Agenda packet, regular meeting, third session — Banning City Council, June 11, 2024 (part 4 of 8)

RESOLUTION 2024-92

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

APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH MATRIX CONSULTING GROUP LTD ("MATRIX") FOR THE COMPREHENSIVE USER FEE AND IMPACT FEE STUDY IN AN AMOUNT NOT-TO-EXCEED $96,954.00
WHEREAS, the City desires to undertake a comprehensive citywide review and evaluation of user fee and rate charges resulting in a cost-based user fee study. The Comprehensive User Fee Study will calculate the full 100% cost of providing certain City services and provide a recommended fee to be charged for each applicable service; and WHEREAS, the City will have to comply with Proposition 26, Proposition 218, and other applicable statutory requirements (including the 2024 California Business Roundtable Ballot initiative (“2024 CBRT Ballot Initiative”)); and WHEREAS, on March 6, 2024, staff released a Request for Proposals for the Comprehensive User Fee and Impact Fee Study. In response, one proposal was received by Matrix. After evaluation of the proposal, staff recommends the award of a Professional Services Agreement to Matrix; and
WHEREAS, the total cost of the Professional Services Agreement (PSA) with Kimley-Horn is for a "not-to-exceed" amount of $96,954.00, which includes a 10% contingency 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 with Matrix for the Comprehensive User Fee and Impact Fee Study in an amount of $88,140.00, attached as Exhibit A, and approves a ten percent contingency for a total not-to-exceed amount of $96,954.00.

SECTION 2. The City Council authorizes the City Manager to make non-substantive changes to the Professional Services Agreement and to execute the Professional Services Agreement with Matrix on behalf of the City Council.

SECTION 3. The City Council authorizes the City Manager, or designee, to make necessary budget adjustments, appropriations, and transfers related to this resolution and to approve changes orders within the ten percent contingency.

SECTION 4. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions.

PASSED, APPROVED AND ADOPTED this 11th day of June 2024.

Alberto Sanchez, Mayor
City of Banning
553
Resolution 2024-92

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ATTEST:

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

Serita R. Young, City Attorney
Richards, Watson & Gershon
554
Resolution 2024-92

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CERTIFICATION:

I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-92, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 11th day of June 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
555
Resolution 2024-92

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EXHIBIT A
Agreement with Matrix Consulting
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AGREEMENT FOR PROFESSIONAL SERVICES (C01032) FOR THE

COMPREHENSIVE USER FEE AND IMPACT FEE STUDY BY AND BETWEEN CITY

OF BANNING AND MATRIX CONSULTING GROUP, LTD
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 Matrix Consulting Group, LTD, 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 issuance of a Request for Proposals (RFP #23-056) for the performance of the services for the Comprehensive User Fee and Impact Fee Study 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 557
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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, 558
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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. 559
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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
Khushboo Ingle Vice 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. 560
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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 561
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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 Eighty-Eight Thousand One Hundred Forty Dollars ($88,140.00) (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.

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 562
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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 563
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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. 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 564
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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. 565
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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.
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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 567
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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 568
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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.

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.

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. 569
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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.

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 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 570
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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. 571
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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.

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.

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 572
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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.

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:

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: Richard Brady
President
Matrix Consulting Group, LTD
1650 S. Amphlett Blvd., Suite 213
San Mateo, CA 94402
Email: [email protected]
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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.

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.

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. 574
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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 575
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this Agreement on behalf of that Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which that Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.

8.14 Electronic Signatures.

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

CITY OF BANNING 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.
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Exhibit “A”-1
EXHIBIT “A”

SCOPE OF SERVICES
I. Consultant will perform the following Services in connection with providing services for the Comprehensive User Fee and Impact Fee Study prepared in connection therewith:

II. As part of the Services, Consultant will prepare and deliver the following tangible work products and services to City:
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Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Matrix Consulting Group 1
A Statement of Understanding and Approach
This section of our proposal demonstrates our understanding of the services requested, and describes our general approach, proposed task plan, and schedule.

Approach
The Matrix Consulting Group works with various clients ranging from small towns to major metropolitan cities in over 45 states across the U.S. and Canada. Every project is unique but is managed according to the following essential project approach:

The approach chosen for completing this project allows us to deliberately review and categorize the allowability of indirect costs as well as determine the best and most tangible metrics for allocation.

Quality Control
We believe very strongly in the science of our craft, especially as it relates to cost of service studies. As such, our firm utilizes quality control techniques which include:
• Project Management: Ensuring our projects meet the needs and timelines of our clients are accomplished through the following:
- The project manager and lead analyst develop general and project specific data collection plans and interview guides.

Understanding City-specific financial data.

Working collaboratively wtih City staff through meetings and workshops.

Applying industry standards, best management practices, and technical expertise for cost allocation and fee application.

Calculating defensible results with buy-in from internal and external stakeholders.

Providing recommendations and transferring knowledge and work products to City staff for successful implementation.

EXHIBIT "A" Exhibit "A" - 2
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Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Matrix Consulting Group 2
- All project work activities are defined in advance and tied to each project team member, deliverables, the schedule, and the budget. - We have frequent client review meetings to discuss the quality and direction of the project through interim deliverables and draft documents. • Quantitative Results: Financial analyses are used to develop budgets and projections, and often are subject to public oversight and review. For this reason, our firm ensures data determined quality control through the following:
- Expenditure data entered into cost models are tied to budget documents. - Workload is used to cross-check true cost associated with services.

These project management approaches have resulted in all our projects being delivered at a high level of quality, on time and on budget.

Tasks
The City Banning is requesting two scopes of work: 1) Comprehensive User Fee Study; and 2) Development Impact Fee Study. These scopes of work can be conducted concurrently as there are economies of scale that can be achieved. The following subsections outline the tasks broken out by project-wide tasks, comprehensive user fee study tasks, and development impact fee tasks.

Project-wide Tasks
There are three key tasks that would span both scopes and then the tasks would vary based upon each scope of work. The following tasks would be conducted for all scopes of work.

Task 1 Data Collection
Prior to any initial meetings, the Matrix Consulting Group will provide the City with a list of initial data requirements for the study. This will allow our project team to review this information thoroughly in preparation for initial discussions with staff. A common list of data collection items include:
• Budgeted Expenditures per Fund and Department.
• Staffing per Fund and Department.
• List of current fees to be included in the scope.
• List of all current city owned infrastructure and equipment EXHIBIT "A" Exhibit "A" - 3
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Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Matrix Consulting Group 3
• Copy of City’s most recent General Plan, Land Use and Housing Elements. • Copy of any previous studies / analyses.
• List of comparable jurisdictions for the comparative analysis.

The provision of these items will allow our project team to familiarize themselves with the City’s structure.

Deliverable List of basic data requirements for the Study Meetings None
Estimated City Support 2-4 hours for staff to collect and distribute information Task 2 Study Objectives and Project Schedule
Once the data has been collected, the project team will then meet with designated City staff to discuss any issues identified by the project team, as well as to clarify any existing issues or concerns held by the City regarding the current user fee study and impact fee study methodology. Discussions will include:
• Review of the City’s specific needs and critical issues surrounding development and implementation of the user fee and development impact fee study. • Opportunities for improvement and restructuring of previous fee analyses. • Discussion of cost recovery goals and targets, as well as infrastructure needs for the City.

At the culmination of the meeting, the project team and the designated City staff will leave with a greater understanding of the overall approach and methodology that will be taken by the project team to conduct the comprehensive fee and impact fee study for the City.

Deliverable Project Schedule
Meetings Kickoff
Estimated City Support 1 hour for all involved City Departments Task 3 Implementation and Future Support
The Matrix Consulting Group is committed to helping our clients develop accurate and defensible cost-of-service methodologies and ensure that they can implement the results of these studies appropriately. Our project team will work with City staff to facilitate an understanding of the results and how to incorporate those results into budget and policy documents, informational handouts, and other City materials.

EXHIBIT "A" Exhibit "A" - 4
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Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Matrix Consulting Group 4
Our Client support continues even after a final report has been issued. We understand that questions can arise about the development of a study well after project completion and are committed to working with our clients to answer any questions about methodologies and applications of results. This support is provided to our clients at no extra cost.

Comprehensive User Fee Study Tasks
The City of Banning is requesting a comprehensive fee analysis. The purpose of these studies is to ensure compliance with existing state rules and regulations as well as future pending state rules and regulations. The following tasks provide an overview of the level of detail utilized to conduct the comprehensive fee study.

Task 1 Develop a Schedule of Current and Potential Fees for Service The project team will work with staff to review their current fee schedules in line-item detail. This meeting is critical in ensuring staff can incorporate any updates or changes to the fee study based on code, regulation, staffing, process, or technological changes.

The focus of this meeting will be the following:
• Renaming fees: Rewording or renaming fees to identify services more clearly. • Eliminating fees: Removing any outdated services or fees. • Adding new fees: Capturing any new services or breaking out existing fee categories to identify all the services being provided by City staff more clearly and identify potential fees for services that the City would like to provide. • Recategorization of fees: Collapsing or expanding multiple fee ranges to better capture the services provided. For example, eliminate lot ranges or acreages if those do not impact the review amount, but add categories based upon the approval level (i.e., Commission vs. Director level).

It is important to note that this meeting occurs first to ensure that any significant proposed structural changes are captured prior to collecting time estimate information or developing draft fee results. However, there is the ability to make future adjustments.

Deliverable Proposed Fee Structure(s)
Meetings Fee Structure Meeting
Estimated City Support 1 hour per involved Department
EXHIBIT "A" Exhibit "A" - 5
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Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Matrix Consulting Group 5
Task 2 Conduct Time Data Gathering Workshops
The project team will conduct workshops to gather time estimates for each service included in the study, interview key personnel from each department, and analyze the various activities being performed. Below is an example of the steps involved in permit processing and the time associated with each step.

Basic process steps in application/permit processing will be documented and provided in detail for each department / division represented in the study. The project team will try to minimize the impact on staff by incorporating any baseline assumptions from prior city studies.

The project team will conduct multiple time estimate workshop(s) for each department / division included in the study, and the workshop results will be Excel-based workbook(s) that staff can review. Staff will be provided time for any edits or comments on time estimate information.

Deliverable Time Estimate Workbook(s)
Meetings 2-3 Time Estimate Workshops
Estimated City Support 1-4 hours per involved Department Task 3 Develop Fully Burdened Hourly Rates
Based on the City’s staffing and budget information, the project team will calculate fully burdened hourly rates, including direct and indirect costs. The following points highlight the cost components and factors included in fully burdened rates:
• Direct costs: This component accounts for salary and benefits associated with each employee or position and reflects City staffing and salary reports. • Indirect costs - Departmental: This component accounts for administrative and management support provided to line-level staff, as well as operational services and supplies that are used in the execution of job duties. This cost component is developed through interviews with staff and an analysis of budgets.

Intake
Permit Tech:
15 mins
Routing
Permit Tech:
10 mins
Initial Review
Plan Checker:
1 hour
Final Review
Plan Checker:
30 mins
Issue Permit
Permit Tech:
15 mins
EXHIBIT "A" Exhibit "A" - 6
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Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Matrix Consulting Group 6
• Indirect costs - Citywide: This component accounts for citywide support such as Finance, HR, and Attorney support provided by other departments. If an overhead rate or cost is unavailable, one will be calculated to apply to different services.

Once the cost components have been documented and developed, the project team will review MOUs and talk with departmental staff to determine appropriate productive hour calculations. These reduced available hours will ensure that fully burdened hourly rates account for leave accruals (holiday, vacation, and sick) and any meetings or training.

Deliverable Fully Burdened Hourly Rates
Meetings None
Estimated City Support 1 hour for Finance
Task 4 Perform Total Cost Analysis
The Matrix Consulting Group’s costing model is built based on the City’s operations, budget details, and intended uses for the results. This method is a customized approach specific to each jurisdiction for cost analysis of user fee services. It is a “bottom-up” approach, the most defensible methodology for calculating user fees. The methodology incorporates the time estimate information and fully burdened hourly rate information.

The following graphic shows the cost calculation:

This costing method uses time and annual activity level data to establish the cost of providing services on both a unit and an annual level. Once the time spent for a fee activity is determined for each individual or position, the team uses its fee and rate software to apply the fully burdened hourly rates calculated in the previous task.

Resulting costs are presented on a unit and annual level and are compared to the existing fee schedule and revenue reports. The City will obtain detailed information regarding cost recovery surpluses and deficits on both a detailed (per unit) and global (annualized) level, as well as an understanding of cost components for each service.

Deliverable Per Unit and Annual Fee Study Results
Meetings 1-2 Draft Results Meetings
Estimated City Support 1-3 hours per Department
Time
Estimate
Fully
Burdened
Rate
Full Cost
Fee
EXHIBIT "A" Exhibit "A" - 7
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Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Matrix Consulting Group 7
Task 5 Conduct a Market Rate Survey
We will work with the City to identify jurisdictions in Riverside and San Bernardino counties to conduct a comparative survey of fees. This comparative survey activity will include:
• Developing fee scenarios for each department included in the study to be compared to other jurisdictions.
• Graphing the results of the fee analysis for easy visual comparison purposes. • Collecting contextual information such as population size, budget, staffing, last time fee study was done, and last fee schedule update.

As market surveys do not provide adequate or objective information about the relationship between a jurisdiction’s costs and fees, these steps ensure we provide the City with the most information possible.

Deliverable Comparative Graphs (included in Draft Report) Meetings None
Estimated City Support None
Task 6 Review / Revise Fee Study Results
Because the analysis of service fees is based on estimates and information provided by City staff, all participants must be comfortable with our methodology and the data they have provided. Once the department agrees that the analysis reflects the reasonable costs of providing services, City management can review the results. At this point, the EXHIBIT "A" Exhibit "A" - 8
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Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Matrix Consulting Group 8
project team will provide City staff with Recommended Fee Workbooks. The Recommended Fee Workbooks will provide departments / divisions with the fee study results in MS Excel. The following shows an example of the workbook:

Current - Per Unit Results
Fee Title Current Fee Total Cost
Surplus/(Deficit)
Per Unit
Cost Recovery
%
Lot Line Adjustment $900 $1,557 ($657) 58%
Temporary Use Permit $40 $325 ($285) 12%
Recommended Fee
Fee Title
Recommended
Fee
$ Change to
Recommended
Fee
% Change to
Recommended Fee
Recommended
Fee Cost
Recovery %
Lot Line Adjustment $1,200 $300 33% 77%
Temporary Use Permit $100 $60 150% 31%
Recommended Fee Annual
Fee Title Workload
Revenue at
Current Fee
Revenue at
Recommended Fee
Potential
Change in
Revenue
Lot Line Adjustment 4 $3,600 $4,800 $1,200
Temporary Use Permit 60 $2,400 $6,000 $3,600
TOTAL $6,000 $10,800 $4,800
As the graphic indicates, the recommended fee workbook allows the City to input information into the Recommended Fee column and see its impacts, such as the dollar increase, percentage increase, and what percentage of their current costs they will recover. Additionally, the workbook allows the City to calculate potential increases or declines in revenue because of the recommended fees.

Deliverable Recommended Fee Workbooks
Meetings None
Estimated City Support 1-2 hours per City Dept
Task 7 Prepare a Draft User Fee Study Report
Upon conclusion of the fee study, we will prepare a detailed report summarizing the results of each of the previous work tasks described above. This report will include:
• A concise executive summary discussing the study, methodology, results, and narrative describing the services included in the study. • A section on proposed modifications to the current fee schedule, including removal or addition of new fees for service.

EXHIBIT "A" Exhibit "A" - 9
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Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Matrix Consulting Group 9
• A section on per unit and annual results for each fee is included in the analysis, as well as where workload data is available.
• A comparative survey section outlining key fees, their comparison to other local jurisdictions, and contextual information regarding budget, staffing, and when they last conducted fee studies.

The draft report will be provided to City staff for comments.

Deliverable Draft Fee Study Report
Meetings None
Estimated City Support 1-2 Hours per Department to Review Report Task 8 Finalize Fee Study Report
Any edits or revisions to the draft user fee study report will be incorporated into the finalized fee study report. This finalized fee study report will include all elements of the draft fee study report and any additional cost recovery considerations and policy considerations for the council’s review.

Deliverable Final Fee Study Report
Meetings None
Estimated City Support None
Task 9 Master Fee Schedule
Once the final user fee study report is approved, the project team will develop a master fee schedule, consolidating all fees in a singular location. The master fee schedule will include a numbering system, the department name, the fee title, the unit of application, the current fee, the total cost per unit calculated through the study, the difference, the cost recovery, the relevant rule / regulation that applies to the fee type, the staff recommended fee, and staff recommended cost recovery level. This attachment is extremely helpful as part of the staff report provided to the Board of Supervisors upon adoption.

Deliverable Master Fee Schedule
Meetings None
Estimated City Support None
Task 10 Present the Final Report to Key Stakeholders
The presentation of results to City officials and/or stakeholders is critical to the success of the overall engagement. Because the product from the study is often controversial, the objective of this final step is to present a succinct summary that provides decision EXHIBIT "A" Exhibit "A" - 10
587
Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Matrix Consulting Group 10
makers with key information. The Matrix Consulting Group will attend and present the Study at up to three (3) Committee or Council meetings, including any fee adoption hearings. We believe that these number of meetings is typically sufficient to ensure that there is buy-in from the stakeholders.

Even though the User Fee and Impact fee study are being conducted concurrently, we would recommend separating the stakeholder presentations to ensure appropriate understanding.

Deliverable Presentation
Meetings 1-3 City Committee / Commission / Council Meetings Estimated City Support 1-2 hours for Presentation Review Task 11 Excel-Based Models and Training
The City of Banning has requested an excel-based model for updating the user fee study.

Our Excel-based models would provide the ability for the City to adapt and continuously update results from year to year as the organization changes.

After the final drafts are approved, at the discretion of City staff, the project team would meet with and train designated City employees on use of the models. Staff will be provided with training, which walks through the model tabs, includes instructions tab in the model, and discusses specific customizations made for the City.

Deliverable Study Model, Backup Documentation, User Guide Meetings Model Training
Estimated City Support 2 hours for Training Attendance
Development Impact Fee Study Tasks
The City of Banning is also interested in conducting a Development Impact Fee Study.

These fee studies must be in compliance with the Mitigation Fee Act (AB1600 and AB602), which require that there is an appropriate nexus to establish the impact fees. The following tasks provide an overview of our process for conducting the nexus analysis.

Task 1 Review of Impact Fees
The purpose of this task is to develop an initial understanding of the City’s proposed impact fee structure, projected growth levels, and any future developments that will impact that population growth. During this phase, the project team will document the following:
• Name of Proposed Impact Fee
EXHIBIT "A" Exhibit "A" - 11
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Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Matrix Consulting Group 11
• Municipal Ordinance / Resolution authorizing the fee
• Capital or Master Plan to support the fee
• Purpose of the fee
This documentation will be critical to ensuring that any updates to the Impact fee program comply with AB1600 and AB602. This documentation will serve as the basis for the project team’s discussion with city staff on next steps for evaluating impact fees.

Deliverable Current Impact Fees Memo
Meetings Impact Fee Current State Discussion
Estimated City Support 1-2 hours for Meeting Attendance Task 2 Projected Population Growth and Facility Needs
The key component of any impact fee analysis is determining the proportionality and nexus that exists based upon projected development. During this task, the project team will conduct research based upon regional forecasted growth as well as internal City staff (Planning) expected growth to determine future population projection.

Based upon that future population projection, the project team would review the City’s current infrastructure inventory and determine if there is any need for additional equipment or new facilities. The project team will also meet with staff to identify any master plans in existence at the time of the creation / development of impact fees. This will require meeting with relevant City department staff to review all equipment and identifying the quantity and cost estimates for these items.

Impact fees cannot be used to enhance existing service levels, only maintain current service levels. During this task, the project team will ensure that for defensibility purposes any new facilities or equipment identified are directly correlated to population increases.

Deliverable Infrastructure Spreadsheet by Service Area
Meetings 1-2 Meetings for Infrastructure Needs
Estimated City Support 1-3 hours for Population Projection Discussions Task 3 Draft Impact Fee Analysis
The largest proportion of the impact fee analysis is the growth and facilities projection.

Once that task is completed and a nexus can be established that is based upon City adopted master plans the project team will work on calculating the draft impact fees.

There are two components to the calculation of impact fees: the total cost of facilities and their cost basis. The following points describe these components:

EXHIBIT "A" Exhibit "A" - 12
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Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Matrix Consulting Group 12
• Total Cost of the Facilities/Infrastructure: There are three different subcomponents that comprise the maximum cost of the facilities that can be used for the calculation of impact fees: cost of facilities/infrastructure, administrative cost, and offsetting credits/revenues.
• Cost Basis: There are several different cost bases that can be used for the calculation of impact fees, such as population, housing units, workload, etc.

Based on data provided by the City, as well as appropriate and preferred cost bases, and State law, the project team will calculate the draft Impact Fees. The project team will meet with City staff to review these draft impact fees based upon land use type.

Deliverable Draft Impact Fee Per Unit Results
Meetings 1-2 Draft Meeting Results
Estimated City Support 1-2 hours per Impact Fee Department Task 4 Comparative Impact Fee Survey
The project team will conduct a comparison of the full cost of Impact Fees and the recommended Impact Fee to other jurisdictions in Riverside and San Bernardino counties.

This comparison will be conducted based upon construction project types, (i.e., new single-family home, new hotel, new multi-family, etc.). The use of construction scenarios provides staff with a comparison of the impact of the fee upon future development.

Deliverable Impact Fee Comparative Survey Results
Meetings Fee Comparison Meeting with City Department(s) Estimated City Support 1-2 hours for City Departments
Task 5 Draft Impact Fee Report
The draft impact fee results and comparative survey will be incorporated into a draft impact fee report. The draft impact fee report will have the following components:
• Executive Summary: Providing a brief overview of the background of the scope, the overall methodology, the results of the analysis, and the implementation guidelines (including future fee increases).
• Legal Framework: This will outline the current legal requirements for impact fees, and how the proposed impact fee will meet these requirements. • Growth Projections: This section of the report outlines the growth projections. • Impact Fee Analysis: This section demonstrates the calculation used to derive the full cost of the impact fees, as well as the recommended fees by the City.

EXHIBIT "A" Exhibit "A" - 13
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Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Matrix Consulting Group 13
• Comparative Survey: This section outlines how the City’s calculated and recommended fees compare to other jurisdictions.

These components will result in a consolidated draft report that will be distributed City staff for review. It will be required to be reviewed by all the different departments to ensure that assumptions are presented accurately.

Deliverable Draft Impact Fee Report
Meetings None
Estimated City Support 1-2 hours for Report Review
Task 6 Final Report
Based upon City staff comments, the project team will revise the Final Report to ensure all comments and concerns are captured. This final report will serve as the basis for presentations to internal and external stakeholders.

Deliverable Final Impact Fee Report
Meetings None
Estimated City Support None
Task 7 Present the Final Report to Key Stakeholders
The presentation of results to City officials and/or stakeholders is critical to the success of the overall engagement. For this particular component of the study, we would recommend involving any local development community as well to ensure that there is buy-in from external stakeholders. We are committed to presenting the findings of the analysis at up to three (3) City Committee / Council meetings as well as to the development community. This number of meetings we believe is typically sufficient to ensure implementation of impact fees.

Deliverable Presentation
Meetings 1-3 City Committee / Council / External Stakeholder Meetings Estimated City Support 1-2 hours for Presentation Review Task 8 Delivery of Impact Fee Backup Documentation
Unlike other cost of services analyses, the components of an impact fee should not be updated annually, as it is primarily based upon population projections and timeframes associated with replacement of existing facility and equipment inventory and / or acquiring new facilities or inventory.

EXHIBIT "A" Exhibit "A" - 14
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Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Matrix Consulting Group 14
When discussing the draft impact fee results with City staff, the project team will share the initial Excel workbook showing calculations, and at the conclusion of the study, the project team will provide the City with the backup workbook showing all calculations. In this workbook, the project team would also set up a template allowing the City to update its impact fees based upon a cost factor. The industry standard for updating impact fees is based upon the construction cost index (CCI). This standard is used as the costs for impact fees are based upon infrastructure rather than labor or material costs.

Deliverable Final Backup Documentation
Meetings None
Estimated City Support None
Project Schedule
Studies of this nature typically take approximately 6 months (24 weeks) to complete. The following table outlines our proposed project schedule on a task-by-task basis.

Task
Month
1 2 3 4 5 6
Project Wide Tasks
Data Collection
Study Objectives
User Fee Study Tasks
Current & Potential Fees
Data Workshops
Fully Burdened Hourly Rates
Total Cost Analysis
Comparative Survey
Review/Revise Results
Draft Fee Study Report
Prepare Final Report
Develop Master Fee Schedule
Development Impact Fee Study
Review of Impact Fees
Projected Growth and Needs
Draft Fees Analysis
Comparative Survey
Draft Report
Final report
The 6-month timeline is for completing the analysis, the implementation options and presentations as well as any excel-based models and training and backup documentation EXHIBIT "A" Exhibit "A" - 15
592
Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Matrix Consulting Group 15
would be provided after 6 months. If the City were to commence this project in the summer, the analysis would be completed by the end of the calendar year, with the first quarter of 2025 being used for presentations and implementation.

Alternatively, we understand that the City is in the midst of completing several master plans, as such we are open to a longer timeline, wherein the User Fee Study is completed first, and then the Development Impact Fee study is started. In that case, each study will roughly take approximately 4-6 months to complete individually.

City Staff Support
We envision a close working relationship with the City throughout the project. We place a strong emphasis on transparency and robust communication. Meticulously reviewing all information and metrics is our standard practice, with a primary focus on verifying inputs before arriving at any final decisions. While we will do our best to minimize impacts on City staff, for example by taking responsibility for data gathering and cleanup, we are committed to reviewing and verifying the outcomes of the data. This commitment to precision, establishes a foundation of data integrity and trust. This approach ensures that our joint efforts consistently yield effective results and outcomes that will benefit the City.

To ensure these effective outcomes we will set up bi-weekly (every 2 weeks) updates with the City. These updates can be in the form of a brief meeting or a summary status email which outlines the work completed to date, the current tasks being performed, and any future tasks. These communications allow us to keep the City informed of any hurdles in completing the project, as well as allow staff to provide input on any key findings from the fee study analysis.

Industry Innovations and Emerging Trends
Matrix Consulting Group prides itself on providing its clients with real world solutions that incorporate new ideas, with a focus on ease of implementation. Our staff are encouraged and financially supported to participate in industry conferences and events, learning about emerging challenges and proposed solutions. Our staff also have access to vast industry networks, engaging in discussions about new solutions to old problems, as well as well future issues expected to arise.

While innovation is encouraged, our project teams are mindful of client needs and limitations. While we will explore all solution options, ultimately, our recommendations will be guided by what’s best for our client, not the newest trend.

The City has requested a comprehensive impact fee analysis. Depending upon the City’s projected growth and master plans there may not be a nexus. The Matrix Consulting Group does offer an alternative task plan for impact fee studies that is broken into phases.

EXHIBIT "A" Exhibit "A" - 16
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Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Matrix Consulting Group 16
Phase 1 would evaluate whether there is an appropriate nexus based upon growth and infrastructure need. If there is a nexus, then Phase 2 would be initiated, which is the calculation of the maximum justifiable impact fees. This can be a cost-effective approach for clients who may be unsure of future growth, as if there is no nexus then no Phase 2 is initiated and there are no charges for that component of the nexus fee analysis. Due to the City’s anticipated growth, we haven’t proposed this task plan, but if the City were interested, we would be open to presenting this alternative task plan to allow for potential cost-savings for the City.

City-Owned Facilities or Properties
The Matrix Consulting Group does not propose to use any City owned facilities to provide these services.

EXHIBIT "A" Exhibit "A" - 17
594
Exhibit “A”-18
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. 595
Exhibit “B”-1
EXHIBIT “B”

SPECIAL REQUIREMENTS
None
596
Exhibit “C”-1
EXHIBIT “C”

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

IV. Consultant’s billing rates for all personnel are attached as Exhibit C-1. 597
Exhibit “C-1”-1
EXHIBIT “C-1”
CONSULTANT’S BILLING RATE AND TASK SCHEDULE
598
Exhibit “C
-1”-2
599
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 attached as Exhibit D-1.

II. The Contract Officer may approve extensions for performance of the Services in accordance with Sections 1.8 and 3.3.
600
Exhibit “D-1”- 1
EXHIBIT “D-1”

PROPOSED PROJECT SCHEDULE
601

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Kristine Gutierrez, Community Development Operations Manager MEETING DATE: June 11, 2024
SUBJECT: Consideration of Resolution 2024-93, Approving a Sole Source Contract with CASC Engineering and Consulting, Inc. for Consulting Services Associated with the Focused General Plan Update Services for Fiscal Year 2024/2025 in the Amount of $186,485
RECOMMENDATION:

Adopt Resolution 2024-93.

BACKGROUND:

In 2020, the Community Development Department solicited a proposal for consulting services to update the City’s General Plan Land Use and Circulation Elements to provide Project Management, Mapping, and Environmental Analysis. On October 27, 2020, the City Council adopted Resolution 2020-134, approving a contract with CASC Engineering and Consulting, Inc., in the amount of $115,482. Contract C00667 was executed on October 30, 2020.

On July 12, 2022, the City Council adopted Resolution 2022-96, an agreement (Amendment No. 1) to include additional services to the originally approved scope of work, which included completion of a Vehicle Miles Traveled (VMT) analysis, revisions to the, project management of the the revised scope, and a contingency amount for a total not to exceed compensation amount of Seventy-One-Thousand, Two-Hundred and Fifty-Two Dollars ($71,252); for a total revised contract amount of One-Hundred and Eighty-Six Thousand, Seven-Hundred and Thirty-Four Dollars ($186,734). This contract amendment was executed on August 22, 2022.

On November 8, 2022, the City Council adopted Resolution 2022-155, an agreement (Amendment No. 2) to include additional services not included in the original contract or in Amendment No. 1.

Amendment No. 2 included additional compensation in an amount not to exceed Fifty-Eight Thousand, Five-Hundred and Seventy-Four Dollars ($58,574) for the following additional services: Level of Service (LOS) Study (subcontractor Urban Crossroads); project management/coordination for LOS study; for a new total contract amount of Two-Hundred and Forty-Five Thousand, Three-Hundred and Eight Dollars ($245,308).This contract amendment was executed on February 16, 2023.

The previously approved contract and subsequent amendments extended the fees attributed to the scope of work, but did not extend the length of time of the contract. The contract has since expired and the City and provider each desire to complete the tasks outlined in the scope of work and append the scope of work to include tasks identified in the attached Sole Source/Emergency Purchase Justification Form. The amount of funds remaining in the expired contract is $123,237.53; which would be used to pay for the remainder of the unfinished tasks in the previously approved scope of work for the project. In addition, the City has requested additional work from CASC, which is outlined in Attachment "B" 602
Schedule of Fees in CASC's submitted Authorization For Additional Work is $63,247. As a result, the total funds sought for approval of a new Sole Source Contract for CASC's services to complete the General Plan Circulation and Land Use Elements is not to exceed One-Hundred Eighty-Six Thousand, Four-Hundred Eighty-Five Dollars ($186,485). Staff recommends the project extend for a duration of two years to allow for sufficient time to complete the General Plan Circulation and Land Use Elements, conduct General Plan Advisory Committee meeting, public workshops, community outreach, conduct public hearings, and integration of final documents into mapping systems and the City's website.

JUSTIFICATION:

The City has not completed a comprehensive update of the General Plan since 2006; as such, provisions of the various current General Plan Elements require detailed analysis and studies to come into compliance with State law as well as internal consistency with other General Plan Elements, City Ordinances and policies. An additional effort is required to accomplish these goals, in part due to the recent changes in legislation, changes in technology, a desire to make information more readily available to the public through web integration, and to address changing circulation and land use needs of the City.

FISCAL IMPACT:

Account Number Years Estimated Amount
001-2800-33-42 2024/2026 $186,485.00
In biennial budget.

ALTERNATIVES:

1. Adopt Resolution 2024-93 as recommended.

2. Adopt Resolution 2024-93 with modifications.

3. Do not approve Resolution 2024-93 and provide alternative direction to staff.

ATTACHMENTS:

1. Resolution 2024-93, CASC Engineering.docx

2. C01041 - CASC PSA Land Use and Circulation Element of City's GP.pdf

3. CASC Sole Source.pdf

4. 3. CASC PR 2020.pdf

5. 4. CASC PR 05-18-22.pdf

6. 5. CASC PR 01-19-23.pdf

7. 6. CASC PO 03-13-23.pdf

8. 7. CASC SOW w_Fees 2024.pdf
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Resolution 2024-93

Page 1 of 4 ends

RESOLUTION 2024-93

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

APPROVING A SOLE SOURCE CONTRACT WITH CASC ENGINEERING AND CONSULTING, INC. FOR CONSULTING SERVICES ASSOCIATED WITH THE FOCUSED GENERAL PLAN UPDATE SERVICES FOR FISCAL YEAR 2024/2025 IN THE AMOUNT OF $186,485
WHEREAS, City staff solicited a proposal consulting services to update the City’s General Plan Elements for Land Use and Circulation for whereby Service Provider agreed to provide Project Management, Mapping, and Environmental Analysis; and WHEREAS, on October 27, 2020, the City of Banning, on Resolution 2020-134, approved an agreement with CASC Engineering and Consulting, Inc., in the amount of $115,482; and WHEREAS, City and CASC Engineering and Consulting, Inc. amended the Agreement (Amendment No. 1) in accordance, with City Council approval of Resolution 2022-96 on July 12, 2022, to include additional compensation in an amount not to exceed Seventy-One-Thousand, Two-Hundred and Fifty-Two Dollars ($71,252) for a total of One-Hundred and Eighty-Six Thousand, Seven-Hundred and Thirty-Four Dollars ($186,734); and WHEREAS, City and CASC Engineering and Consulting, Inc. amended the Agreement (Amendment No. 2) in accordance with City Council approval of Resolution 2022-155 on November 8, 2022, to include additional compensation in an amount not to exceed Fifty-Eight Thousand, Five-Hundred and Seventy-Four Dollars ($58,574) for a total of Two-Hundred and Forty-Five Thousand, Three-Hundred and Eight Dollars ($245,308); and WHEREAS, the previously approved contract and subsequent amendments have expired prior to conclusion of the work effort; and
WHEREAS, City staff has negotiated the Scope of Work with CASC Engineering and Consulting, Inc., to enter into a new sole source agreement to complete the tasks as indicated in the previously approved scope of work and to provide updates to the Land Use and Circulation Elements of the General Plan; and
WHEREAS, the scope of work for these services includes ArcGIS support of the City’s land use/zoning permitting, environmental compliance, and project management; and WHEREAS, funding will be available in the City’s Community Development Department accounts during Fiscal Year 24/25 in the amount of not-to-exceed One-Hundred Eighty-Six Thousand, Four-Hundred Eighty-Five Dollars ($186,485); and WHEREAS, all provisions of this Agreement shall remain unchanged and in full force and effect for two years and shall be set to expire on June 11, 2026 unless extended by resolution of the City Council.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
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Resolution 2024-93

Page 2 of 4 ends

SECTION 1. The City Council approves a sole source Professional Service Agreement with CASC Engineering and Consulting, Inc., in a total contract amount not-to-exceed $186,485, attached as Exhibit A.

SECTION 2. The City Council authorizes the City Manager to execute the Professional Services Agreement on behalf of the City Council. The City Council authorizes the City Manager, or his designee, to make necessary budget adjustments, appropriations, and transfers related to this resolution.

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

PASSED, APPROVED AND ADOPTED this 11th day of June 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
605
Resolution 2024-93

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 2024-93, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 11th day of June 2022 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
606
Resolution 2024-93

Page 4 of 4 ends

Exhibit A
Agreement with CASC Engineering
607
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AGREEMENT FOR PROFESSIONAL SERVICES (C01041) FOR FOCUSED

AMENDMENTS TO THE LAND USE AND CIRCULATION ELEMENT OF

THE CITY'S GENERAL PLANS BY AND BETWEEN CITY OF BANNING AND CASC ENGINEERING AND CONSULTING, 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 CASC ENGINEERING AND CONSULTING, 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 issuance of a Request for Proposal (RFP 20-023) for the performance of the services for the Focused Amendments to the Land Use and Circulation Element of the City's General Plans 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 608
-2-
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.

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.

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.

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
Frank Coyle Director of Planning
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. 611
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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 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.

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.

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 612
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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 Eighty-Six Thousand Four Hundred Eighty-Five Dollars ($186,485.00) (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 613
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Agreement. Consultant shall not invoice City for any duplicate Services performed by more than one person.

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.

3.2 Schedule of Performance.

3.3 Force Majeure.

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 be entitled to recover damages against 614
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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, 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. 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 615
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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.

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.

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. 616
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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.

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, 617
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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.

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. 618
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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 embodied therein. All subcontractors 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 public domain or already known to Consultant. Consultant shall not release or disclose any such 619
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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.

In the event that Consultant fails to cure its default within such period of time, City may, 620
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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 subcontractors 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.

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 621
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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. 622
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ARTICLE 7. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION

7.1 Non-liability of City Officers and Employees.

7.2 Conflict of Interest.

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.

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 are treated during 623
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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: Kristine Gutierrez
Community Development Ops 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: Frank Coyle
Director of Planning
CASC Engineering and Consulting Inc.
1470 E. Cooley Drive
Colton, CA 92324
Email: [email protected]
624
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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.

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.

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 626
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this Agreement on behalf of that Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which that Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.

8.14 Electronic Signatures.

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

CITY OF BANNING 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.
628
Exhibit “A”-1
11303-0005\2469410v1.doc
EXHIBIT “A”

SCOPE OF SERVICES
I. Consultant will perform the following Services in connection with providing the focused amendments to the land use and circulation elements of the City's General Plan prepared in connection therewith:

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

A. Introduction
The City of Banning (“City”) was planning to conduct a Comprehensive Update to the City’s General Plan, including all major and necessary Elements, as well as the addition of an Environmental Justice and Healthy Communities Elements.

However, due to the financial constraints placed upon the City; which resulted from the COVID-19 pandemic and subsequent global recession, the City has significantly reduced the vision and scope of this Comprehensive General Plan Update to focus solely on the Land Use and Circulation Elements.

Concurrent with updates to the City’s Land Use and Circulation Elements, the City is also updating the General Plan to remove the Level of Service (LOS) standards and methodology in lieu of the Vehicle Miles Traveled (VMT) methodology established through the passage of Senate Bill (SB) 743 and the implementing OPR guidance (December, 2018). In addition to the VMT Guidelines update, the City will begin the 6th Cycle Regional Housing Needs Assessment (RHNA) review and subsequent Housing Element amendments. The goal of this Scope of Services is to collaborate with both the VMT Guidelines and RHNA/Housing Element work efforts to amend the following strategic planning documents:

1. The City’s General Plan Land Use Element, including the General Plan Land Use Map and corresponding Land Use Policies which are impacted and effected by corresponding changes resulting from the VMT Guidelines and Housing Element Updates.

2. The City’s Zoning Map, which currently mirrors the General Plan Land Use Map as the City enjoys zoning consistency with their Land Use Designations.

Changes in the Land Use Map (resulting from item number one referenced above) will require corresponding changes to the Zoning Map.

3. The City’s Circulation Element, and specifically the Banning General Plan - Existing General Plan Street System (Exhibit III-4); which is located on page III-3 of Chapter III – Community Development Chapter of the General Plan.

The Circulation Element will require modifications, updates, and changes resulting from corresponding changes in circulation and land use patterns resulting from both the VMT Guidelines and Housing Element Updates. 629
Exhibit “A”-2
11303-0005\2469410v1.doc

4. In addition, the City intends to utilize this opportunity to refresh the disjointed land use patterns established after the 2006 General Plan Update. While the proposed list of parcel-specific land use changes – desired by the City – has not been entirely vetted, the City requests an updated and contemporary Land Use Map that develops a pattern focusing on residential density within appropriate sub-regions of the City that are close to the Interstate 10 freeway and other major east-west arterials. Less dense residential development and open spaces shall be directed towards more suburban areas of the community while respecting historically established land use patterns and areas containing natural barriers, landforms, and the environmental constraints such as faulting, wind erosion, flood patterns, and established circulation patterns. The parcel-specific amendments, policy changes, and consistency updates, to the City’s 2006 General Plan Land Use Map and Element, as well as the 2006 (and recently amended 2012 version) Circulation Element (collectively known herein as the “Element Updates”) serve as the primary focus of this RFP. The consultant shall coordinate with the City of Banning (“City”) to prepare a strategic update to the City’s General Plan Land Use and Circulation Elements, that bring these Elements into consistency with the City’s VMT Guidelines and 6th RHNA Cycle Housing Element Update; which will be at a time concurrent projects to the above. As such, the Consultant shall incorporate contingencies in the requested project management schedule.
i. The Land Use and Circulation Elements shall incorporate the following parameters:
a. The City is currently undergoing a parallel process – under a separate contract and scope – to incorporate and update the City’s General Plan with the required Vehicle Miles Traveled (VMT) criteria and guidelines set forth in SB 743 and the OPR Guidelines.

As of this RFP release date, the City has yet to adopt VMT Guidelines or update our General Plan to remove the LOS standards in lieu of VMT. Establishment of the guidelines and the correlating general plan sections is included within the City’s ongoing VMT Guidelines work plan; which is anticipated to conclude on or before February 28, 2021. However, the VMT guidelines will not be modified in the General Plan; hence it will be the obligation of the Element Updates to incorporate the previously prepared and drafted language into the Land Use and Circulation Elements. In addition, the Element Updates shall coordinate and integrate any remaining language, policies, or requirements that result from the VMT updates, policies, and changes to Land Use and Circulation Elements, that result from the City’s SB 743 VMT Guidelines compliance measures.
b. The City is currently going through a separate process – under a separate contract and scope – to update the existing Housing 630
Exhibit “A”-3
11303-0005\2469410v1.doc
Element to reflect the 6th Cycle RHNA allocation for the City. The Element Updates shall coordinate and integrate the resulting changes to land use and/or circulation that result from the City’s Housing Element Update into the General Plan.

Available below is a brief outline of the project milestones, to be accomplished by the Consultant, with the project management and oversight of City staff.

B. Project Schedule
Develop a project management schedule (in Microsoft Project Management or other similar software platform) that includes all major milestones, required to conduct the required Element Updates; and providing an allocation to conduct public outreach and workshops, as referenced in sub-section “6” below. The anticipated project timeline shall not exceed 18-months (unless modified in writing by City staff, with concurrence from the Consultant). This timeline includes circulation of the Draft Environmental Document, consideration by the Planning Department, adoption of Element Updates by the City Council, and certification by HCD. The City does understand that unforeseen circumstances may, and could, arise throughout the course of this project.. The project schedule shall include a detailed explanation of all stages of the project, including, at a minimum:
1) A “Kick-off” meeting to refine the scope of services as necessary and applicable and to establish clear and consistent lines of communication between City and consultant;
2) Identification of all major milestones, meetings, and work products necessary to complete the Scope of Services;
3) Public outreach, subcommittee meetings (including a possible General Plan Advisory Committee or “GPAC”), and public outreach workshops which the City plans to conduct both in-person (with limited capacity and abiding by the CDC recommended guidelines) along with a virtual (i.e., Zoom) component. It shall be assumed that all public meetings, and to a certain extent, internal meetings, will be conducted with a “virtual option” until further notice. 4) Delivery milestone schedule which shall include providing the aforementioned changes and amendments to the chapters of Land Use and Circulation Elements.

The Consultant shall prepare the required Administrative/Screen Check Drafts, for City staff review. Drafts shall include the required chapter amendments, and the required CEQA clearance documents. At this time, the City anticipates these amendments will require the completion of an Initial Study; which will likely result in a Mitigated Negative Declaration (“IS/MND”) along with the necessary studies to support an IS/MND.
631
Exhibit “A”-4
11303-0005\2469410v1.doc
5) Inclusion of an adequate number of hours to provide Responses to Comments during the public review; i.e., the Draft IS/MND and Notice of Completion (“NOC”) circulation through the Office of Planning and Research/State Clearinghouse (“OPR/SCH”). The Consultant shall aid City staff in preparation of, and during, the Circulation/Publication of the Environmental Document.

This assistance will include support with the City’s Public Hearing Notices (“PHN”) and subsequent public hearing(s).
6) Preparation for, and attendance at, a minimum of two (2) community outreach/public information meetings. These meetings will serve to meet the City’s obligations to provide early and transparent public and community outreach. Each meeting will be advertised and promoted to the public through various digital and print media sources and each meeting is anticipated to require a minimum of four (4) hours each (including drive time). 7) Preparation for, and attendance at, a minimum of four (4) Public hearings; include a minimum of two (2) Planning Commission and two (2) City Council Public Hearings.

C. Environmental Documents
The consultant shall prepare, post, and file all the appropriate environmental documents for compliance with the California Environmental Quality Act (“CEQA”), including the Initial Study, Notice of Intent to Adopt a Mitigated/Negative Declaration; and other CEQA determinations, as applicable.

The Consultant will assist with the Response to Comments, drafting of proposed Mitigation Measures, the Mitigation Monitoring Program Matrix (“MMRP”), and Notice of Completion to be filed with the Riverside County Clerk. In addition, the consultant will be responsible for preparing all notices and mailings for SB 18 and AB 52.

D. Deliverables
1) Prepare and submit one (1) electronic copy in Microsoft Word format and one (1) Adobe Portable Document Format (PDF) of the Screencheck and Administrative Draft(s) of the Element Updates for City staff review and comment in accordance with the project schedule. Design of the draft (e.g., text, font, graphics, tables, figures, and picture placement) shall implement the City’s design theme and history;
2) Revise the Final Administrative Drafts of the Element Updates to incorporate the comments of City staff. The Consultant shall submit one (1) electronic copy in Microsoft Word format and one (1) electronic copy in Adobe Portable Document Format (PDF) of the Draft Element Updates to the Community Development Department for distribution to the City Council, the Planning 632
Exhibit “A”-5
11303-0005\2469410v1.doc
Commission, and the general public for review and comment prior to scheduling of Planning Commission and City Council Public Hearings; 3) Prepare an Errata (as appropriate and necessary); which includes revisions to the draft Element Updates and/or Environmental Document; which includes responses resulting from input provided by the City Council, Planning Commission, and members of the public (as directed by staff). In addition, the consultant shall review and incorporate public review comments, including tracking of said revisions, as needed;
4) Prepare the Final Adopted Drafts, for the Element Updates; which are inclusive of the applicable comments provided during the public review and/or public hearings not previously incorporated. Upon final adoption, the Consultant shall submit one (1) electronic copy in Microsoft Word format, and one (1) electronic copy in Adobe Portable Document Format (PDF) of the Final Element Updates for records retention;
5) Prepare the necessary public meeting presentation materials, memos, letters, and other documents as required by City staff;
6) Provide weekly e-mail progress reports to the City’s designated Project Manager;
7) Assist in the preparation of staff reports and exhibits for Public Workshops, Planning Commission and City Council meetings and public hearings; 8) Provide and maintain a cloud-based folder for all project materials accessible to City staff and consultants;
9) Coordinate with City staff as necessary.

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, and must be revised by Consultant without additional charge to City until found satisfactory and accepted by City.
633
ATTAOIMENT 1B11

SCOPE OF SERVICES
A. GIS EXHIBITS - OCTOBER 2022 to JANUARY 2023
1470 E. Cooley Dr.

Colton, CA 92324
Office: 909.783.0101
Fax: 909.783.0108
Case has exhausted the budget allocated to the preparation of the Project Description (PD) as a result of numerous changes to the PO which include, but not limited to, updating text and exhibits, correcting data inconsistencies, and additional coordination with City staff during weekly meetings. In late 2022, Case incurred an additional forty-six (46) hours of a GIS Specialist and Associate Planner to prepare a new exhibit (Figure 1- 8 Fire & Hazard Severity Zone Exhibit) and additional updates to previously prepared exhibits pertaining to the PD per the City's request. Services include the preparation of the new exhibit, research/data collection, additional coordination, and packaging of the new and existing exhibits to staff for review.

B. GIS EXHIBITS - FEBRUARY 2023 to JANUARY 2024
Case exhausted an additional thirty-six (36) hours of a GIS Specialist and Associate Planner to re-visit land use acreages, assessor parcel number updates, land use densities, and update exhibits accordingly.

C. PROJECT DESCRIPTION - JANUARY 2024 to MARCH 2024
In January of 2024, seven (7) additional sites were added to the PD. In addition, the land use designation changed for the sites from High to Very High Designation. Thus, the PD required to be updated by the Associate Planner and the GIS Specialist to update the text, exhibits, packaging of research/data collection, and coordination with staff and subtonsultants. Case accrued a total seven (7) hours for these services.

Note: At this time, the Project Description, including exhibits, have been deemed complete by the City. If there are future changes to the Project Description and exhibits, time will be billed to the Contingency Task under Addendum No. 1 or under separate authorization.

D, MEETINGS & COORDINATION (T&M) - JANUARY 2024 to MARCH 2024 Case has exceeded the existing T&M task due to weekly meetings, changes to the Project Description, and schedule delays. This includes a total of sixteen (16) hours of the Director of Planning & Associate Planner from January of 2024 to March of2024. Future meetings will be billed out per Task E. Meetings & Coordination (T&M}-April 2024 - October 2024 per this Addendum.

E. MEETINGS & COORDINATION (T&M) - APRIL 2024 to OCTOBER 2024 As noted under Task E above, Case has exhausted the existing T&M task due to weekly meetings, changes to the Project Description, and schedule delays. Thus, to continue the weekly meetings, Case's Director of Planning, Frank Coyle, and Associate Planner will attend additional weekly meetings and coordination time with the City of Banning in support of the scope of services identified in the contract and this addendum. Time for this item will be billed on a time and material (T&M) basis in accordance with our Standard Hourly Fee Rate Schedule. It is anticipated that this will include approximately eight (8) hours a month for approximately six (6) months for a total of ninety-six (96) hours.

F. VEHICLE MILES TRAVELED (VMT) ANALYSIS UPDATE
• Urban crossroads will modify the RIVCOM horizon year model to reflect the reflect the updated Land Use Element Parcel Inventory. As this model is based on socio-economic data compiled by WRCOG with input from its member agencies, adjustments to the traffic analysis zones (TAZ) within the City and its sphere of influence.
• Run the RIVCOM model and with the appropriate model output files calculate project generated total VMT and VMT per service population (i.e. population and employment) for the updated Land Use www.cascinc.com
l
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•
•
•
1470 E. Cooley Dr.

Colton, CA 92324
Office: 909.783.0101
Fax: 909.783.0108
Element Parcel Inventory. This will be done for both the base year and horizon year traffic models and for both the City of Banning and its sphere of influence.

Calculate citywide VMT summing all VMT �n roadways within the City boundary using the boundary method for the With Project, which includes Land Use Element Update Parcel Inventory condition.

Compare VMTand VMT per service population results for the proposed General Plan with updated Land Use Element Parcel Inventory to the current baseline year and future year No Project conditions.

Revise the draft report based on comments provided by the Lead agency for up to 1 review cycle .

G. LEVEL OF SERVICE (LOS) TRAFFIC STUDY UPDATE
• Based on the updated traffic model changes, traffic model forecasts will be generated for roadway segments within the study area. Update will include revising all applicable exhibits, trip generation, traffic volumes, and associated roadway segment operations analysis for the following analysis scenario:
0 General Plan Buildout With Project Conditions
• If applicable, recommend improvements necessary to maintain acceptable intersection performance at the study area intersections for each of the future traffic scenarios. • Prepare a revised traffic report that incorporates the findings and all supporting calculations. • Revise the draft report based on comments provided by the Client and Lead agency for up to 1 review cycle.

ATTACHMENT 11
8 11
SCHEDULE OF FEES:.

A. GIS EXHIBITS· OCTOBER 2022 to JANUARY 2023 $4,646.00 B. GIS EXHIBITS - FEBRUARY 2023 to JANUARY 2024 $3,636.00 c. PROJECT DESCRIPTION -JANUARY 2024 to MARCH 2024 $707.00 D. MEETINGS & COORDINATION - JANUARY 2024 to MARCH 2024 $2,408.00 E. MEETINGS AND COORDINATION - APRIL 2024 to OCTOBER 2024 $18,960.00 F. VEHICLE MILES TRAVELED (VMT) ANAYLVSIS UPDATE {Urban) $19,320.00 G. LEVEL OF SERVICE (LOS) TRAFFIC STUDY UPDATE (Urban) $13,570.00 TOTAL: S.Ul.!ll,OU

REIMBURSABLE
Case Engineering and Consulting (Case) will invoice the Client for printing, binding, reproductions, plotting, deliveries, overnight delivery expenses, mileage, and overnight hotel stays, as incurred. Any additional costs incurred will be covered under a separate contract as approved and authorized by the Client. C asc has provided a Scope and Schedule of Fees in accordance with this representation: If, at any time, the Client determines that their representation is not correct, Client will be held liable for additional costs and will immediately notify C asc so that the appropriate cost adjustments can be made.
www.cascinc.com
635
Exhibit “B”-1
EXHIBIT “B”

SPECIAL REQUIREMENTS
None
636
Exhibit “C”-1
EXHIBIT “C”

SCHEDULE OF COMPENSATION
I. Consultant shall perform the following tasks (“Tasks”) at the rates as attached as 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. 637
Exhibit “C-1”-2
EXHIBIT “C-1”
CONSULTANT’S BILLING RATE AND TASK SCHEDULE
638
Exhibit “C-1”-3
639
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 with the schedule attached as Exhibit D-1.

II. The Contract Officer may approve extensions for performance of the Services in accordance with Sections 1.8 and 3.3.
640
Exhibit “D-1”- 1
11303-0008\2344655v8.doc
EXHIBIT “D-1”

PROPOSED PROJECT SCHEDULE
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ATTACH TO THE SOLE SOURCE FORM
DETAILED JUSTIFICATION FOR SOLE SOURCE:
(widen text boxes as necessary)
The requestor shall clearly provide:
a. A detailed description of the type of contract to be established; b. A detailed description of services and/or commodities to be provided by the vendor; c. An explanation of why the recommended vendor is the only one capable of providing the required services and/or commodities and include back-up information to support the justification; 644
d. The identity of other sources that have been contacted and explain in detail why they cannot fulfill the City’s requirements;
e. An explanation of how the recommended vendor’s prices or fees compare to the general market and attach quotes for comparable services and supplies, if available (limited competition); f. An explanation of how the City would accomplish this particular task if the recommended vendor could not provide the product or service.
645
1470 E. Cooley Dr.

Colton, CA 92324
Office: 909.783.0101
Fax: 909.783.0108
www.cascinc.com

AUTHORIZATION FOR ADDITIONAL WORK

CITY OF BANNING
Attn: Adam Rush, Community Development Director
Community Development Department
99 E. Ramsey St.

Banning, CA 92220
951-922-3131
[email protected]
Casc Engineering and Consulting has developed the following Scope of Services and Schedule of Fees for additional services required on your project. These services are being provided to you outside of the original Scope of Services and Schedule of Fees. You will be invoiced for this work in accordance with the fee schedule below and our standard hourly fee rate schedule.

This additional work order is an addendum to the existing contract. The terms and conditions of the original contract are applicable to this addendum. Subsequent to your review of the above referenced Scope of Services, please sign and return this form to Casc Engineering and Consulting so that work efforts may commence. A faxed/emailed copy of the signed additional work order is acceptable.

Sincerely,
Casc Engineering and
Consulting, Inc.

Frank Coyle
Director of Planning
Authorized by:

City of Banning
By:

Name/Title:

Date:

Date: March 13, 2024
Job No.: 1345-0004
Addendum No.: 03 Revised
Description: GIS Exhibits, Meetings &
Coordination, VMT and LOS Update

SCOPE OF SERVICE
See Attachment “A”

SCHEDULE OF FEES
See Attachment “B”
646
1470 E. Cooley Dr.

Colton, CA 92324
Office: 909.783.0101
Fax: 909.783.0108
www.cascinc.com
EXHIBIT “A”

SCOPE OF SERVICES
Consultant will perform the following Services in connection with providing the focused amendments to the land use and circulation elements of the city's general plan prepared in connection therewith:

A. Introduction as part of the Services, Consultant will prepare and deliver the following tangible work products and services to City:
a. The City of Banning (“City”) is undergoing a Focused General Plan Update that will amend the City’s Land Use Map, Land Use Element policies, the Circulation Exhibit, and Truck Route Exhibit within the Land Use and Circulation Elements. b. The City’s General Plan Land Use Element; including the General Plan Land Use Map and corresponding Land Use Policies are effected by corresponding changes, resulting from the Housing Element Update. The Land Use Map will be updated to implement the corresponding parcel-specific changes resulting from the Certified Housing Element (anticipated July of 2024).
c. The City’s Zoning Map, which currently mirrors the General Plan Land Use Map as the City enjoys zoning consistency with our Land Use Designations. Changes in the Land Use Map (resulting from item number one referenced above) will require corresponding changes to the Zoning Map.
d. The City’s Circulation Element, and specifically the Banning General Plan - Existing General Plan Street System (Exhibit III-4); which is located on page III-3 of Chapter III – Community Development Chapter of the General Plan. The Circulation Element will require modifications, updates, and changes resulting from corresponding changes in circulation and land use patterns resulting from both the VMT Guidelines and Housing Element Updates.

B. In addition, the City intends to utilize this opportunity to refresh the disjointed land use patterns established after the 2006 General Plan Update. While the proposed list of parcel-specific land use changes – desired by the City – has not been entirely vetted, the City requests an updated and contemporary Land Use Map that develops a pattern focusing residential density within appropriate sub-regions of the City that are close to the Interstate 10 freeway and other major east-west arterials. Less dense residential development, and open spaces shall be directed towards more suburban areas of the community while respecting historically established land use patterns and areas containing natural barriers, landforms, and the environmental constraints such as faulting, wind erosion, flood patterns, and established circulation patterns. The parcel-specific amendments, policy changes, and consistency updates, to the City’s 2006 General Plan Land Use Map and Element, as well as the 2006 (and recently amended 2012 version) Circulation Element (collectively known herein as the “Element Updates”) serve as the primary focus of this RFP. The consultant shall coordinate with the City of Banning (“City”) to prepare a strategic update to the City’s General Plan Land Use and Circulation Elements, that bring these Elements into consistency with the City’s VMT Guidelines and 6th RHNA Cycle Housing Element Update; which will be at a time concurrent projects to the above. As such, the Consultant shall incorporate contingencies in the requested project management schedule.
647
1470 E. Cooley Dr.

Colton, CA 92324
Office: 909.783.0101
Fax: 909.783.0108
www.cascinc.com
C. GIS EXHIBITS – OCTOBER 2022 to JANUARY 2023
Casc has exhausted the budget allocated to the preparation of the Project Description (PD) as a result of numerous changes to the PD which include, but not limited to, updating text and exhibits, correcting data inconsistencies, and additional coordinationwith City staff during weekly meetings. In late 2022, Casc incurred an additional forty-six (46) hours of a GIS Specialist and Associate Planner to prepare a new exhibit (Figure 1- 8 Fire & Hazard Severity Zone Exhibit) and additional updates to previously prepared exhibits pertaining to the PD per the City’s request. Services include the preparation of the new exhibit, research/data collection, additional coordination, and packaging of the new and existing exhibits to staff for review.

D. GIS EXHIBITS - FEBRUARY 2023 to JANUARY 2024
Casc exhausted an additional thirty-six (36) hours of a GIS Specialist and Associate Planner to re-visit land use acreages, assessor parcel number updates, land use densities, and update exhibits accordingly.

E. PROJECT DESCRIPTION – JANUARY 2024 to MARCH 2024
In January of 2024, seven (7) additional sites were added to the PD. In addition, the land use designation changed for the sites from High to Very High Designation. Thus, the PD required to be updated by the Associate Planner and the GIS Specialist to update the text, exhibits, packaging of research/data collection, and coordination with staff and subconsultants. Casc accrued a total seven (7) hours for these services.

F. MEETINGS & COORDINATION (T&M) – JANUARY 2024 to MARCH 2024 Casc has exceeded the existing T&M task due to weekly meetings, changes to the Project Description, and schedule delays. This includes a total of sixteen (16) hours of the Director of Planning & Associate Planner from January of 2024 to March of 2024. Future meetings will be billed out per Task E. Meetings & Coordination (T&M) – April 2024 – October 2024 per this Addendum.

G. MEETINGS & COORDINATION (T&M) – APRIL 2024 to OCTOBER 2024 As noted under Task E above, Casc has exhausted the existing T&M task due to weekly meetings, changes to the Project Description, and schedule delays. Thus, to continue the weekly meetings, Casc’s Director of Planning, Frank Coyle, and Associate Planner will attend additional weekly meetings and coordination time with the City of Banning in support of the scope of services identified in the contract and this addendum. Time for this item will be billed on a time and material (T&M) basis in accordance with our Standard Hourly Fee Rate Schedule. It is anticipated that this will include approximately eight (8) hours a month for approximately six (6) months for a total of ninety-six (96) hours.

H. VEHICLE MILES TRAVELED (VMT) ANALYSIS UPDATE
Urban Crossroads will modify the RIVCOM horizon year model to reflect the reflect the updated Land Use Element Parcel Inventory. As this model is based on socio-economic data compiled by WRCOG with input from its member agencies, adjustments to the traffic analysis zones (TAZ) within the City and its sphere of influence.

Run the RIVCOM model and with the appropriate model output files calculate project generated total VMT and VMT per service population (i.e. population and employment) for the updated Land Use Element Parcel Inventory. This will be done for both the base year and horizon year 648
1470 E. Cooley Dr.

Colton, CA 92324
Office: 909.783.0101
Fax: 909.783.0108
www.cascinc.com
traffic models and for both the City of Banning and its sphere of influence.

Calculate citywide VMT summing all VMT on roadways within the City boundary using the boundary method for the With Project, which includes Land Use Element Update Parcel Inventory condition.

Compare VMT and VMT per service population results for the proposed General Plan with updated Land Use Element Parcel Inventory to the current baseline year and future year No Project conditions.

Revise the draft report based on comments provided by the Lead agency for up to 1 review cycle.

I. LEVEL OF SERVICE (LOS) TRAFFIC STUDY UPDATE
Based on the updated traffic model changes, traffic model forecasts will be generated for roadway segments within the study area. Update will include revising all applicable exhibits, trip generation, traffic volumes, and associated roadway segment operations analysis for thefollowing analysis scenario:
a. General Plan Buildout With Project Conditions
If applicable, recommend improvements necessary to maintain acceptable intersection performance at the study area intersections for each of the future traffic scenarios .

Prepare a revised traffic report that incorporates the findings and all supporting calculations.

Revise the draft report based on comments provided by the Client and Lead agency for up to 1 review cycle.
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City of Banning
Purchasing Division
P: (951) 922- 3129
purchasing@banningca. gov
VENDOR #:

VENDOR NAME:

VENDOR ADDRESS:

Page 1 of 4 ends

PURCHASE ORDER
6874

CASC ENGINEERING

CONSULTIN
1470 E COOLEY DR
VENDOR PHONE: ( 909) 783- 0101
VENDOR FAX: ( 909) 783- 0108

PURCHASE
ORDER NO.
030724
Type: P
PRINT DATE: 3/ 13/ 2023
CHANGE # 2 08/ 23/022
AND SHIP TO: COMMUNITY DEVELOPMENT
99 E RAMSEY ST
PO BOX 998
BANNING, CA 92220
Our P. O. # MUST Appear on ALL Invoices, Packages and Correspondence DELIVER BY REQUISITION # REQUISITION DATE CONFIRMED BY
06/ 30/ 224 0000027844 11/0/ 220 MICHELLE FURLONG

FOB ACCOUNT NUMBER AUTHORIZED BY
00128004413342 ARBARA MASON

ITEM QUANTITY/ DESCRIPTION UNIT EXTENDED

UNIT ARTICLE OR SERVICE COST COST

CHANGE ORDER
1 FOCUSED AMENDMENTS TO THE LAND USE AND
24, 396. 78 /CIRCULATION
EA

ELEMENTS OF THE CITY' S GENERAL PLAN
2 FOCUSED AMENDMENTS TO THE LAND USE &
162, 337. 22 CIRCULATION
LOT

AMENDMENT ONE
3 AMEND NO. 2 GEN PLAN UPDATE
58,74. 00 /
EA

1. 0000 24, 396. 78

1. 0000 162, 337. 22

1. 0000 58,74. 00
697
City of Banning
Purchasing Division
P: (951) 922- 3129
purchasing@banningca. gov
VENDOR #:

VENDOR NAME:

VENDOR ADDRESS:

Page 2 of 4 ends

PURCHASE ORDER
6874

CASC ENGINEERING

CONSULTIN
1470 E COOLEY DR
VENDOR PHONE: ( 909) 783- 0101
VENDOR FAX: ( 909) 783- 0108

FOB ACCOUNT NUMBER AUTHORIZED BY
00128004413342 ARBARA MASON

ITEM QUANTITY/ DESCRIPTION UNIT EXTENDED

UNIT ARTICLE OR SERVICE COST COST
RFP 20- 023
CITY COUNCIL APPROVED 10/ 27/020; RESO#
2020- 134
AGREEMENT C00667 EXECUTED 10/ 30/ 2020
CO# 1 ADDED LINE 2 FOR AMENDMENT # 1 TO

EXTEND THE
CONTRACT TERM TO 06/ 30/ 2024 AND ADD
FUNDS
APPROVED BY CITY COUNCIL 07/ 12/ 22
RESOLUTION 2022- 96; REVISED CONTRACT
NTE: $ 186, 734
YEAR 3 OF 5 - 08/ 23/022 NJ
CO3 TO PO FOR AMEND NO. 2 $58,74. 00
REV TOTAL $ 245, 308. 00 BM 3-13- 23
Send Original Invoice to:

FINANCE DEPARTMENT
99 E RAMSEY ST
PO BOX 998
BANNING, CA 92220

AUTHORIZED SIGNATURE

VENDOR ACKNOWLEDGEMENT

RECEIVED BY

APPROVED FOR PAYMENT BY
698
City of Banning
Purchasing Division
P: (951) 922- 3129
purchasing@banningca. gov
VENDOR #:

VENDOR NAME:

VENDOR ADDRESS:

Page 3 of 4 ends

PURCHASE ORDER
6874

CASC ENGINEERING

CONSULTIN
1470 E COOLEY DR
VENDOR PHONE: ( 909) 783- 0101
VENDOR FAX: ( 909) 783- 0108

FOB ACCOUNT NUMBER AUTHORIZED BY
00128004413342 ARBARA MASON

ITEM QUANTITY/ DESCRIPTION UNIT EXTENDED

UNIT ARTICLE OR SERVICE COST COST
699

CITY OF BANNING

PURCHASE ORDER TERMS AND CONDITIONS
This Purchase Order including all attachments, constitutes the entire agreement between the vendor and the City of B aiming (City) covering the goods and/ or services describedherein (the "goods") except as otherwise noted on the front. Failure to decline to perform inwriting constitutes agreement to the terms ofthe Purchase Order.

I. DEFINITIONS: The term " City" means the City of Banning, California, Purchasing Manager" means authorized personnel from the Purchasing Division, and " Vendor" or " Contractor" means person, firm or corporation providing the goods and/ or services to the City. " Goods" means the products, goods, commodities or services purchased pursuant to the Purchase Order. The word " Purchase Order" means the Purchase Order or Blanket Purchase Order, including all attachments such as specifications, or contract agreements issued to the vendor by the City.

In the event of a conflict between a signed contract agreement with the City, and these terms and conditions, the signed contract agreement takes precedence.

2. PRICE: This Purchase Order shall not be filled at prices higher than specified herein. If the delivery of the commodity or service cannot be made exactly as specified and at the time and price shown, notify the City Purchasing Division immediately at the address located on the Purchase Order.

3. CHANGES: This Purchase Order may, at any time, be changed with regard to the material or services to be furnished, or other matters affecting a valid order. However, in order to be effective, any such change or amendment must be in writing. In the event that any such change or amendment causes an increase or decrease in the cost of performance hereunder, an equitable adjustment shall be made to reflect the increase or decrease in the cost thereof. Any such adjustment shall be subject to a written Change Order approved by the Purchasing Manager.

No substitution of Goods ordered will be made unless authorized by the Purchasing Manager.

4. EXCISE TAX: If Federal Excise Tax is applicable to the transaction, it must be so stated and excluded fromtheprice ofthe article. The City of B aiming, as a governmental agency, is exempt from the payment of said tax and will issue an exemption certificate upon request.

5. SALES AND USE TAXES: Sales tax must be shown on the invoice as a separate item. On out-f- sate purchases, the vendor must show his Use Tax Permit Number issued by the California State Board of Equalization, which has authorized him to charge and collect California sales tax.

6. FREIGHT CHARGES: No charges for transportation, containers, packing, etc. will be allowed unless so specified in this Order. Unless otherwise noted, freight is to be shipped F. O. B. Destination. Vendor owns title to goods and is responsible for goods until reaching the City ' s designated destination. When freight charges are pre -approved by the City, the seller' s actual freight charges shall be prepaid and added to the invoice. These charges shall be shown as a separate item on the invoice.

7. DELIVERY DATE: Ifthis Purchase Order is issued for Services, vendor must have work completed by delivery date. If the Purchase Order is for goods, the goods must be shipped and must arrive at the destination specified by the City in strict compliance with the shipping and quantity schedule set forth on the first page of this Purchase Order.

Any failure by the Vendor to meet the required delivery date ( set forth on the Purchase Order) will constitute a material default. The Vendor must notify the City immediately if the Vendor reasonably believes that the Vendor will not be able to meet the required delivery date for any reason. In addition, the Vendor must promptly provide the City with a schedule that the Vendor reasonable believes it will be able to meet.

S. INSPECTION AND ACCEPTANCE: Inspection and acceptanceshall be at the destination specified on the face of the Purchase Order, unless otherwise directed by the City. Until delivery and acceptance, and after any rejections, risk of loss will be on the vendor unless loss results from the negligence of the City of Banning. In the event that the goods or services delivered are defective, or are not in conformity with the Purchase Order, the City shall have the right to either reject said goods or services, or require that they be corrected or otherwise brought into conformity with the terms set forth in the Purchase Order. The City' s failure to inspect and either accept or reject the goods or services delivered shall not relieve the supplier/ contactor for the responsibility for strict compliance with the terms and specifications of the Purchase Order. Upon the City' s notice to supplier/ contactor of its rejection of the goods or services provided or the need for the correction thereof All such defective goods or services shall be removed from City premises and any and all expenses incurred in the removal and/ or correction of such defective goods or services shall be borne entirely by the supplier/ contactor. It is mandatory for a manufacturer, supplier, or distributor to supply a Material Safety Data Sheet with the first shipment of hazardous material. Also at any time the content of an MSDS is revised, the vendor is required to provide new information relevant to the specific material. The City' sPurchase Order Number must be clearly marked on all packages, shipping documents and invoices.

9. TERMINATION: Citymay, uponwrittennoticetovendorandwithout liability to City, cancel this contract and any outstanding deliveries hereunder, ( 1) as to products of vendor not then shipped, at any time prior to shipment, or ( 2) if (A) a receiver or trustee is appointed to take possession of all or substantially all of the vendor' s assets; or (B) vendor
makes a general assignment for the benefit of creditors; or ( C) any action or proceeding is commenced by or against vendor under any insolvency or bankruptcy act, or under any other statute or regulation having as its purpose the protection of creditors; or (D) vendor becomes insolvent or commits an act of bankruptcy. If an event described in (2) of this section occurs, City may at City' ssole election pay vendor its actual out-f- pocket costs to date of cancellation, as approved by City, in which event the goods shall be the property of City and vendor shall safely hold the same subj ect to receipt of City' sshipping instructions.

10. INVOICES AND PAYMENTS: Two copies of the invoice should be mailed to the City ofBanning Finance Department at the address stated on the front of this Purchase Order. Invoices shall contain the Purchase Order Number, description of Goods, unit price, quantity billed and extended totals. Unless otherwise specified, payment will be made on partial deliveries accepted by the City when the amount due on such deliveries so warrants. Payment terms are NET/ 30 unless otherwise specified. All Cash Discounts shall be taken and computed from the date of delivery or completion and acceptance of the material, or from date of receiptof invoice, whichever is latest.

11. CONFLICT OF INTEREST: No officer or employee of the City may have any financial interest, direct or indirect, in this Purchase Agreement. No officer or employee of the City may participate in any decision relating to the Purchase Agreement which effects the officer' s or employee' s
financial interest, or the financial interest of any
corporation, partnership or association in which the officer or employee is directly or indirectly interested.

12. LIABILITY: The vendor/ contractor shall defend, indemnify and hold harmless the City of Banning, its elected officials, officers, directors, employees, agents and volunteers from all claims, losses, damages, costs, expenses and suits, in law or in equity, because of personal injury, property damage or alleged or actual patent infringements, use of any copyrighted or uncopyrighted composition, secret process, article or appliance furnished or used under this order. Further, vendor/ contractor warrants that the vendor shall indemnify and save and hold the City of Banning harmless from and against any and all claims and liabilities for injury or death to any person or damage to property arising out of the vendors' performance under this Purchase Order.

13. LICENSE REQUIREMENTS: If this Purchase Order covers the performance of labor by vendor on City' s premises, the vendor is required to have the appropriate State of California Contractor' s License, if applicable. All vendors/ contractors who perform work within the city, must have, on file at the City of Banning, a current and valid City business license.

14. PREVAILING WAGES: If this Purchase Order is for a public works project, except for public works projects of one thousand dollars 1, 000) or less, contractor must comply with the State of California, Labor Code, Section 1771, with regard to payment of prevailing wages.

This section is applicable to contracts for maintenance work.

15. INSURANCE REQUIREMENTS: Ifthis Purchase Order covers the performance of labor by vendor on City' spremises, the vendor shall provide a certificate of insurance evidencing General Liability Insurance coverage of $2, 000,00 per occurrence for bodily injury, personal injury and property damage. Automobile Insurance coverage of $ 1, 000,00 per accident for bodily injury and property damage; and ( 3) Workers' Compensation and Employer' sLiability: Workers' compensation limits as required by the Labor Code of the State of California. Employers Liability limits on 1, 000,00 per accident for bodily injury or disease.

The City of Banning, its elected officials, officers, directors, employees, agents and volunteers must be named as additional insured on the policy.

16. GOVERNING LAW: This Purchase Order will be administered and interpreted under the laws of the State of California. Vendor warrants that it will comply with all federal, state, and local laws, ordinances, rules and regulation applicable to its performance under this Purchase Order. Any clause required by any law, ordinance, rule or regulation to be included in a contract of the type evidenced by this document shall be deemed to be incorporatedherein.
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CITY OF BANNING

Approve Resolution 2024-94.

BACKGROUND:

The City of Banning in it's role as Lead Agency has issued a Notice of Availability for a Draft Environmental Impact Report (Draft EIR) for the Banning Commerce Center Project to evaluate the environmental impacts of the Project and related entitlements, in accordance with the requirements of the California Environmental Quality Act (CEQA).

The Project site is located north of I-10 Freeway, east of N. Hathaway Street, and bisected by Wilson Street. The City’s Land Use and Zoning designation for the Project site is Business Park. The Project proposes the development of an approximately 1,320,000 square feet (SF) speculative industrial warehouse building that includes approximately 39,600 SF of office space and approximately 1,280,400 SF of warehouse area on approximately 130.72 acres. The Environmental Impact Report will evaluate whether implementation of the Project may potentially result in one or more significant environmental impacts.

Chapter 3.36 of the Banning Municipal Code provides for reasonable recovery of costs borne by the City for expenses relating to land development. The Developer has agreed to fund and be solely responsible for all third party consulting costs and the City's legal costs associated with the preparation of plans, studies and agreements for the Project. Moreover, the Developer has agreed to terms set forth in the Deposit Reimbursement Agreement for the Project, which may include deposits, reimbursements, eligible expenses, deposit administration and other provisions related to the cost of processing the entitlements.

JUSTIFICATION:

The primary reasons to support authorization of a Deposit Reimbursement Agreement between the City of Banning and the Sansone Group are threefold. First, such an agreement allows the City to recover costs for processing entitlements related to the proposed development of the Banning Commerce Center Project. The Banning Municipal Code provides authority to recover expenses from the developer for third party consulting costs and any potential for City's legal costs associated with the processing of plans, studies, agreements, and entitlements for the Project.

Second, the Agreement gives the City sole discretion and control in hiring and managing contractors and consultants for their work on the project. This includes environmental consultants, which allow the City 706
to have independent judgement over the environmental studies, technical studies, and preparation of the Environmental Impact Report.

Lastly, this Agreement further supports that the City is under no obligation to take any action to approve the project. It also provides that this Agreement or any other agreement between the City and the Developer does not create a debt or a liability other than to return unexpected or uncommitted portions of the deposit from the Developer. The Agreement also provides that the Developer must indemnify and hold harmless the City, its officials, officers, employees and agents from any and all actions resulting from or related to the entitlements. The Developer may be required to deposit funds within five days of the request to cover its indemnification obligations for ninety days or to provide other forms of security.

The deposit account must not fall below the amounts specified in the attached Deposit Agreement.

FISCAL IMPACT:

All costs shall be borne by the Developer. There is no Fiscal Impact to the City.

ALTERNATIVES:

1. Adopt Resolution 2024-94 as recommended.

2. Adopt Resolution 2024-94 with modifications.

3. Do not approve Resolution 2024-94 and provide alternative direction to staff.

ATTACHMENTS:

1. Resolution 2024-94, Sansone Agreement.docx

2. Sansone Deposit-Reimbursement Agreement.doc
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Resolution 2024-94

Page 1 of 4 ends

RESOLUTION 2024-94

A RESOLUTION OF THE CITY OF BANNING, CALIFORNIA, APPROVING A DEPOSIT

REIMBURSEMENT AGREEMENT WITH SANSONE GROUP
WHEREAS, the City of Banning Municipal Code Chapter 3.36 provides for recovery of costs reasonable borne by the City for expenses relating to land development; and WHEREAS, the developer, Sansone Group (the "Developer") is proposing to develop an approximately 130.72-acre property in the City commonly known as Banning Commerce Center(the "Project"); and
WHEREAS, the Project contemplates preparing an Environmental Impact Report, Development Agreement, and a Design Review (the "Entitlements") for the development of approximately 1,320,000 square feet (SF) speculative industrial warehouse building that includes approximately 39,600 SF of office space and approximately 1,280,400 SF of warehouse area on approximately 130.72 acres. The Project would include loading docks, trailer parking stalls, passenger vehicle parking stalls, drive aisles, landscaping, and stormwater detention; and WHEREAS, the Developer has agreed to fund and be solely responsible for all third- party consulting costs and the City's legal costs associated with the preparation of plans, studies and agreements for the Project; and
WHEREAS, the Developer has agreed to terms set forth in the Deposit Reimbursement Agreement for deposits, reimbursements, eligible expenses, deposit administration and other provisions related to the cost of processing the Entitlements; and WHEREAS, City Council finds that the provisions of the Deposit Reimbursement Agreement are proper, in the best interest of the City, and in compliance with City's Municipal Code; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:

SECTION 1. The City Council approves the Deposit Reimbursement Agreement with Sansone Group, attached as Exhibit A.

SECTION 2. The City Council authorizes the City Manager to execute the Deposit Reimbursement Agreement in a form approved by the City Attorney on behalf of the City Council.

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

PASSED, APPROVED, and ADOPTED this 11th day of June 2024.

Alberto Sanchez, Mayor
City of Banning
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Resolution 2024-94

Page 2 of 4 ends

ATTEST:

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

Serita R. Young, City Attorney
Richards, Watson & Gershon
709
Resolution 2024-94

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 2024-94, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 11th day of June 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
710
Resolution 2024-94

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EXHIBIT A
Deposit Reimbursement Agreement
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01102/0005/85179.3

DEPOSIT/REIMBURSEMENT AGREEMENT

CITY OF BANNING AND SANSONE GROUP

RELATING TO THE DEVELOPMENT OF BANNING COMMERCE
CENTER
THIS DEPOSIT/REIMBURSEMENT AGREEMENT (“Agreement”) is made this 11th day of June, 2024 by and between the CITY OF BANNING, a municipal corporation (“City”), and Sansone Group (“Developer”) (collectively, the “Parties”).

RECITALS:

WHEREAS, the City of Banning Municipal Code Chapter 3.36 provides for recovery of reasonable costs borne relating to providing products or services relating to the development of the property located at the northeast corner of North Hathaway Street and East Ramsey Avenue (Assessor’s Parcel Numbers (APNs): 532-030-008; -009;
WHEREAS, the City’s policy provides that the City shall be the lead agency as defined by the California Environmental Quality Act, Public Resources Code § 21000 et seq. (“CEQA”), for the purpose of conducting environmental review of the Project, and shall prepare all CEQA reports and supporting documentation, distribute such reports and documentation to responsible agencies and others, hold public hearings and consider public comments, and consider certification of such environmental review report and other documentation through a City Council Resolution, as necessary and appropriate in accordance with CEQA; WHEREAS, the Project contemplates preparing general plan amendments, land use approvals, development agreements, access plans, and financing mechanisms (the "Entitlements");
WHEREAS, the Municipal Code Chapter 3.36 provides that Developer shall fund and be solely responsible for all third-party consulting costs and the City’s legal costs associated with the development of such plans, studies and agreements as set forth in the MOU; WHEREAS, the Parties now desire to specify the terms of such deposit/reimbursement, including a cash deposit to be made by Developer with on-going payments to City and deposit restoration provisions as provided herein.

AGREEMENT:

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants set forth herein, and for other consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
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Section 1. Construction.

This Agreement shall be liberally constructed to accomplish its intent. In the event of any irresolvable conflict or inconsistency in the terms of the agreements, the City Manager shall make a final decision.

Section 2. Conflicts of Interest.
(a) No Financial Relationship. By law, the documents required by CEQA must be independently prepared by City. Accordingly (See Section 4), despite any funding mechanism, during the existence of the City’s contract with an Environmental Consultant (as defined below), and for a period of one (1) year after final resolution of Developer’s application for the Project, neither Developer, nor any of its representatives, agents or other persons acting in concert with Developer, shall enter into any financial relationship with the Environmental Consultant or with any City official, employee, or contractor. Nor, during such period, shall Developer propose to enter into any future relationship with the Environmental Consultant or with any City official, employee, or contractor. This shall not prevent Developer’s consulting with Environmental Consultant as permitted by Section 5 of this Agreement. (b) Developer’s Representations and Warranties. Developer makes the following representations and warranties for the twelve (12) month period preceding the submission of its application for the Project. Developer represents and warrants that it has not entered into any arrangement to pay financial consideration to, and has not made any payment to, the Environmental Consultant or any of the Environmental Consultant’s agents or employees.

Developer further represents and warrants that it has not entered into any arrangement to pay financial consideration to, and has not made any payment to, any City official, agent or employee that would create a legally cognizable conflict of interest as defined in the Political Reform Act (California Government Code sections 87100 et seq.).
(c) Developer’s Acknowledgments. Subject to the reimbursement requirements set forth below, Developer acknowledges and agrees as follows with respect to its application for the Project:
(1) The City has sole discretion to select which of its employees and contractors are assigned to work on the application.
(2) The City has sole discretion to direct the work and evaluate the performance of the employees and contractors assigned to work on the application, and the City retains the right to terminate or replace at any time any such person. (3) The City has sole discretion to determine the amount of compensation paid to employees or contractors assigned to work on the application. (4) The City, not Developer, shall pay employees and contractors assigned to work on the application from a City account.
(d) The Parties acknowledge and agree that the processing of Developer’s application for the Project is not contingent on the hiring of any specific contractor. 713
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Section 3. The Deposit; Additional Advances.
(a) Establishing and Supplementing Deposit. Within three (3) business days following execution of this Agreement, Developer shall provide to the City an initial deposit of $50,000.00, to be allocated as follows: (i) $25,000.00 to apply for and process a Development Agreement (DA) in accordance with Chapter 15.52 of the Banning Municipal Code and the associated CEQA compliance; (ii) $5,000.00 for reoccurring meetings with City staff, (iii) $10,000.00 for engineering and other consultant costs; and (iv) $10,000.00 for the City’s legal (non-litigation) costs. The City shall monitor its expenses and the balance in the deposit account and whenever it believes, in good faith, that there will be insufficient funds to pay all of the City’s expenses for the next ninety (90) days, the City may make a written request for additional funds (“Additional Advance”), which shall state the existing balance and the additional amount requested. The City may request the funds it reasonably believes necessary to cover a period not exceeding ninety (90) days. The deposit account shall generally maintain a minimum balance of five thousand dollars ($5,000.00). The initial deposit and Additional Advanced funds are hereinafter collectively referred to as the “Deposit.” Developer shall make the Additional Advance within five (5) business days of City’s written request therefor. If Developer fails to timely make the Additional Advance, the City may cease all additional work by staff and consultants on the Entitlements (as defined in subsection (b) below), until the Additional Advance has been received.
(b) Eligible Expenses. The Deposit shall be used to pay for the costs incurred by the City in connection with the following (all of which shall be deemed “Eligible Expenses”):
(i) preparing necessary CEQA reports and documents, and additional supporting documentation, as necessary and appropriate in accordance with CEQA; (ii) distributing such documentation to responsible agencies and others; (iii) noticing and holding public hearings and considering public comments on such CEQA documents and reports; (iv) considering certification of such CEQA documents and reports and other documentation through a City Council Resolution in accordance with CEQA; (v) preparing, negotiating, and approving the permits, Entitlements, and conditions of the Project, including without limitation, the environmental documents; (vi) preparing and negotiating all further legal documents in connection with the transaction, including without limitation, technical reports, reclamation plans, development agreements, owner participation agreements, leases, franchise agreements, waste hauling agreements, franchise ordinances, and similar agreements and instruments; (vii) litigation and other legal costs associated with the Project; (viii) the fees and expenses of any consultants employed by the City in connection with the Project, including without limitation, the Draft and Final Environmental Impact Report, the Design Review Entitlement Application (and all aspects associated therein), Development Agreement, and the Fiscal Impact Analysis; (ix) studies, reports and design services related to development of any Project-related infrastructure; and (x) any and all other actions reasonably taken by the City in connection with development of the Project.
(c) Administration of Deposit. The Deposit may be commingled with other funds of the City for purposes of investment and safekeeping. The Deposit shall not accrue interest. The City will administer the Deposit and shall use the Deposit to pay for Eligible Expenses. The City shall maintain satisfactory accounting records as to the expenditure of the Deposits at all times and shall provide Developer with monthly costs reports. 714
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(d) Unexpended Funds. Upon approval of all necessary Entitlements, the expiration of all applicable appeal periods, and if a legal or administrative challenge is made to the Entitlements, then upon the resolution of such challenge in accordance with Section 8, the City shall return any then-unexpended portion of the Deposit to Developer, without interest, less an amount equal to any unpaid Eligible Expenses previously incurred by the City.

Section 4. Compliance with Guidelines: Independent Judgment.

The CEQA Guidelines at sections 15084 and 15090 require the lead agency to exercise its independent judgment in approving environmental documents. Payment of the cost of preparation of the environmental documents by Developer does not undermine the independent preparation of the environmental documents by the City so long as any consultant (the “Consultant”) hired to prepare the environmental documents is under contract to and directed by the City. (Public Resources Code Section 21082.1(a).) Accordingly, it is understood that any such consultant hired by the City to provide a peer-review of environmental documents, including without limitation firms currently listed on the City’s on-call list1 , shall be under
contract to and directed by the City, and Developer shall not attempt to direct, influence, or otherwise control the consultant in the performance of the work. Any questions or concerns Developer may have will be directed to the City.

Section 5. Developer’s Rights Concerning Expenses and Review of Documents. (a) Statements of Account. The City shall provide Developer a summary of expenditures made from the Deposit, and the unexpended balance thereof, whenever requesting any Additional Advance and within ten (10) business days of receipt by the City of a written request therefore submitted by Developer. On a monthly basis, City shall provide Developer with a cost report, including copies of each statement or invoice received from any consultant whose costs are chargeable as Eligible Expenses.
(b) Review of Documents. City shall give Developer at least ten (10) days notice along with copies of any proposed contract with the Environmental Consultant, change orders or contract amendments, drafts, Project Description and Alternatives, comments to the environmental documents received from third parties and proposed responses to those comments, and related documents so that Developer shall have the opportunity to provide comments or objections thereto, prior to the City finalizing, filing, or otherwise releasing any of the foregoing.

The City shall also provide Developer with draft copies of all other reports and studies funded through this Agreement. Developer may discuss issues with the City or its consultants and may make comments orally or in writing. The City shall also use reasonable efforts to permit Developer’s review with respect to agendas and staff reports for all open City Council, Planning Commission and other public body meetings at which the Project or related matters are to be considered, and by providing Developer with draft copies thereof prior to or concurrently with the transmission of such documents to the appropriate body. It is expressly understood that City consultants retained by the City are under contract solely with the City, and the City is free to disregard the comments of Developer and exercise its independent judgment in making payments

1 The City’s approved on-call list of environmental firms includes: MBI, Webb, Romo Planning Group, VCS Environmental, & CASC Engineering and Consulting, Inc.
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to the Consultants or revising or accepting the Consultant’s work product, without any liability whatsoever to Developer therefor.

Section 6. No Obligation to Adopt environmental documents or to Approve Project.

The provisions of this Agreement shall in no way obligate the City to adopt the environmental documents or take any action approving the Project. The City shall use its independent judgment in determining whether to approve the Entitlements, and environmental documents. In the event that the City adopts the environmental documents, the City shall use its independent judgment in determining the significance of any impacts, approving any mitigation program, adopting a statement of overriding considerations, or taking any other action. The City shall have no liability to Developer in any manner whatsoever therefor, other than providing the accounting of expenses as provided herein.

Section 7. Agreement Not a Debt or Liability of City.

It is hereby acknowledged and agreed that this Agreement is not a debt or liability of the City. The City shall not in any event be liable hereunder other than to return the unexpended and uncommitted portions of the Deposit as provided in Sections 3(d) and 3(e) above, and to provide an accounting under Section 5(a) above. The City shall not be obligated to advance any of its own funds with respect to the environmental documents or for any of the other purposes listed in Section 2(b) hereof. No official, officer, employee or agent of the City shall be personally liable hereunder to any extent.

Section 8. Indemnification and Hold Harmless.
(a) Non-liability of City Concerning Entitlements. The Parties acknowledge that there may be challenges to the legality, validity and adequacy of the Entitlements and/or this Agreement in the future; and if successful, such challenges could delay or prevent the performance of this Agreement and the development of the Project. The City shall have no liability under this Agreement for the inability of Developer to develop the Project as the result of a judicial determination that the Entitlements, the reclamation plan, the general plan, the zoning, the land use regulations, or any portions thereof are invalid or inadequate or not in compliance with law.
(b) Participation in Litigation: Indemnity. Developer agrees to indemnify, protect, defend, and hold harmless the City and its officials, officers, employees, agents, elected boards, commissions, departments, agencies, and instrumentalities thereof, from any and all actions, suits, claims, demands, writs of mandamus, liabilities, losses, damages, penalties, obligations, expenses, and any other actions or proceedings (whether legal, equitable, declaratory, administrative, or adjudicatory in nature), and alternative dispute resolution procedures (including, but not limited to, arbitrations, mediations, and other such procedures) arising from or related to the Entitlements (including, but not limited to, attorneys’ fees and costs) (herein the “Claims and Liabilities”) for any such Claims or Liabilities brought against the City and/or any of its officials, officers, employees, agents, departments, agencies, and/or instrumentalities thereof; and Developer shall be responsible for any monetary judgment arising therefrom, 716
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whether such Claims and Liabilities are brought under CEQA, planning and zoning laws, the Subdivision Map Act, Code of Civil Procedure section 1085 or 1094.5, or any other federal, state, or local statute, law, ordinance, rule, regulation, or any decision of a competent jurisdiction. Developer may be required to deposit funds to cover its indemnification obligation or to provide other security. If Developer fails to timely pay such funds, the City may abandon the action without liability to Developer and may recover from Developer any attorneys' fees and other costs for which the City may be liable for abandonment of the action. The City shall provide Developer with notice of the pendency of such action and request that Developer pay for the costs to defend such action. It is expressly agreed that the City shall have the right to utilize the City Attorney’s office or use other legal counsel of its choosing, and Developer shall promptly pay or reimburse the City for any reasonable legal costs and fees incurred by City. If Developer fails to do so, the City may defend the action and Developer shall be liable to the City for the cost thereof, but if the City chooses not to defend the action, the City shall have no liability to Developer. Developer’s obligation to pay the defense costs of the City shall extend until final judgment, including any appeals. Notwithstanding Developer’s indemnity for claims and litigation, the City retains its inherent right to abandon any litigation following an adverse judgment or to settle any litigation brought against it in its sole and absolute discretion, and Developer shall remain liable, other than in the case where judgment adverse to the City and Developer’s position has been rendered, or where a settlement has been negotiated that is materially adverse to the Project. In the case of a settlement without an adverse judgment, the City may still settle the litigation contrary to the wishes of Developer, and shall then be responsible for its own litigation expense, but shall bear no other liability to Developer. If Developer chooses to reduce the scope of the Project or abandon the Entitlements in order to settle any such litigation, the City shall reasonably cooperate in effecting a settlement. (c) Hold Harmless: Developer’s Construction and Other Activities. Developer hereby agrees to, and shall defend, save and hold the City and each of its elected and appointed boards, commissions, officers, agents, and employees harmless from any and all claims, costs (including attorneys’ fees) and liability for any damages, personal injury or death, that may arise, directly or indirectly, from Developer’s or Developer’s agents, contractors, subcontractors, agents, or employees’ operations under this Agreement, whether such operations are conducted by Developer or by any of Developer’s agents, contractors or subcontractors or by any one or more persons directly or indirectly employed by or acting as agent for Developer or any of Developer’s agents, contractors or subcontractors. Nothing herein is intended to make Developer liable for the acts of the City’s officers, employees, agents, contractors, or subcontractors.
(d) Exception. The obligations of Developer under this Section shall not apply to any claims, actions, or proceedings arising through the gross negligence or willful misconduct of the City, its members, officers, or employees.
(e) Survival of Indemnity Obligations. All indemnity provisions set forth in this Agreement shall survive termination of this Agreement.
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Section 9. Notices.

Any notices, requests, demands, documents, approvals or disapprovals given or sent under this Agreement from one party to another (collectively, the “Notices”) shall be given to the party entitled thereto at its address set forth below, or at such other address as such party may provide to the other parties in writing from time to time, namely:

If to Developer:

If to the City:

City Manager
City of Banning
99 E. Ramsey Street
Banning, CA 92220
With a copy to:

Richards Watson Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, CA 90071
Attn: Serita R. Young, City Attorney
Each such Notice shall be deemed delivered to the party to whom it is addressed: (i) if personally served or delivered, upon delivery; (ii) if given by fax, upon the sender's receipt of an appropriate answerback or other written acknowledgement; (iii) if given by registered or certified mail, return receipt requested, deposited with the United States mail postage prepaid, seventytwo (72) hours after such notice is deposited with the United States mail; (iv) if given by overnight courier, with courier charges prepaid, twenty-four (24) hours after delivery to said overnight courier; or (v) if given by any other means, upon delivery at the address specified in this Section.

Section 10. California Law.

This Agreement shall be governed by, construed in accordance with, and interpreted under the laws of the State of California. The venue for any litigation regarding this Agreement shall be Riverside County, State of California.
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Section 11. Severability.

If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible.

Section 12. Attorneys' Fees.

In the event that any party shall commence any legal action or proceeding to enforce or interpret this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorneys’ fees.

Section 13. Ambiguities.

In the event of any asserted ambiguity in, or dispute regarding, the interpretation of any matter herein, the interpretation of this Agreement shall not be resolved by any rules of interpretation providing for interpretation against the party who caused the uncertainty to exist or against the drafting party.

Section 14. Counterparts.

This Agreement may be executed in multiple counterparts, each of which shall be deemed an original.

Section 15. 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 said party; (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement; and (iv) the entering into of this Agreement does not violate any provision of any other agreement to which said party is bound. 719
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IN WITNESS THEREOF, the Parties hereto have executed this Agreement as of the day and year written alongside their respective signature line below.

Executed on: DEVELOPER
__________________________
a ______________ corporation
Executed on:

CITY OF BANNING
ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning
Doug Schulze, ICMA-CM
City Manager
City of Banning
APPROVED AS TO FORM:

Serita R. Young, City Attorney
Richards, Watson & Gershon
720

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Brandon Robinson, Electrical Engineering Supervisor Arturo Vela, Director of Public Works
MEETING DATE: June 11, 2024
SUBJECT: Accept an Easement from Tri Pointe Homes for Electric Utility Purposes on Accessor’s Tract Map No. 37389-1, within the Atwell Development for the Maintenance of the City-Owned Electric Distribution System RECOMMENDATION:

Staff recommends that City Council accepts an easement from Tri Pointe Homes for electric utility purposes for Tract Map No. 37389-1, Lots ‘K’, ‘L’, ‘O’, ‘P’, and ‘Q’ within the Atwell Development for the maintenance of the City-owned electric distribution system.

BACKGROUND:

Final Tract Map No. 37389-1 within the Atwell Development Specific Plan was approved by City Council by Resolution No. 2019-151 on December 10, 2019. Banning Electric Utility has constructed electrical improvements within these tracts that were required to serve the housing development. As part of the Conditions of Approval for the project, the owner is required to provide the City with necessary easements for the maintenance of the City owned electric distribution system.

This easement will cover electric facilities that were constructed within the open space area of Lots ‘K’, ‘L’, ‘O’, ‘P’, and 'Q', which is included in Tract Map 37398-1. The facilities within the proposed easement consist of primary underground electric infrastructure required for utility service along Meadowline Way and Highland Home Avenue within the Atwell development.

JUSTIFICATION:

It is necessary to obtain the easements for the City to access and provide maintenance for the City owned electric distribution equipment which may include utility poles, conduit with conductors, transformers, switchgear, equipment pads and meters.

FISCAL IMPACT:

There is no fiscal impact associated with the acceptance of the easement.

ALTERNATIVES:

Do not approve and provide alternative direction.

ATTACHMENTS:

1. COA -Easement_for_37389-1__Meadowline.pdf
721

2. Att 2_Easement Tract No 37389-1_4-30-24.pdf
722
Recording Requested by:

City Clerk
City of Banning
P.O. Box 998
Banning, CA 92220

NO RECORDING FEE PER SECTION
6103 OF THE GOVERNMENT CODE

CERTIFICATE OF ACCEPTANCE
This is to certify that the EASEMENT – ELECTRIC UTILITY PURPOSES from Tri Pointe Homes IE-SD, Inc., dated 04/30/2024, is hereby accepted by THE CITY OF BANNING pursuant to authority conferred by the City Council this 11th day of June 2024, and the grantees consent to recordation thereof by its duly authorized agent.

Dated: June 11, 2024

CITY OF BANNING
________________________________
Caroline Patton, Administrative City Clerk
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CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Brandon Robinson, Electrical Engineering Supervisor Art Vela, Director of Public Works
MEETING DATE: June 11, 2024
SUBJECT: Accept the Notice of Completion for Project No. 2020-01EL, Ivy and Stagecoach Substation Construction and Authorize the City Manager to Sign and the City Clerk to Record
RECOMMENDATION:

Staff recommends that City Council accepts Project No. 2020-01EL - Ivy and Stagecoach Substation Construction as complete, authorize the City Manager to sign and the City Clerk to record the Notice of Completion.

BACKGROUND:

On August 25, 2020, the City Council adopted Resolution 2020-107, awarding the Construction contract for Project No. 2020-01EL - Ivy and Stagecoach Substation Construction and rejecting all other bids. The project was awarded to Electric Power Systems International, Inc. of Santa Ana, California.

The scope of work included the furnishing of all labor, materials, equipment, services, and incidentals necessary for grading, excavation, installation of concrete foundations, transformers, circuit breakers, metal-clad buildings, disconnect switches, steel bus work, lightning arrestors, insulators, protective relays, fuses, conductors and other substation components required for electric power distribution at 1475 N. Hargrave Street and 1582 E. Westward Avenue in Banning, California.

JUSTIFICATION:

It was necessary to improve the City's electric utility’s electric grid by replacing aging infrastructure and standardizing the system on the 12.47kV standard voltage which allows for better resiliency and less outage duration. Additionally, the City was required to spend bond proceeds that had been specifically earmarked for the upgrades of Alola and Airport Substations, which were replaced with Ivy and Stagecoach Substations.

FISCAL IMPACT:

The contract amount for this project was $6,618,663.70 which included a 10% contingency. The final contract amount including change orders is $6,148,906.61.

ALTERNATIVES:

Do not accept the Notice of Completion and provide alternative direction.

ATTACHMENTS:
735

1. Notice of Completion_EPS-Ivy-Stagecoach.docx
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Notice of Completion Page 1 of 3
1 Recording Requested by:
2 Office of the City Clerk
3 City of Banning
4 P.O. Box 998
5 Banning, California 92220
6 7 Exempt from Recording Fees Pursuant to Government Code §6103 8 9 NOTICE OF COMPLETION
10 PROJECT NO. 2020-01EL, “IVY AND STAGECOACH SUBSTATION 11 CONSTRUCTION”
12 13 THIS NOTICE OF COMPLETION IS HEREBY GIVEN by the OWNER, the City 14 of Banning, a municipal corporation, pursuant to the provisions of Section 9204 of the Civil 15 Code of the State of California, and Project No. 2020-01EL is hereby accepted by the City 16 of Banning, pursuant to authority conferred by the City Council this June 11, 2024, and the 17 grantees consent to recordation thereof by its duly authorized agent. 18 19 That the OWNER, the City of Banning, and Electric Power Systems International Inc. of 20 Santa Ana, California, the vendee, entered into an agreement dated September 9, 2020, for 21 Project No. 2020-01EL, “Ivy and Stagecoach Substation Construction.” 22 23 The principal items of work for the construction of both substations included grading, 24 excavation, installation of concrete foundations, transformers, circuit breakers, metal-clad 25 buildings, disconnect switches, steel bus work, lightning arrestors, insulators, protective 26 relays, fuses, conductors and other substation components required for electric power 27 distribution.
28 The work was performed in the City of Banning, CA 92220. 29 30 That the work was substantially completed on September 5, 2023, for Project No. 2020- 31 01EL “Ivy and Stagecoach Substation Construction”:
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Notice of Completion Page 2 of 3
1 (1) The Nature of Interest was the construction of two electric power 2 distribution substations completed on September 5, 2023 for Project No. 2020-01EL, “Ivy 3 and Stagecoach Substation Construction.”
4 (2) That the City of Banning, a municipal corporation, whose address is 5 Banning City Hall, 99 E. Ramsey Street, Banning, California 92220, is completing 6 maintenance work.
7 (3) That said improvements were performed at two separate locations, 1475 N. 8 Hargrave Street and 1582 E. Westward Avenue, in Banning, California 92220. 9 (4) That the original contractor for said improvement was Electric Power 10 Systems International, Inc. of Santa Ana, California. State Contractor License No. 1068030 11 C-10.
12 (5) That Performance and Payment bonds were required for this project. 13 (6) The nature of interest is in fee.
14 15 Dated: June 11, 2024
16 CITY OF BANNING
17 A Municipal Corporation
18 19
20 21 By
22 Douglas Schulze
23 City Manager
24 25 APPROVED AS TO FORM:
26 27
28 29 Serita R. Young, Esq., City Attorney
30 Richards, Watson & Gershon
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Notice of Completion Page 3 of 3
1 JURAT
2 A notary public or other officer completing this certificate verifies only the identity 3 of the individual who signed the document to which this certificate is attached, 4 and not the truthfulness, accuracy, or validity of that document. 5 6
7 State of California
8 County of Riverside
9 10 Subscribed and sworn to (or affirmed) before me on this ____ day of ____________, 2024 11 by ______________________________, who proved to me on this basis of satisfactory 12 evidence to be the person(s) who appeared before me. 13 14 (S e a l)
15 16
17 18 ______________________________
19 Notary Public in and for said County
20 and State
21 STATE OF CALIFORNIA
22 COUNTY OF RIVERSIDE
23 24 MARIE CALDERON, being duly sworn, deposes and says:
25 26 That I am the City Clerk of the City of Banning, which City caused the work to be 27 performed on the real property hereinabove described, and is authorized to execute this 28 Notice of Completion on behalf of said City; that I have read the foregoing Notice and 29 know the contents thereof, and that the facts stated therein are true based upon information 30 available to the City of Banning, and that I make this verification on behalf of said City of 31 Banning. I declare under perjury that the forgoing is true and correct. 32 Executed on ______________________, 2024 at Banning, California. 33 34
35 City Clerk, City of Banning
}
739

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Brandon Robinson, Electrical Engineering Supervisor Art Vela, Director of Public Works
MEETING DATE: June 11, 2024
SUBJECT: Accept the Notice of Completion for the Electric Substation Equipment Maintenance Testing Project and Authorize the City Manager to Sign and the City Clerk to Record
RECOMMENDATION:

Staff recommends that City Council accepts the Electric Substation Equipment Maintenance Testing Project as complete, authorize the City Manager to sign and the City Clerk to record the Notice of Completion.

BACKGROUND:

On January 9, 2018, the City Council adopted Resolution 2018-04, awarding the contract for the Electric Substation Equipment Maintenance Testing Project and rejecting all other bids. The project was awarded to Electric Power Systems International, Inc. of Santa Ana, California.

The scope of work included testing of electric power distribution equipment at six substations, including major maintenance and equipment replacement.

The contract, C00229, was first amended in February 2020 thru City Council approval to include Major Maintenance and replacement of seven (7) gas-insulated circuit breakers with air-insulated circuit breakers. This maintenance activities considered the California Air Resources Board (CARB) regulations described in Senate Bill 32 (2016) to reduce sulfur hexafluoride (SF6) emissions from gas-insulated equipment to less than 1% beginning in 2020 to less than 0.5% by year 2050. This amendment increased the contract value by $829,982.07 for a new contract total of $980,517.07.

C00229 was amended again in April 2021 thru City Council approval based on recommendations that were identified in the initial maintenance and testing phase of the contract, which included replacements/upgrades to better coordinate system protection, operations and future maintenance tasks.

Also identified during this activity were specific maintenance tasks that could be completed by the Utility’s powerline technician crews that would help deliver cost savings in the future. This amendment increased the contract value by $300,000 for a new contract total of $1,280,517.07.

The contract was amended for a third time in November 2021 thru City Council approval. The principle items of work included engineering support to develop and implement a detailed architecture for proposed SCADA Central System, cyber security aspects, new fiber optic facilities, hardware & software requirements, construction plan, commissioning plan and training. Also included a complete RTU replacement at the Utility’s Sunset Substation along with personnel training for the new equipment. This amendment increased the contract value by $275,000 for a new contract total of $1,555,517.07. 740
The final amendment for C00229 came in August 2022. The Utility was fast approaching the 5-yr maintenance interval on Sunset, Ivy and 22nd St Substation transformers, and made the decision to complete much needed maintenance on these three transformers while also adding an LTC (load tap changers) filtration system at our 22
nd Street substation transformer. This amendment increased the contract value by $70,000 for a new contract total of $1,625,517.07.

JUSTIFICATION:

It was necessary for the Electric Utility to perform the required maintenance on substation equipment since the task hadn't been completed for several years due to the expiration of an agreement between City of Banning and Riverside Public Utilities to provide substation maintenance services. Due to light staffing levels with substation expertise, Electric staff felt it was in the best interest of the City to contact these services.

The contract consisted of testing substation breakers, transformers, switches, protective relays and other equipment by specialty technicians within the six substations; and in accordance with industry standards, specifications and maintenance schedules. Furthermore, the California Public Utilities Commission (CPUC) General Order No. 174 (GO174) defines standards for substation equipment inspection and maintenance protocols. These standards promote worker/operator safety and increased reliability of the grid. Additionally, the Utility is required to maintain industry standards for operation of substation distribution equipment, which includes reduction that use greenhouse gases for operation.

All work was coordinated and inspected by City staff.

FISCAL IMPACT:

The initial contract amount for this project was $150,535 over a three-year service period. The Utility executed several amendments to the agreement to replace major equipment such as eliminating circuit breakers that carried greenhouse gasses, adding new SCADA equipment and protective devices while replacing older devices, and improving the operation of several substation transformers. The final contract expenditure amount was $1,583,170.35 over a period of five years.

ALTERNATIVES:

Do not accept the Notice of Completion and provide alternative direction.

ATTACHMENTS:

1. Attachment 1 - Notice of Completion_EPS Maint.docx
741
Notice of Completion Page 1 of 3
1 Recording Requested by:
2 Office of the City Clerk
3 City of Banning
4 P.O. Box 998
5 Banning, California 92220
6 7 Exempt from Recording Fees Pursuant to Government Code §6103 8 9 NOTICE OF COMPLETION
10 “ELECTRIC SUBSTATION EQUIPMENT MAINTENANCE TESTING”
11 12 THIS NOTICE OF COMPLETION IS HEREBY GIVEN by the OWNER, the City 13 of Banning, a municipal corporation, pursuant to the provisions of Section 9204 of the Civil 14 Code of the State of California, and the Project is hereby accepted by the City of Banning, 15 pursuant to authority conferred by the City Council this June 11, 2024, and the grantees 16 consent to recordation thereof by its duly authorized agent. 17 18 That the OWNER, the City of Banning, and Electric Power Systems International Inc. of 19 Santa Ana, California, the vendee, entered into an agreement dated February 15, 2018, for 20 “Electric Substation Equipment Maintenance Testing” Project. 21 22 The principal items of work included testing of electric power distribution equipment at 23 six substations, including major maintenance and equipment replacement. 24 The work was performed in the City of Banning, CA 92220. 25 26 That the work was substantially completed on February 14, 2023, for the “Electric 27 Equipment Maintenance Testing” Project:
28 (1) The Nature of Interest was testing, major maintenance, and equipment 29 replacement at six electric power distribution substations completed on February 14, 2023 30 for “Electric Equipment Maintenance Testing” Project. 742
Notice of Completion Page 2 of 3
1 (2) That the City of Banning, a municipal corporation, whose address is 2 Banning City Hall, 99 E. Ramsey Street, Banning, California 92220, is has completed the 3 testing and major maintenance work.
4 (3) That said improvements were performed at six separate locations, 176 E.

Lincoln Street, 251 S. 22nd 5 Street, 2301 Mountain Avenue, 4740 W. Ramsey Street, 90 S. 6 Alola Street, and 1973 E. Westward Avenue, in Banning, California 92220. 7 (4) That the original contractor for said improvement was Electric Power 8 Systems International, Inc. of Santa Ana, California. State Contractor License No. 1068030 9 C-10.
10 (5) That Performance and Payment bonds were required for this project. 11 (6) The nature of interest is in fee.
12 13 Dated: June 11, 2024
14 CITY OF BANNING
15 A Municipal Corporation
16 17
18 19 By
20 Douglas Schulze
21 City Manager
22 23 APPROVED AS TO FORM:
24 25
26 27 Serita R. Young, Esq., City Attorney
28 Richards, Watson & Gershon
29 30
31 743
Notice of Completion Page 3 of 3
1 JURAT
2 A notary public or other officer completing this certificate verifies only the identity 3 of the individual who signed the document to which this certificate is attached, 4 and not the truthfulness, accuracy, or validity of that document. 5 6
7 State of California
8 County of Riverside
9 10 Subscribed and sworn to (or affirmed) before me on this ____ day of ____________, 2024 11 by ______________________________, who proved to me on this basis of satisfactory 12 evidence to be the person(s) who appeared before me. 13 14 (S e a l)
15 16
17 18 ______________________________
19 Notary Public in and for said County
20 and State
21 STATE OF CALIFORNIA
22 COUNTY OF RIVERSIDE
23 24 MARIE CALDERON, being duly sworn, deposes and says:
25 26 That I am the City Clerk of the City of Banning, which City caused the work to be 27 performed on the real property hereinabove described, and is authorized to execute this 28 Notice of Completion on behalf of said City; that I have read the foregoing Notice and 29 know the contents thereof, and that the facts stated therein are true based upon information 30 available to the City of Banning, and that I make this verification on behalf of said City of 31 Banning. I declare under perjury that the forgoing is true and correct. 32 Executed on ______________________, 2024 at Banning, California. 33 34
35 City Clerk, City of Banning
}
744

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Brandon Robinson, Electrical Engineering Supervisor Art Vela, Director of Public Works
MEETING DATE: June 11, 2024
SUBJECT: Accept the Notice of Completion for the Electric Utility Underground Construction Labor and Equipment Work Project and Authorize the City Manager to Sign and the City Clerk to Record
RECOMMENDATION:

Staff recommends that City Council accepts the Electric Utility Underground Construction Labor and Equipment Work Project as complete, authorize the City Manager to sign and the City Clerk to record the Notice of Completion.

BACKGROUND:

On February 25, 2020, the City Council adopted Resolution 2020-18, awarding the contract for the Electric Utility Underground Construction Labor and Equipment Work Project and rejecting all other bids.

The project was awarded to Growth Development Marketing, Inc, dba 9500 Inc. of Chino, California.

The scope of work included labor, equipment, and materials to perform underground electric utility construction.

JUSTIFICATION:

The Electric Utility planned to complete several underground distribution projects within its service territory. Rather than bidding several small projects and awarding to different contractors, Electric staff felt it was in the best interest of the City to contract the underground construction services to a single contractor via a competitively bid method using unit costs as the baseline. This allowed the Utility to develop a three year contract with one vendor to help streamline construction performance and deliver cost savings.

FISCAL IMPACT:

The initial contract amount for this project was budgeted for $1,500,000 over a three-year service period.

The final expenditures on this contract amounted to $537,557.51 over the three year period.

ALTERNATIVES:

Do not accept the Notice of Completion and provide alternative direction.

ATTACHMENTS:

1. Notice_of_Completion_GDM.docx
745
Notice of Completion Page 1 of 3
1 Recording Requested by:
2 Office of the City Clerk
3 City of Banning
4 P.O. Box 998
5 Banning, California 92220
6 7 Exempt from Recording Fees Pursuant to Government Code §6103 8 9 NOTICE OF COMPLETION
10 “ELECTRIC UTILITY UNDERGROUND CONSTRUCTION LABOR AND 11 EQUIPMENT WORK”
12 13 THIS NOTICE OF COMPLETION IS HEREBY GIVEN by the OWNER, the City 14 of Banning, a municipal corporation, pursuant to the provisions of Section 9204 of the Civil 15 Code of the State of California, and the Project is hereby accepted by the City of Banning, 16 pursuant to authority conferred by the City Council this June 11, 2024, and the grantees 17 consent to recordation thereof by its duly authorized agent. 18 19 That the OWNER, the City of Banning, and Growth Development Marketing, Inc, dba 20 9500 Inc. of Chino, California, the vendee, entered into an agreement dated March 9, 2020, 21 for “Electric Utility Underground Construction Labor and Equipment Work” Project. 22 23 The principal items of work included labor, equipment, and materials to perform 24 underground electric utility construction.
25 The work was performed in the City of Banning, CA 92220. 26 27 That the work was substantially completed on March 8, 2023, for the “Electric Utility 28 Underground Construction Labor and Equipment Work” Project:
29 (1) The Nature of Interest was labor, equipment, and materials to perform 30 underground electric utility construction completed on March 8, 2023 for “Electric Utility 31 Underground Construction Labor and Equipment Work” Project. 746
Notice of Completion Page 2 of 3
1 (2) That the City of Banning, a municipal corporation, whose address is 2 Banning City Hall, 99 E. Ramsey Street, Banning, California 92220, is has completed the 3 testing and major maintenance work.
4 (3) That said improvements were performed at various locations within the City 5 of Banning Electric Utility’s service area in Banning, California 92220. 6 (4) That the original contractor for said improvement was Growth 7 Development Marketing, Inc., dba 9500 Inc. of Chino, California. State Contractor License 8 No. 1029894 A & C-7.
9 (5) That Performance and Payment bonds were required for this project. 10 (6) The nature of interest is in fee.
11 12 Dated: June 11, 2024
13 CITY OF BANNING
14 A Municipal Corporation
15 16
17 18 By
19 Douglas Schulze
20 City Manager
21 22 APPROVED AS TO FORM:
23 24
25 26 Serita R. Young, Esq., City Attorney
27 Richards, Watson & Gershon
28 29
30 31
747
Notice of Completion Page 3 of 3
1 JURAT
2 A notary public or other officer completing this certificate verifies only the identity 3 of the individual who signed the document to which this certificate is attached, 4 and not the truthfulness, accuracy, or validity of that document. 5 6
7 State of California
8 County of Riverside
9 10 Subscribed and sworn to (or affirmed) before me on this ____ day of ____________, 2024 11 by ______________________________, who proved to me on this basis of satisfactory 12 evidence to be the person(s) who appeared before me. 13 14 (S e a l)
15 16
17 18 ______________________________
19 Notary Public in and for said County
20 and State
21 STATE OF CALIFORNIA
22 COUNTY OF RIVERSIDE
23 24 MARIE CALDERON, being duly sworn, deposes and says:
25 26 That I am the City Clerk of the City of Banning, which City caused the work to be 27 performed on the real property hereinabove described, and is authorized to execute this 28 Notice of Completion on behalf of said City; that I have read the foregoing Notice and 29 know the contents thereof, and that the facts stated therein are true based upon information 30 available to the City of Banning, and that I make this verification on behalf of said City of 31 Banning. I declare under perjury that the forgoing is true and correct. 32 Executed on ______________________, 2024 at Banning, California. 33 34
35 City Clerk, City of Banning
}
748

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Emery Papp, Senior Planner
MEETING DATE: June 11, 2024
SUBJECT: Consideration of Resolution 2024-88, (1) Approving Tentative Parcel Map No. 38164, Allowing the Subdivision of Approximately 47 Gross Acres of Vacant Land Into Three Parcels; (2) Affirming the Planning Commission’s Approval of Design Review No. 21-7008 and Denying an Appeal of that Decision and Permitting the Construction of a Proposed 619,959 Square Foot Industrial Warehouse Building, including 10,000 Square Feet of Office Space and a Combined 34,000 Square Feet of Retail/Commercial Buildings, on Real Property Located within the Boundaries of the Sun Lakes Village North Specific Plan Area (APN: 419- 140-057); and (3) Adopting an Addendum under the California Environmental Quality Act (CEQA) and Making Findings in Support Thereof, Including Findings of Consistency with the Certified Environmental Impact Report Prepared for Amendment No. 5 to the Sun Lakes Village North Specific Plan (SCH # 2020029074)
RECOMMENDATION:

Adopt Resolution 2024-88.

BACKGROUND:

Tentative Parcel Map (TPM) No. 38164 and Design Review (DR) No. 21-7008 propose to subdivide approximately 47.11 gross acres of vacant land located within the Sun Lakes Village North Specific Plan area (SLVNSP) into three commercial/industrial lots to accommodate the construction of a 619,959 square foot industrial warehouse building (the “Project” or the “Banning Point Project”), including a 10,000 square-foot integrated office component. The Project also proposes six new retail/commercial buildings collectively totaling approximately 34,000 square feet (sf), which range in size from 1,600 sf to 8,400 sf. One of the three parcels will remain undeveloped and is not a part of the Design Review application for the Banning Point Project. The Project is intended to be constructed in two phases. Phase 1 will consist of the construction of the industrial building. Phase 2 will consist of the construction of the retail/commercial buildings.

The Planning Commission voted on December 1, 2021, to approve DR No. 21-7008 and recommend approval of TPM No. 38614 to the City Council, and the City Council approved the Project on February 17, 2022, by way of adoption of Resolution No. 2022-14. A group, the Pass Action Group (PAG) filed a lawsuit to challenge approval of the Project. (Pass Action Group v. City of Banning, et al., Riverside County Superior Court Case No. CVRI2201482.) The lawsuit alleged that the City failed to provide a fair hearing due to alleged bias by certain Councilmembers. The lawsuit also contended that the City violated the California Environmental Quality Act (CEQA) and the City’s General Plan in approving the Project, and that the findings in support of the Project were not supported by substantial evidence. Following 749
briefing and a hearing on the merits, the trial court issued a ruling finding only that the City did not provide a fair hearing based on the court’s conclusion that then-Councilmember Mary Hamlin was biased in favor of the Project. The court rejected all claims of bias as to Councilmember Wallace and Councilmember Sanchez, stating in its ruling that “their statements do not overcome the presumption that they are unbiased. There has been no showing of a financial or personal interest in the Project and no specific evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias….” The court also rejected in its entirety all of PAG’s substantive challenges, finding that the City fully complied with CEQA, that the Project is consistent with the City’s General Plan, and that the City’s findings were supported by substantial evidence, as discussed further below. As the court concluded in its ruling, the court “does not find that Petitioner [PAG] has carried its burden of proof on any remaining issue and would not grant the writ but for the fair hearing issue.” The court entered judgment and issued a writ of mandate directing the City to set aside the prior Project approval and to reconsider the Project without the participation of Councilmember Hamlin.

JUSTIFICATION:

TPM No. 38164 and DR No. 21-7008 were presented to the Planning Commission at a duly noticed public hearing on October 19, 2021, and again on December 1, 2021. During the Planning Commission’s public hearings, Commissioners heard public testimony from dozens of Sun Lakes Village residents and others living in the vicinity of the Project and having an interest in the City’s determination regarding the proposed Project. Much of the public testimony centered around several core issues and concerns. A summary of these concerns is provided below:
• Public Notice
• Traffic/Circulation
• Air Quality
• Noise
• Lighting
• Building location
• Future Job Growth
• Golf Cart Access
• Sun Lakes Blvd. Extension
• Health Impacts
Included in Attachment 3 (Planning Commission Packet, December 1, 2021) is an Issues of Concern & Response Matrix, which provides clarification and technical back-up to support the City’s position on the topics of concern discussed during public comment.

PLANNING COMMISSION ACTION:

Upon conclusion of the public hearing, and considering all the evidence in the public record, the Planning Commission voted at the December 1, 2021, meeting to recommend approval of TPM No. 38164 and acted to approve DR No. 21-7008 by a vote of three Ayes and two Noes, with zero absent or abstaining.

A copy of the Planning Commission’s Resolution providing for its determinations and action is attached to this Report.

APPEALS OF THE PLANNING COMMISSION’S DECISION AND HEARING DATES:

Pursuant to Banning Municipal Code Section 17.68.100, three applications seeking to appeal the Planning Commission’s decision on the Project were received during the appeal period, following the Planning Commission’s action. The first appeal application received was from Golden State Environmental Justice Alliance and was rejected as being incomplete because it did not state the grounds or reasons for its appeal, did not request a specific action, and incorrectly described the Project.

A second appeal was filed by Supporters Alliance for Environmental Responsibility (SAFER). That 750
second appeal was later withdrawn on January 18, 2022, and SAFER subsequently announced its support for the Project. As a result, only the third appeal (Appeal) by PAG (Appellant) remains to be heard.

On January 11, 2022, the City Council received those appeals and set a joint hearing on TPM No. 38164 and DR No. 21-7008 for January 31, 2022. Notice of that hearing was published in the Record Gazette newspaper on January 21, 2022, and was mailed on January 20, 2022, to property owners within 1,000 feet of the Project site.

On January 25, 2022, at the request of both PAG and the Applicant, the City Council acted to postpone the City Council hearing on the Project from January 31, 2022, to February 17, 2022 at 5:00 p.m. Notice of the rescheduled public hearing was published in the Record Gazette newspaper on February 4, 2022, and mailed on February 3, 2022 to property owners within 1,000 feet of the Project site, providing 10 days’ notice of the rescheduled hearing date.

For this remand hearing before the City Council, notice of the public hearing was published in the Record Gazette newspaper on May 17, 2024, and mailed on May 30, 2024, 2024 to property owners within 1,000 feet of the Project site, providing 10 days’ notice of the hearing date.

The Project consists of applications for TPM No. 38164 and DR No. 21- 7008, and an Addendum/Consistency Determination pursuant to CEQA. The Project is located north of Sun Lakes Boulevard, east of Highland Springs Avenue, south of Interstate 10, and west of The Lakes Apartment Complex, and located in the Sun Lakes Village North Specific Plan area, as indicated in the attached exhibits.

TPM No. 38164:

TPM No. 38164, as shown in Figure 3 below, was submitted as part of the Project application review and proposes to subdivide the entire site (47-acres) into three (3) parcels. Parcel 1 will be approximately 6.9 acres in size and accommodate six (6) proposed retail/commercial buildings. Parcel 2 will be approximately 30.14 acres and the proposed industrial warehouse building. Parcel 3 is not intended for development at this time; however, it will share access with Parcel 2. Parcel 3 is approximately 9.96 acres in size and is labeled “Not A Part” (N.A.P.) of the Project. The City Engineer has determined that the proposed subdivision of the land is in conformity with the State Subdivision Map Act and the City’s Subdivision Ordinance, and that all the proposed lots will have adequate access to public streets, sanitary sewer lines, water mains, fire hydrants, drainage structures and utilities.

The court found that “Substantial evidence supported the City’s project approval findings,” which includes the City’s findings that “the tentative map and design review [are] consistent with the general plan and the specific plan amendment.”
DR No. 21-7008:

The proposed industrial warehouse building measures 619,959 sf, which includes 10,000 square feet of office space to be built on Parcel 2 of the Map, as indicated in Figure 4, Site Plan below. The Project also proposes six retail/commercial buildings totaling approximately 34,000 sf., ranging in size from 1,600 sf to 8,400 sf. Building 1 will include a coffee restaurant with a drive-thru and the remaining five (5) buildings are intended for sit-down restaurant-type uses and other commercial and services uses. The SLVNSP land use and zoning designation provides for Business and Warehouse, Office and Professional, and Retail and Service, consistent with the proposed uses on each parcel. All of the proposed uses are permitted by right by the SLVNSP.

The proposed industrial building and uses will be located as far away from residents to the extent possible. The building is separated by approximately 800 feet from the nearest Sun Lakes Country Club residence. The industrial building will be screened by eight-foot to fourteen-foot-high screening walls, landscaping, 24-foot-wide drive aisles, the six retail/restaurant buildings adjacent and along frontage of 751
Parcel 2. The Project is also screened by Sun Lakes Boulevard and median and parkway landscaping in the Sun Lakes Boulevard right-of-way.

The industrial warehouse building will be a contemporary styled concrete tilt-up building with painted and scored accents to provide shading interest. The elevations utilize a combination of materials and accents such as anodized aluminum windows and door frames with tempered glazing in a blue reflective color, metal canopies, and mullions.

The warehouse building will use Sherwin-Williams paint colors Extra White, with Gray Screen, Software, and Cyberspace for the main body of the building, and Heartthrob trim paint between the gray panels.

The metal canopies will be Pure White with clear anodized mullions to accent the building. The proposed 14’ concrete tilt-up walls will screen the truck yards and the colors will match the paint and color variations of the warehouse building.

The main colors of the retail buildings will be Sherwin-Williams Extra White with White Brick, Warm Brick, and Metal Siding accents and trim colors. Storefront aluminum windows and door frames will use a blue reflective window glazing. Pure White metal canopies with clear anodized mullions will provide exterior accents and shade for the buildings.

Landscaping:

The SLVNSP requires projects to provide a minimum of 15% of the site to be covered with landscaping.

Landscaping is provided along the parkway on Sun Lakes Boulevard, on the side and freeway setbacks adjacent to the property lines and buildings, and throughout the parking areas. The project proposes

39.7% of landscape coverage on Parcel 1 of TPM No. 38164 (the retail/restaurant parcel of the Project) and 16.23% of landscape coverage on Parcel 2 (the industrial site parcel of the Project). The existing median and parkway landscaping, in conjunction with the landscaping proposed for the commercial component, will effectively serve to buffer, and soften the prominence of the industrial warehouse building.

Streets/Circulation System:

The main access points for the Project are as follows:

Access points off Sun Lakes Blvd: 40' wide driveway (at cul-de-sac) & 46' driveway (divided by 6' median) & 40' wide shared driveway
Access points for retail: West side - 24' wide driveway off Sun Lakes Village Dr & East side - Two (2) 26' wide driveways off shared driveway
Access points for warehouse: West side- 29'-10" wide driveway off Sun Lakes Village Dr & East side- Three (3) driveways 24' wide, 29' wide, 40' wide off shared driveway There are 24-foot-wide emergency vehicle access roads provided around the south and north sides of the retail buildings, throughout the north and south truck courts, around the industrial building and through all the parking areas of the site.

ENVIRONMENTAL DETERMINATION:

The Project has been reviewed in connection with the requirements of CEQA (Pub. Resources Code, § 21000 et seq.) and the State CEQA Guidelines (14 C.C.R. § 15000 et seq.).

The EIR prepared for Amendment No. 5 to the SLVNSP analyzed the potential development of 877,298 square feet of industrial and warehouse uses, 52,065 square feet of medical office uses, and 37,189 square feet of retail uses. The EIR analyzed the potential environmental impacts from this type of 752
development in the areas of aesthetics, air quality, biological resources, cultural resources, energy, geology and soils, greenhouse gas emissions, hydrology and water quality, land use and planning, noise, transportation, tribal cultural resources, and utilities and service systems. The EIR concluded that Amendment No. 5 to the SLVNSP had the potential to result in a net increase of building square footage and that certain air quality, greenhouse gas emissions, and traffic impacts would be significant and unavoidable even after the imposition of mitigation and regulatory compliance. The Draft EIR was made available for review and comment from September 11, 2020, through October 26, 2020. A Notice of Availability was distributed to project stakeholders requesting to be notified, responsible and trustee agencies, and published in the Record Gazette newspaper. The Draft EIR and Amendment No. 5 were posted on the City’s website and at City Hall for viewing. Comments received on the Draft EIR and the City’s response to comments were incorporated in the Final EIR. After hearing all the facts in evidence, the City Council determined that the benefits of Amendment No. 5 outweighed the Amendment’s environmental impacts and adopted a Statement of Overriding Considerations on December 8, 2020.

The EIR was certified on December 8, 2020, and was never challenged. It is now final, beyond challenge, and conclusive in all respects.

Amendment No. 5 to the SLVNSP was adopted on December 8, 2020, by way of City Council Resolution No. 2020-141. Ordinance 1571 provides that there shall be a textual reference to Amendment. No. 5 to the SLVNSP included in the City’s Zoning Code portion of the Municipal Code. That Ordinance was introduced on December 8, 2020, adopted on January 12, 2021, and became effective on February 11, 2021. The Certified EIR was never challenged and is now final, beyond challenge, and in effect for all purposes.

The Project proposes a smaller development than that analyzed in the EIR. The Project proposes 619,959 sf of industrial uses, which is split between 75% (or 464,969 sf) of high-cube fulfillment center warehouse use and 25% (or 154,990 sf) of high-cube cold storage warehouse use, and 34,000 square feet of retail/commercial uses, along with the associated utility, parking, roadway, and landscaping improvements. The Project does not include development of any of the office uses analyzed in the EIR.

The mitigation measures imposed as part of the prior EIR remain valid and applicable to the Project and are identified in the Mitigation Monitoring and Reporting Program, Section 5, Pages 97 through 109 of the Banning Point/Sun Lakes Village North Specific Plan EIR Addendum/Consistency Checklist. The same benefits described in the Statement of Overriding Considerations for Amendment No. 5 to the SLVNSP remain applicable to the Project.

The prior EIR, which was a “Program EIR,” has been reviewed to determine if the Project is within the scope of what was analyzed in the EIR. Based on this review and analysis, an Addendum/Consistency checklist entitled “Banning Point Addendum to the Sun Lakes Village North Specific Plan Amendment No. 5 Environmental Impact Report” (updated version dated February 10, 2022) (“Addendum”), has been prepared pursuant to Public Resources Code Section 21166 and CEQA Guidelines Sections 15162, 15164, and 15168(c).

CEQA Guidelines Section 15164(a) provides that the lead agency “shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in Section 15162, calling for preparation of a subsequent EIR have occurred.” CEQA Guidelines Section 15164(c) further provides that an “addendum need not be circulated for public review but can be included in or attached to the final EIR” and CEQA Guidelines Section 15164(e) provides that a “brief explanation of the decision not to prepare a subsequent EIR pursuant to Section 15162 should be included” in the addendum, the agency’s findings, or elsewhere in the administrative record.

The Addendum evaluated the Project’s potential environmental effects, in light of those effects previously disclosed in the prior EIR, to determine whether any of the conditions described in CEQA Guidelines Section 15162 calling for subsequent CEQA review have occurred. 753
All environmental impacts of Amendment No. 5 to the SLVNSP (including those impacts related to the development of industrial and warehouse uses, and retail uses, such as those proposed by the Project) were analyzed, disclosed, and mitigated as set forth in the EIR (SCH# 2020029074) that was certified on December 8, 2020; this conclusion is supported by the detailed Addendum and its supporting technical reports and data. Therefore, any potential environmental impacts resulting from the types of land development proposed by the Project already have been analyzed and disclosed in the certified EIR that is now final in all respects and is beyond challenge. Furthermore, a subsequent EIR is not required as discussed below.

Public Resources Code Section 21166 and the corresponding CEQA Guidelines Section 15162 provide that no subsequent EIR shall be prepared for a project unless, on the basis of substantial evidence in the light of the whole record, “major revisions” of the EIR are needed to reflect (i) substantial changes to the project involving new significant environmental effects or a substantial increase in the severity of previously identified significant effects; (ii) substantial changes to the circumstances under which the project is undertaken involving new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or (iii) new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete, showing that the project will have one or more significant effects not discussed in the previous EIR, or significant effects previously examined will be substantially more severe than shown in the previous EIR, or mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative, or mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. At this point in the process, “in-depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired, and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process.” (Bowman v. City of Petaluma (2008) 185 Cal.App.3d 1065, 1073, 1074.) As a result, any issues with the earlier EIR that were raised or could have been raised are barred from further consideration. (Comm. for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 50).

No information has been presented to the City demonstrating that any of the criteria set forth in Public Resources Code Section 21166, or CEQA Guidelines Sections 15162 or 15163, are present. (1) No information has been presented to the City to demonstrate that any substantial changes have occurred with respect to the Project involving new significant environmental effects or a substantial increase in the severity of previously identified significant effects. Rather, the Project proposes the exactly the same type of land uses analyzed in the EIR and approved as part of Amendment No. 5 to the SLVNSP, only smaller in scope and footprint. The Project therefore serves to implement the vision for the commercial and industrial core of Highland Springs Avenue and the Interstate 10 freeway, which is described in detail within Amendment No. 5 to the SLVNSP and is consistent the land use envisioned in the SLVNSP and its accompanying EIR. Furthermore, the Addendum comprehensively analyzed the Project in comparison to the EIR in each environmental impact area and concluded that there are no new or substantially greater impacts than those previously disclosed, analyzed, and mitigated (to the extent feasible) in the EIR. City staff, acting as the Lead Agency, has independently reviewed the Addendum and finds that the Addendum, including its supporting technical reports, constitutes substantial evidence in support of this conclusion.
(2) No information has been presented to the City to demonstrate that any substantial changes have occurred with respect to the circumstances under which the Project is undertaken involving new significant environmental effects or a substantial increase in the severity of previously identified significant effects. The Project remains consistent with the project described in the prior EIR for Amendment No. 5 to the SLVNSP and is smaller in scope than the development anticipated in that 754
document and approved in Amendment No. 5 to the SLVNSP. There have been no changes to the SLVNSP area that would alter the ability of the Project to remain consistent with the SLVNSP and the environmental impacts analyzed in the prior EIR.
(3) No information has been presented to the City to demonstrate that there is any new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete showing that the Project will have any significant or more severe effects than those discussed in the prior EIR, or that additional mitigation measures or alternatives would substantially reduce any significant effects on the environment disclosed in the prior EIR. No information, let alone substantial evidence, has been presented to suggest that the current Project has environmental impacts beyond those previously analyzed, disclosed, and mitigated as set forth in the EIR. No information regarding any purported greater environmental impacts, or the need for additional mitigation or alternatives, has been presented.

The court concurred with these conclusions. As the court stated in its ruling, “There is no dispute but that the differences between the original project [that described in Amendment No. 5 to the SLVNSP] and the current version of the Project do not result in new significant environmental impacts. Indeed, the current version of the Project is significantly smaller than the original project.” The court thus found that “substantial evidence supported the City’s decision … to prepare an addendum instead of a supplemental or subsequent EIR for the Project.”
The City Staff finds, in the exercise of its independent judgment and based on substantial evidence in the whole of the record, that no further environmental review is required, including pursuant to Public Resources Code Section 21166, or CEQA Guidelines Sections 15162 or 15163 because (i) the Project will not have new or substantially more severe impacts than what was disclosed in the EIR; (ii) all applicable mitigation measures in the EIR remain applicable to the Project and are imposed on the Project as a condition of approval; and (iii) the Project will not require any new mitigation measures, all as documented in the Addendum. The Addendum and its supporting technical reports and memoranda constitute substantial evidence in support of this conclusion and the findings.

Multiple Species Habitat Conservation Plan (MSHCP).

The project is found to be consistent with the MSHCP. The project is located outside of any MSHCP criteria area and mitigation is provided through payment of the MSHCP Mitigation Fee.

RESPONSE TO APPELLANT’S LETTERS FROM DECEMBER 7, 2021, JANUARY 24, 2022, AND FEBRUARY 10, 2022:

On December 7, 2021, January 24, 2022, and February 10, 2022, the attorneys for the Pass Area Action Group (“Appellant”) submitted letters challenging the sufficiency of the 2020 Program EIR for use by the City in connection with approval of the proposed Project. Those Letters also made other assertions regarding accessibility of documents, public noticing, and issues related to the preparation of the 2020 Program EIR. Finally, the February 10, 2022, Letter asserted that certain councilmembers were biased in favor of the Project and should recuse themselves from decisions on the Project.

A. Adequacy and Sufficiency of the Program EIR for the Project is Documented in an addendum/Consistency Checklist Document and in CEQA Consultant’s Response to Comments.

The City caused an Addendum to be prepared which compared the potential impacts of the proposed Project to the project envisioned under the previously adopted the SLVNSP Amendment No. 5 and Certified Program EIR. The Addendum demonstrates that additional environmental review is not required for the Project beyond what was analyzed and disclosed in the now final EIR and in the Addendum. All environmental impacts of Amendment No. 5 to the SLVNSP (including those impacts related to the development of industrial and warehouse uses, and retail uses, such as those proposed by the Project) were analyzed, disclosed, and mitigated as set forth in the EIR (SCH# 2020029074) that was certified on December 8, 2020. This conclusion is supported by the detailed Addendum and its supporting technical reports and data. Therefore, any potential environmental impacts resulting from the types of land 755
development proposed by the Project already have been analyzed and disclosed in the certified EIR that is now final in all respects and is beyond challenge. In addition, the CEQA consultant responded to the Appellant’s comments on this issue, providing further support for the sufficiency of the Addendum. The court agreed that substantial evidence supported the City’s decision to proceed with an Addendum.

The court also expressly rejected PAG’s contention that the Sunset Crossings project constitutes a substantial change in the circumstances under which the Project is undertaken, or new information that has become available which could not have been known before, such that a subsequent EIR was required. As the court explained, the potential that the Sunset Crossing project might have significant impacts “is not substantial evidence that the proposed project’s incremental effects are cumulatively considerable. CEQA Guidelines § 15064(h)(4). Accordingly, the Court concludes that substantial evidence supported the City’s decision not to include cumulative impacts from the Project and Sunset Crossroads in the environmental documents for the Project and to prepare an addendum instead of a supplemental or subsequent EIR for the Project.”
B. Incorporation of The Sun Lakes Village North Specific Plan Amendment No. 5 into the Banning Municipal Code.

PAG’s letter also makes multiple statements which can be generally consolidated into three non-CEQA issues which are summarized below:

Appellant’s letter asserts that the City had not properly updated its Municipal Code to reflect inclusion of the Sun Lakes Village North Specific Plan Amendment No. 5 into the Code. Accordingly, the letter asserts that it has been impossible for the public to appropriately review the Project for consistency with the Sun Lakes Village North Specific Plan Amendment No. 5.

The Sun Lakes Village North Specific Plan Amendment No. 5 was adopted by Ordinance 1571. The Specific Plan Amendment was included in the agenda packet for the November 4, 2020, Planning Commission meeting and the December 8, 2020, City Council meeting. The agenda packets for those meetings, including the Draft Sun Lakes Village North Specific Plan Amendment No. 5, have been and are currently available on the City’s website on the page that provides those agendas and packets. In addition, Ordinance No. 1571, which approved the Specific Plan Amendment, is listed in the on-line Banning Municipal Code under Supplementary Ordinance Table with a link to the Ordinance.

Furthermore, a copy of the final approved version of the Specific Plan Amendment was provided to members of the public who made requests for the Specific Plan, including representatives of the Appellant, which provided the Appellants sufficient time to review the Specific Plan Amendment and to address the Project’s consistency with the Banning Municipal Code. A copy of the final adopted Sun Lakes Village North Specific Plan Amendment No. 5 is currently on file with the Banning City Clerk where is available for inspection by the public.

C. Public Notice for the December 2020 City Council Public Hearing on the Specific Plan Amendment Appellant’s letter also asserts that the City did not send out public hearing notices to property owners and residents within 300 feet of the Project site advising them of the Planning Commission and City Council public hearings on the Sun Lakes Village North Specific Plan Amendment No. 5 before that Amendment was adopted by the City Council on December 8, 2020. The letter attempts to reinforce this argument by pointing out that the City was unable to provide any certificate or affidavit from a staff person that the required public hearing notices were mailed out and that the residents of Sun Lakes do not recall having received notice.

City files contain a copy of the public hearing notice that was sent to property owners in advance of the November 4, 2020, Planning Commission meeting and the December 8, 2020, City Council meeting.

Also included in the City’s files is a copy of the mailing labels, which contain the names and addresses of all 108 property owners within 300 feet of the project, as required by the Banning Municipal Code and state law. Among the property owners to whom notices were sent, three of them were for properties owned by the Sun Lakes Country Club Homeowners Association and the single property owner of The 756
Lakes Apartment Complex, along with several individual property owners in the Sun Lakes Country Club neighborhood.

An Affidavit of Mailing is not legally required by state law and thus is not needed to comply with public noticing requirements. Moreover, the public hearing notices were advertised in the Record Gazette newspaper, a newspaper of general circulation in the City of Banning, published on October 23, 2020, for the Planning Commission hearing on November 4, 2020; and published on November 27, 2020, for the December 8, 2020, City Council meeting. Therefore, the City of Banning complied with state law and local ordinance to provide notice of the Sun Lakes Village North Specific Plan Amendment No. 5. Finally, no challenge was brought to those 2020 decisions regarding the Sun Lakes Village North Specific Plan Amendment No. 5 or the 2020 Program EIR. Pursuant to Section 15112 of the California Environmental Quality Act and CEQA Guidelines, the 180- day time to challenge the sufficiency of notice for the adoption of the Sun Lakes Village North Specific Plan Amendment No. 5 EIR has long since expired.

D. Notification to the SCAQMD and the California Air Resources Board when the 2020 Program EIR was Prepared
The Appellant asserts that the City should have provided notice to the South Coast Air Quality Management District (SCAQMD) and the California Air Resources Board (CARB) in connection with the consideration of this Project.

Notice was provided to both SCAQMD and CARB when the land uses considered for this Project were proposed as part of the Sun Lakes Village North Specific Plan Amendment No. 5. That occurred when the Notice of Preparation for the 2020 Program EIR was transmitted electronically to SCAQMD and was filed with the State Clearinghouse as required (SCH #2020029074), and through the State Clearinghouse, notices were provided to various resource and trustee agencies, including CARB and SCAQMD. In response to that Notice of Preparation, the SCAQMD provided a comment letter dated March 17, 2020, from Lijin Sun, J.D., Program Supervisor, CEQA IGR, Planning, Rule Development & Area Sources. Furthermore, SCAQMD received notice of the Draft EIR, through the State Clearinghouse, when advertised in October of 2020, and did not provide a reply or response to the city at any time during the 45-Day Notice of Availability (NOA)/Notice of Completion (NOC) timeframe. Because the City determined that the Project now under consideration is consistent with the project evaluated in the 2020 Program EIR, an Addendum was prepared indicating that no additional environmental review is required for this Project. Pursuant to the CEQA Guidelines, there is no obligation to circulate a draft Addendum to trustee agencies or to the public for public comment. Therefore, no new or special notice to SCAQMD or CARB is required in connection with the processing of the proposed Project.

E. Allegations of Bias by Certain Councilmembers
On February 10, 2022, the Appellant submitted a letter asserting that due to certain public comments made by councilmembers early in the process and before the matter was submitted to the City Council, that three councilmembers are biased in favor of the Project and should recuse themselves from decisions on the Project. As discussed above, the court issued a ruling finding only that the City did not provide a fair hearing based on the court’s conclusion that then-Councilmember Mary Hamlin was biased in favor of the Project. The court rejected all claims of bias as to Councilmember Wallace and Councilmember Sanchez, stating in its ruling that “their statements do not overcome the presumption that they are unbiased.”
ADDITIONAL PUBLIC COMMUNICATIONS:

The proposed Project was advertised in the Record Gazette newspaper on May 31, 2024. As of the date of this report, City staff had received several items of public communication for public hearings held before the Planning Commission on December 1, 2021, and before the City Council on February 17, 2022, which have been provided to the City Council under separate cover, and are attached to this staff report
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FISCAL IMPACT:

There is no fiscal impact associated with this action.

ALTERNATIVES:

1. Adopt Resolution 2024-88, as recommended.

2. Adopt Resolution 2024-88, with modifications.

3. Do not adopt Resolution 2024-88 and provide direction to staff.

ATTACHMENTS:

1. Resolution 2024-88, Banning Point.docx

2. Exhibit A - Conditions of Approval.docx

3. PAAG Appeal Letter.pdf

4. December 1 2021 Regular Planning Commission Meeting.pdf

5. TPM 38164.pdf

6. DR 21-7008 Plans.pdf

7. Addendum Consistency Checklist.pdf

8. Approved PC Minutes October 19, 2021.pdf

9. December 1, 2021 PC Meeting Minutes.pdf

10. PC Resolution 2021-16.pdf

11. February 17, 2022 Special CC Meeting Minutes.pdf

12. 240409 Judgment Grant Peremptory Writ of Mandate SLH.pdf

13. Public Comment Correspondence.pdf

14. 10.19.2021 PC PHN.pdf

15. 12.01.2021 PC PHN.pdf

16. Public Hearing Notice - 06/11/2024
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Resolution 2024-88

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Banning City CouncilJune 11, 2024

Banning City Council
June 11, 2024