall not be deemed to waive any defects in Services performed by Consultant.

ARTICLE 3. PERFORMANCE SCHEDULE

3.1 Time of Essence.

3.2 Schedule of Performance.

3.3 Force Majeure.

3.4 Term.

The Term of this Agreement shall be from the Effective Date through June 30, 2025 unless sooner terminated as provided in Article 6 of this Agreement or extended as provided in Sections 1.8 and 3.3 of this Agreement. This Agreement shall include the option to extend for four (4) additional one-year terms if agreed to in writing in advance by both Parties. Maximum term and any subsequent amendment or modification shall not exceed five (5) years.

ARTICLE 4. INSURANCE AND INDEMNIFICATION

4.1 Minimum Scope and Limits of Insurance.

Consultant shall procure and at all times during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows:

D. Professional Liability/Errors and Omissions Insurance with minimum limits of $1,000,000.00 per claim and in the aggregate. 1059
-9-

4.2 Acceptability of Insurers.

The insurance policies required under this Article shall be issued by an insurer admitted to write insurance in the State of California with a rating of A:VII or better in the latest edition of the A.M. Best Insurance Rating Guide. Self-insurance shall not be considered to comply with the insurance requirements under this Article.

4.3 Additional Insured.

The commercial general and automobile liability policies shall contain an endorsement naming City, its officers, employees, agents and volunteers as additional insureds.

4.4 Primary and Non-Contributing.

4.5 Consultant’s Waiver of Subrogation.

4.6 Deductibles and Self-Insured Retentions.

4.7 Cancellations or Modifications to Coverage.

4.8 City Remedy for Noncompliance.

If Consultant does not maintain the policies of insurance required under this Article in full force and effect during the term of this Agreement, or in the event any of Consultant’s policies do not comply with the requirements under this Article, City may either 1060
-10-
immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may, but has no duty to, take out the necessary insurance and pay, at Consultant’s expense, the premium thereon. Consultant shall promptly reimburse City for any premium paid by City, or City may withhold amounts sufficient to pay the premiums from payments due to Consultant.

4.9 Evidence of Insurance.

Prior to the performance of Services under this Agreement, Consultant shall furnish the City Clerk with a certificate or certificates of insurance and all original endorsements evidencing and effecting the coverages required under this Article. The endorsements are subject to City’s approval. Consultant may provide complete, certified copies of all required insurance policies to City. Consultant shall maintain current endorsements on file with the City Clerk. Consultant shall provide proof to the City Clerk that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Consultant shall furnish such proof at least two (2) weeks prior to the expiration of the coverages.

4.10 Indemnity Requirements not Limiting.

Procurement of insurance by Consultant shall not be construed as a limitation of Consultant’s liability or as full performance of Consultant’s duty to indemnify City under this Agreement.

4.11 Sub-contractor Insurance Requirements.

Consultant shall require each of its sub-contractors that perform Services under this Agreement to maintain insurance coverage that meets all of the requirements of this Article.

4.12 Indemnification, Hold Harmless, and Duty to Defend.

A. Indemnification of City.
1) To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively “Indemnitees”), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively “Liabilities”), at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant, its officers, agents, servants, employees, subcontractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties. Consultant shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of the Indemnitees’ choice, 1061
-11-
and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith. 2) Consultant shall pay all required taxes on amounts paid to Consultant under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant shall fully comply with the workers’ compensation law regarding Consultant and Consultant’s employees. Consultant shall indemnify and hold City harmless from any failure of Consultant to comply with applicable workers’ compensation laws. City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this subparagraph A.2.
3) Consultant shall obtain executed indemnity agreements with provisions identical to those in this Article from each and every sub-contractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. If Consultant fails to obtain such indemnity obligations, Consultant shall be fully responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Liabilities at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant’s subcontractor, its officers, agents, servants, employees, sub-contractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant’s subcontractor shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties.

The indemnities in this Article shall apply regardless of whether or not any insurance policies are determined to be applicable to the Liabilities, tax, assessment, penalty or interest asserted against City.

D. Survival of Terms. Consultant’s indemnifications and obligations under this Article shall survive the expiration or termination of this Agreement. 1062
-12-
ARTICLE 5. RECORDS, REPORTS, AND RELEASE OF INFORMATION

5.1 Service Records.

Consultant shall keep, and require sub-contractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and Services performed hereunder (the “Service Records”), as shall be necessary to perform the Services required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. Any and all such Service Records shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such Service Records at all times during normal business hours of City, including the right to inspect, copy, audit and make copies and transcripts from such Service Records. Such Service Records shall be maintained for a period of three (3) years following completion of the Services hereunder, and City shall have access to such Service Records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the Service Records may be given to City, and access shall be provided by Consultant’s successor in interest (“Consultant’s Successor”). If custody of the Service Records is given to Consultant’s Successor, Consultant shall give written notice to City of the transfer of the Service Records to Consultant’s Successor. The notice shall include contact information (address and telephone number) for Consultant’s Successor, and access shall be provided to City by Consultant’s Successor.

5.2 Reports.

5.3 Ownership of Documents.

All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the “Consultant Documents”) prepared by Consultant, its employees, sub-contractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement. Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the Consultant Documents hereunder. Any use, reuse or assignment of such completed Consultant Documents for other projects and/or use of uncompleted Consultant Documents without specific written authorization by Consultant will be at City’s sole risk and without liability to Consultant, and Consultant’s guarantee and warranties shall not extend to such use or assignment. Consultant may retain copies of such Consultant Documents for its own use. Consultant shall have an unrestricted right to use the concepts 1063
-13-
embodied therein. All sub-contractors shall provide for assignment to City of all Consultant Documents prepared by them; and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom.

5.4 Confidentiality and Release of Information.

ARTICLE 6. ENFORCEMENT OF AGREEMENT AND TERMINATION

6.1 California Law.

6.2 Disputes; Default.

6.3 Retention of Funds.

4.9, above. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Consultant to insure, indemnify, and protect City as elsewhere provided herein.

6.4 Waiver.

Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any Services by Consultant shall not constitute a waiver of 1065
-15-
any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either Party of any default must be in writing, and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.

6.5 Rights and Remedies are Cumulative.

Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.

6.6 Legal Action.

6.7 Termination Prior to Expiration of Term.

6.8 Attorneys’ Fees.

In any litigation or other proceeding by which a Party seeks to enforce its rights under this Agreement (whether in contract, tort or both) or seeks a declaration of any rights or 1066
-16-
obligations under this Agreement, the prevailing Party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees. Attorneys’ fees shall include attorney’s fees on any appeal, and in addition the Party entitled to attorneys’ fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.

ARTICLE 7. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION

7.1 Non-liability of City Officers and Employees.

7.2 Conflict of Interest.

Consultant and its officers, employees, associates and sub-contractors, if any, shall comply with all conflict of interest statutes of the State of California applicable to Consultant’s Services under this Agreement, including the Political Reform Act (Gov. Code § 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Consultant may perform similar services for other clients; but Consultant and its officers, employees, associates and sub-contractors shall not, without the Contract Officer’s prior written approval, perform services for another person or entity for whom Consultant is not currently performing services that would require Consultant or one of its officers, employees, associates or sub-contractors to abstain from a decision under this Agreement pursuant to a conflict of interest statute. 1067
-17-
Consultant shall incorporate a clause substantially similar to this Section into any subcontract that Consultant executes in connection with the performance of this Agreement.

7.3 Covenant Against Discrimination.

7.4 Unauthorized Aliens.

ARTICLE 8. MISCELLANEOUS PROVISIONS

8.1 Notices.

If to City Attn: Adam Rush
Director of Community Development
City of Banning
99 East Ramsey Street
Banning, California 92220
Email: [email protected]
With a courtesy copy to: Serita R. Young, City Attorney Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, California 90071
Email: [email protected]
1068
-18-
If to Consultant: Attn: Eduardo Salmeron
Contract Representative
Mariposa Landscapes, Inc.
6232 Santos Diaz Street
Irwindale, CA 91702
Email: [email protected]

8.2 Interpretation.

8.3 Counterparts.

This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.

8.4 Integration; Amendment.

8.5 Severability.

8.6 Mutual Cooperation.

A. City’s Cooperation. City shall provide Consultant with all pertinent data, documents and other requested information as is reasonably available for Consultant’s proper performance of the Services required under this Agreement. 1069
-19-
B. Consultant’s Cooperation. In the event any claim or action is brought against City relating to Consultant’s performance of Services rendered under this Agreement, Consultant shall render any reasonable assistance that City requires.

8.7 No Third Party Beneficiaries Intended.

8.8 Final Payment Acceptance Constitutes Release.

8.9 Non-Appropriation of Funds.

8.10 Headings.

8.11 Word Usage.

8.12 Business Days.
1070
-20-
“Business Days” refers to days that the Banning City Hall is open for business.

8.13 Corporate Authority.

The persons executing this Agreement on behalf of the Parties hereto warrant that (i): such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of that Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which that Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.

8.14 Electronic Signatures.

Each Party may adopt as its signature an electronic identification consisting of a symbol or code that is affixed to or contained in each document transmitted by such Party (“electronic signature”). The Parties hereto herby agree that electronic signatures are acceptable, shall have the same force and effect under the law as original wet signatures, and shall be sufficient to verify that the Parties have executed this Agreement and such other documents transmitted by the Parties.
[SIGNATURES ON FOLLOWING PAGE]
1071
-21-
IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first hereinabove written.

CITY OF BANNING CONSULTANT
Douglas Schulze, Date
City Manager
NAME: Date
TITLE:

NAME: Date
TITLE:

ATTEST:

Tax ID No.

Caroline Patton Date
Administrative City Clerk
Address:

APPROVED AS TO FORM:

Richards, Watson & Gershon
City Council Approval: _____________
Serita R. Young Date
City Attorney
NOTE: PROOF OF AUTHORITY TO BIND CONTRACTING PARTY REQUIRED. APPROPRIATE

ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY.
1072
Exhibit “A”-1
EXHIBIT “A”

SCOPE OF SERVICES
I. Consultant will perform the following Services in connection with providing Weed Abatement Services prepared in connection therewith:

II. As part of the Services, Consultant will prepare and deliver the following tangible work products and services to City:

Scope of Work

PROPERTIES OVER 1 ACRE IN SIZE:
1073
Exhibit “A”-2
 Includes all requirement above for Properties under 1 acre in size.  Provide fuel breaks along the property line—fuel breaks maybe 30 to 100 feet, depending on the property size.
 Tree limbs within six (6) feet of the ground that permit fire to spread into the tree canopy and promote amber distribution shall be removed within the perimeter fuel break.  Eliminate all ladder fuels that can easily transmit fire into the tree canopy within the fuel break.
 Remove all hazardous vegetation and combustible material.  Mastication may be required on large parcels.

ADDITIONAL REQUIREMENTS FOR LARGER PROPERTIES
 Requires (if permitted) a fifty (50) feet cross-hatch dividing each acre.

ADDITIONAL REQUIREMENTS IF APPLICABLE
 Weeds shall be abated to the back of the curb, sidewalk, street paving edge of the road, and around and up to fencing and poles.
 The weed abatement procedure shall not disrupt, alter, or block any natural or manmade waterway, stream, or drainage ditch. All of said waterways must be kept clean and free of all debris.
 Handwork will be required where tractors or similar equipment cannot meet the two requirements above.
 Discing or other similar methods for work where handwork is not required.  Dust Control – The Contractor shall be responsible for complying with Federal, State, and Local laws, Regulations, and Ordinances, including but not limited to South Coast Air Quality Management Division RULE 403. FUGITIVE DUST.  The Contractor shall furnish all hand tools, power, and safety equipment necessary to accomplish the specified work.
 The Contractor will always have portable water readily available and in sufficient quantity for each hand crew member.
 Gas/electric weed eaters with adequate supplies, repair parts, and enough fuel/electrical power for an entire day must be supplied for hand crews.  A sufficient reserve of equipment and enough power tools for all crew members shall be available to eliminate downtime.
 Suitable flatbed hydraulic pump trucks or trailers with high sides for hauling will be provided throughout the handwork operation. They are to be operated and maintained at the expense of the Contractor.
1074
Exhibit “A”-3
 All trimmings and debris shall be disposed of at a properly licensed and regulated landfill or recycling facility at the Contractor's expense.
 The loading of materials removed from the site will be accomplished on the same day as cleaning is completed. No materials will be left on the lot for later pickup unless the City approves.
 The Contractor shall always have (1) person responsible for the conduct and supervision of hand crews.
 The Contractor shall always furnish the equipment and personnel needed to complete the work most efficiently.
 The Contractor shall obey all State and Federal laws and codes, all local ordinances and regulations, and any other laws, codes, ordinances, and regulations which may apply. It is the responsibility of the Contractor to keep informed of these laws, codes, ordinances, and regulations and to keep informed of any changes to them.  All pictures must be time-stamped and dated and display the APN. No handwritten dates on photos. All photos will be emailed to The City along with any notes regarding the site.

Before pictures must show the height of the weeds with a City approved weed measuring stick. The measuring stick must be at least 4 feet tall with a red line at the 2-foot mark.

The red line must be put on by a weed abatement officer.  Dump Fees will be covered by The Contractor.

LOCATIONS
Locations change every year due to weather conditions and other factors. The City will generate a list of locations every few months and assign each location to the awarded contractors.

It is the contractor's responsibility to know and to be able to access the site(s) they are given. If you have concerns about accessing remote sites, please indicate that in the RFP since The City will assume you will have the ability to access any locations within the City. The City will provide a list of some previous sites as examples.
1075
Exhibit “A”-4
1076
Exhibit “A”-5
1077
Exhibit “A”-6
III. In addition to the requirements of Parts I and II of this Scope of Services, during the performance of the Services, Consultant will keep City appraised through periodic status reports regarding the performance of the Services under this Agreement as set forth below and in Section 5.2, by the following means:
a. In-person meetings and/or teleconferences.
b. Email updates/questions to applicant team and City while reviews are underway.
c. Conference calls.

SPECIAL REQUIREMENTS

TERMS FOR COMPLIANCE WITH CALIFORNIA LABOR LAW REQUIREMENTS

8. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6 and 1777.7 and California Administrative Code Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects. Consultant shall be responsible for compliance with these aforementioned Sections for all apprenticeable occupations. Prior to commencing work under this Agreement, Consultant shall provide City with a copy of the information submitted to any applicable apprenticeship program. Within 60 days after concluding work pursuant to this Agreement, Consultant and each of its subcontractors shall submit to City a verified statement of the journeyman and apprentice hours performed under this Agreement.

10. Consultant acknowledges that eight hours labor constitutes a legal day’s work.

Pursuant to Labor Code section 1815, work performed by employees of Consultant in excess of eight hours per day, and 40 hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of eight hours per day at not less than one and onehalf times the basic rate of pay.

SCHEDULE OF COMPENSATION
I. Consultant shall perform the following tasks (“Tasks”) at the following rates as attached as Exhibit C-1:

III. City will compensate Consultant for the Services performed upon submission of a valid invoice. Each invoice is to include:

A. Line items for all personnel describing the Services performed, the number of hours worked, and the hourly rate.

B. Line items for all materials and equipment properly charged to the Services.

C. Line items for all other approved reimbursable expenses claimed, with supporting documentation.

D. Line items for all approved sub-contractor labor, supplies, equipment, materials, and travel properly charged to the Services. 1082
Exhibit “C-1”-1
EXHIBIT “C-1”
CONSULTANT’S BILLING RATE AND TASK SCHEDULE
Travel to the work sites are included in the pricing within Banning city limits. Travel charges for travel, lodging, and Subsistence shall not exceeds current IRS rates and must pre-approved by the City of Banning.
1083
Exhibit “D”- 1
11303-0008\2344655v8.doc
EXHIBIT “D”

SCHEDULE OF PERFORMANCE
I. Consultant shall perform all Services timely, and deliver the specified tangible work products to City as stated in Exhibit “A”.

II. The Contract Officer may approve extensions for performance of the Services in accordance with Sections 1.8 and 3.3.
1084
1085
City of Banning
Purchasing Division
Barbara Mason, Purchasing Manager
99 E Ramsey St, Banning, CA 92220

EVALUATION TABULATION
RFP No. RFP-23-047

WEED ABATEMENT FOR CODE ENFORCEMENT
RESPONSE DEADLINE: February 28, 2024 at 11:59 pm

SELECTED VENDORS

VENDORS RECOMMENDED BY THE EVALUATION PROCESS
Vendor Location
CM Landscape Redlands, CA
Integrity Arborist and Ecoscape Inc Riverside, CA
Mariposa Landscapes, Inc. Irwindale, CA

EVALUATION CRITERIA
Criteria Scoring Method Weight (Points)
Qualifications Points Based 35 (35% of Total)
Criteria Scoring Method Weight (Points)
Pricing Points Based 25 (25% of Total)
Criteria Scoring Method Weight (Points)
Experience (Projects of similar size and scope) Points Based 20 (20% of Total) Criteria
Scoring Method Weight (Points)
References Points Based 10 (10% of Total)
Criteria Scoring Method Weight (Points)
Approach and Methodology Points Based 10 (10% of Total) 1086

EVALUATION TABULATION
RFP No. RFP-23-047

WEED ABATEMENT FOR CODE ENFORCEMENT

EVALUATION TABULATION
Request for Proposal - WEED ABATEMENT FOR CODE ENFORCEMENT

Page 2 ends

Banning City CouncilMay 14, 2024

Banning City Council
May 14, 2024