RESOLUTION 2024-176
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,
ACCEPTING COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) FUNDS FOR FISCAL YEAR 2024/2025 IN THE AMOUNT OF $159,408 FOR THE BANNING SENIOR CENTER (5.BN.61-24) IN THE AMOUNT OF $43,144; DYSART PARK IMPROVEMENT PROJECT (5.BN.62-24) IN THE AMOUNT OF $105,000; AND THE BANNING PEACE CENTER FOOD PROGRAM IN THE AMOUNT OF $11,264, AND RESCINDING RESOLUTION 2024-159 WHEREAS, THE City of Banning has been submitting applications for projects/activities under the Community Development Block Grant (CDBG) program to the Riverside County Housing and Workforce Solutions (HWS) annually; and
WHEREAS, the submittal of the approved project applications for CDBG 2024/2025 program funding was approved by the City Council on October 24, 2023 under Resolution 2023- 171; and
WHEREAS, the projects submitted herein meet the CDBG program guidelines and/or requirements; and
WHEREAS, it is necessary that the supplemental agreement be approved by the City Council through resolution in order for the City and its residents to obtain and utilize the federally funded CDBG grant funds.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
SECTION 1. The City Council approves the Supplemental Agreement with Riverside County Housing and Workforce Solutions for the Community Development Block Grant FY 2024/2025 for a one-year term in an amount of $159,408.
SECTION 2. The City Council authorizes the mayor to execute the Supplemental Agreement with Riverside County Housing and Workforce Solutions on behalf of the City Council and the City Manager to make non-substantive changes to the Community Development Block Grant FY 2024/2025 if necessary, in the future.
SECTION 3. The City Council authorizes the City Manager, or designee, to make necessary budget adjustments, appropriations, and transfers related to this resolution.
SECTION 4. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions.
PASSED, APPROVED AND ADOPTED this 12th day of November 2024.
Alberto Sanchez, Mayor
City of Banning
355
Resolution 2024-176
ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:
Serita R. Young, City Attorney
Richards, Watson & Gershon
356
Resolution 2024-176
CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-176, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 12th day of November 2024 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
357
Resolution 2024-176
EXHIBIT A
CDBG Supplemental Agreement for FY 2024-25
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CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Lincoln Bogard, Administrative Services Director MEETING DATE: November 12, 2024
SUBJECT: Consideration of Resolution 2024-177, Approving a Successor Memorandum of Understanding (MOU) with the International Brotherhood of Electrical Workers (IBEW) Local 47 Representing the Utility Unit Employees, Effective July 1, 2024 through December 31, 2026, and Authorizing the City Manager to Finalize and Execute a Successor Agreement
RECOMMENDATION:
Adopt Resolution 2024-177.
BACKGROUND:
City Council has previously approved a Tentative Agreement (TA) with IBEW Utility Unit for the bargaining period of July 1, 2024, through December 31, 2026 in closed session. The Utility Unit met and ratified that successor Tentative Agreement and now Council is requested to accept the resulting Memorandum of Understanding (MOU).
JUSTIFICATION:
The City Council must ratify the MOU to allow for execution by the City Manager. The signature page of the Union signed MOU will be provided to Council and the public at the City Council Meeting.
FISCAL IMPACT:
The fiscal impact was discussed with City Council in closed session.
ALTERNATIVES:
Do not adopt Resolution 2024-177 and provide staff alternate direction.
BUDGETED?:
No
CONTRACT/AGREEMENT:
Yes
ATTACHMENTS:
1. Resolution 2024-177, IBEW Utility MOU.docx
2. 10.29.24 IBEW UTILITY MOU 2024-2026 (PDF).pdf
417
Resolution 2024-177
RESOLUTION 2024-177
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,
APPROVING A SUCCESSOR MEMORANDUM OF UNDERSTANDING (MOU) WITH THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (IBEW) LOCAL 47 REPRESENTING THE UTILITY UNIT EMPLOYEES, EFFECTIVE JULY 1, 2024 THROUGH DECEMBER 31, 2026, AND AUTHORIZING THE CITY MANAGER TO FINALIZE AND
EXECUTE A SUCCESSOR AGREEMENT
WHEREAS, the City of Banning ("City") has formally recognized the International Brotherhood of Electrical Workers Local 47 ("IBEW') as the exclusive employee organization for the Utility Unit employees bargaining unit; and
WHEREAS, the prior Memorandum of Understanding ("MOU") between the City and the IBEW expired on June 30, 2024; and
WHEREAS, the City labor representatives and IBEW representatives have successfully met, conferred and signed a Tentative Agreement on the deal points for a successor MOU for the period of July 1, 2024, through December 31, 2026, pursuant to the Meyers-Milias-Brown Act (MMBA) (Gov. Code §§ 3500-3511) and the City's Employer-Employee Relations Resolution 2010-45; and
WHEREAS, MMBA Section 3505.1 states: "If a tentative agreement is reached by the authorized representatives of the public agency and a recognized employee organization or recognized employee organizations, the governing body shall vote to accept or reject the tentative agreement within 30 days of the date it is first considered at a duly noticed public meeting. A decision by the governing body to reject the tentative agreement shall not bar the filing of a charge of unfair practice for failure to meet and confer in good faith. If the governing body adopts the tentative agreement, the parties shall jointly prepare a written memorandum of understanding."; and
WHEREAS, the IBEW membership has ratified the Tentative Agreement for a successor MOU, where once approved by the governing body and the resulting final MOU is signed by the City Manager and IBEW representatives becomes a binding agreement.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
SECTION 1. The City Council hereby approves the Successor MOU between the City and IBEW (Local 47) representing the Utility Unit Employees, for the period of July 1, 2024, through December 31, 2026, attached hereto as Exhibit A.
SECTION 2. The City Council hereby authorizes and directs the City Manager, or his designee, to finalize and execute the Successor MOU, based on the approved Tentative Agreements, 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. 418
Resolution 2024-177
PASSED, APPROVED AND ADOPTED this 12th day of November 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
419
Resolution 2024-177
CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-177, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 12th day of November 2024 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
420
Resolution 2024-177
EXHIBIT A
IBEW-Utility Unit MOU for 2024-2026
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1 12645834.1 BA060-057
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS
LOCAL 47
UTILITY UNIT
(IBEW – UTILITY)
MEMORANDUM OF
UNDERSTANDING
July 1, 2024 – December 31,
2026
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2 TABLE OF CONTENTS
ARTICLE 1 – PREAMBLE ............................................................................................. 4 ARTICLE 2 - CONTINUATION OF RULES & POLICIES .............................................. 5 ARTICLE 3 - EMPLOYEE RIGHTS ................................................................................ 6 ARTICLE 4 - MANAGEMENT RIGHTS.......................................................................... 7 ARTICLE 5 - PROBATIONARY PERIOD ...................................................................... 7 ARTICLE 6 - DUES DEDUCTION; AGENCY SHOP ..................................................... 8 ARTICLE 7 -UNION REPRESENTATIVES .................................................................... 9 ARTICLE 8 -BULLETIN BOARDS ............................................................................... 10 ARTICLE 9 - MEMORANDUM OF UNDERSTANDING COPIES ................................ 10 ARTICLE 10 - MEETINGS ........................................................................................... 10 ARTICLE 11 -HOURS OF WORK ................................................................................ 11 ARTICLE 12 -LIGHT DUTY .......................................................................................... 11 ARTICLE 13 - REST PERIOD ...................................................................................... 12 ARTICLE 14- SALARIES, PERFORMANCE EVALUATIONS .................................... 13 ARTICLE 15 -OVERTIME, ON-CALL PAY .................................................................. 19 ARTICLE 16 - TEMPORARY UPGRADE PAY AND PROMOTION PAY .................... 22 ARTICLE 17 - PAY FOR JURY DUTY & COURT APPEARANCES ........................... 23 ARTICLE 18 - SAFETY, EQUIPMENT AND TRAINING .............................................. 23 ARTICLE 19 - MILEAGE, MEALS AND OTHER REIMBURSEMENT......................... 24 ARTICLE 20 - TUITION REIMBURSEMENT: EDUCATION INCENTIVE .................... 25 ARTICLE 21 - SICK AND BEREAVEMENT LEAVE ................................................... 27 ARTICLE 22 - VACATION AND HOLIDAY ACCRUALS............................................. 29 ARTICLE 23 - MEDICAL AND DENTAL INSURANCE ............................................... 32 ARTICLE 24 - RETIREMENT AND MEDICARE .......................................................... 35 ARTICLE 25 - MISCELLANEOUS BENEFITS ............................................................ 36 ARTICLE 26 - IBEW – Local 47 RETIREE MEDICAL FUND ...................................... 37 ARTICLE 27 - LAYOFFS AND RE-EMPLOYMENT .................................................... 37 ARTICLE 28 - GRIEVANCE PROCEDURE ................................................................. 39 ARTICLE 29 – ADMINISTRATIVE LEAVE .................................................................. 41 ARTICLE 30 - SEVERABILITY CLAUSE .................................................................... 41 ARTICLE 31 - COMPLETE AGREEMENT .................................................................. 41 ARTICLE 32 - POSTING JOB VACANCIES ................................................................ 42 423
3 ARTICLE 33 - RE-OPENERS ...................................................................................... 42 ARTICLE 34 – RATIFICATION AND EXECUTION ..................................................... 42 424
4 MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF BANNING AND THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS - LOCAL 47
REPRESENTING THE METER READING, ELECTRIC AND WATER UTILITY EMPLOYEES UNIT FOR THE PERIOD JULY 1, 2024 THROUGH DECEMBER 31, 2026
ARTICLE 1 – PREAMBLE
1.1 This Memorandum of Understanding (hereinafter the “MOU”) is entered into between the City of Banning, a Municipal Corporation (hereinafter known as the "CITY"), and the authorized representatives of the International Brotherhood of Electrical Workers - Local 47 (hereinafter "IBEW-Local 47”), as the recognized employee organization for the Meter Reading, Electric and Water Utility Employees Unit of representation (hereinafter the “Unit”), relative to wages, hours, and other terms and conditions of employment as provided by Sections 3500 - 3510 of the California Government Code, otherwise known as the Meyers Milias-Brown Act.
1.2 Recognition. The City continues to recognize IBEW-Local 47 as the only Recognized Employee Organization representing full time, permanent employees presently in the Unit or hereafter employed by the City and eligible for inclusion in the Unit. All included provisions of this MOU apply only to employees who are covered by the MOU. It is understood that this MOU shall constitute a bar to any petition or request for recognition of any representational unit which includes classifications of employees covered by this MOU or such petitions to represent such employees at any time during the term hereof.
This provision shall not preclude employees from exercising their rights as may be provided by the Meyers-Milias-Brown Act or the Employer-Employee Relations Resolution of the City.
1.3 Term. Except as otherwise provided herein, this MOU between the City and IBEWLocal 47 relative to wages, hours, and other terms and conditions of employment shall become effective upon approval by City Council and thereafter shall remain in full force until its term expires at close of business on December 31, 2026, except that if no successor MOU has been negotiated and approved by December 31, 2026, then this MOU shall extend and not be terminated until such time as a successor MOU is approved by City Council or City Council unilaterally implements its last, best and final offer after impasse procedures have been followed, whichever occurs first.
1.4 Represented Classifications. This MOU covers employees in the following classifications:
Apprentice Meter Test Technician
Assistant Water Superintendent
Auto Cad/GIS Technician
Certified Powerline Technician
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5 Electrical Service Planner
Electric Planning Supervisor
Electric Services Worker
Field Service Representative
Lead Field Service Representative
Meter Test Technician
Operations System Technician
Powerline Apprentice
Powerline Crew Superintendent
Powerline Crew Supervisor
Powerline Technician
Public Benefits Coordinator
Senior Electric Distribution System Designer
Senior Electric Services Planner
Substation Test Technician
Utility Service Assistant
Utility Engineering Services Assistant
Warehouse Services Specialist
Warehouse Specialist Water/Wastewater
Wastewater Collection Systems Specialist/Lead
Wastewater Collection Systems Technician I
Wastewater Collection Systems Technician II
Wastewater Collection Systems Technician III
Wastewater Collection Systems Supervisor
Water Crew Supervisor - Production
Water Crew Supervisor - Distribution
Water Production Operator I
Water Production Operator II
Water Production Operator III
Water Production Operator Lead
Water Service Worker I
Water Service Worker II
Water Service Worker III
Water Services Crew Lead
ARTICLE 2 - CONTINUATION OF RULES & POLICIES
2.1 Other Written Policies. It is understood and agreed that all such written ordinances, policies, resolutions, rules and regulations, including, but not limited to, the Personnel Rules and Regulations of the City, the Employer-Employee Relations Resolution (Resolution No. 2010-45); and the Administrative Manual of the City shall remain in effect during the course of this MOU, subject to amendment or deletions as otherwise provided herein.
2.2 Past Practice. For purposes of this MOU, "past practice" shall be defined as an unwritten policy, procedure or work rule of the City affecting wages, hours or conditions 426
6 of employment, upon which the City and members of the Unit have come to rely through a course of conduct and which is not inconsistent with the express terms and conditions of this MOU. As of the effective date of this MOU, all past practices preexisting this MOU shall be deemed to be void and of no further force and effect.
2.3 Meet and Confer. The City and IBEW-Local 47 agree to meet and confer during the term of this MOU over the adoption, amendment or revision, including repeal, of City ordinances, resolutions, rules and regulations, including but not limited. to, the City's Personnel Rules and Regulations, the Employer-Employee Relations Resolution (Resolution No. 2010-45) and the Administrative Policies of the City, to the extent that such documents contain mandatory subjects of bargaining pursuant to the MeyersMilias-Brown Act. Should an impasse be reached following such meet and confer sessions, the provisions of the Employer- Employee Relations Resolution (Resolution No. 2010-45) and state law will apply.
ARTICLE 3 - EMPLOYEE RIGHTS
3.1 Non-Discrimination. The provisions of this MOU shall apply to all persons covered by this MOU without discrimination on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, pregnancy, childbirth, gender, gender identity, gender expression, age, sexual orientation, citizenship status or any other basis protected by applicable law, nor will there be any discrimination with respect to hiring, retention or any condition of employment because of membership or activities on behalf of the IBEW-Local 47.
3.2 Employee Organization Membership. IBEW-Local 47 will accept into membership all eligible persons of the bargaining unit without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, pregnancy, childbirth, gender, gender identity, gender expression, age, sexual orientation, citizenship status or any other basis protected by applicable.
3.3 Rights Granted By State and Federal Law. Except as otherwise provided in this MOU, the employees covered by this MOU shall have all rights which may be exercised in accordance with state and federal law, and applicable ordinances, resolutions, rules and regulations. However, employees covered by this MOU shall not have the right to file a grievance for violation of any such law, ordinance, resolution or rule, except as specifically set forth herein at Article 28.
3.4 Additional Employee Rights. Employees shall also have:
(a) The right to form, join, and participate in activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations.
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7 (b) The right to refuse to join or participate in the activities of employee organizations.
(c) The right to be free from interference, intimidation, restraint, coercion, discrimination, or reprisal by other employees, employee organizations, management or supervisors, as a result of their exercise of rights indicated in (a) and (b) above.
ARTICLE 4 - MANAGEMENT RIGHTS
4.1 City Authority & Management Prerogative. IBEW-Local 47 recognizes and agrees that, except as limited by this MOU, the City and its representatives have the responsibility and the authority to manage and direct all operations and activities of the City including, but not limited to, the exclusive right to determine the mission of its constituent departments, commissions and boards and the processes and the materials to be employed; the right to subcontract any work or operation; to expand or diminish services; to determine the procedures and standards of selection for employment and promotion; determine classifications; direct its employees; take disciplinary action; relieve its employees of duty because of lack of work or for other legitimate reasons; maintain the efficiency of governmental operations; determine the methods, means and personnel by which government operations are to be conducted and to assign work to employees and to establish and change work schedules and assignments and to determine the days and hours when the employees shall work; take all necessary actions to carry out its mission in emergencies; and exercise complete control and discretion over its organization and work performance technology.
4.1.1 When the decision to make the change is non-negotiable, but the effects of the decision are negotiable, the duty to provide notice and an opportunity to bargain arises at the time the decision is made and prior to taking action to implement the decision.
4.2 Subcontracting. At no time shall the City subcontract work that was previously completed by IBEW-Local 47 Represented employees whose services have been terminated without prior notification to meet and confer with the IBEW-Local 47 representative.
4.3 Volunteers. The City agrees that volunteers shall not be used to fill positions or replace work previously performed by terminated or laid off Unit members except on a temporary basis during the recruitment process for a Unit classification for which the Unit member resigned or was terminated for reasons other than layoff.
ARTICLE 5 - PROBATIONARY PERIOD
5.1 Probation Period. All employees appointed to a position represented by IBEW Local 47 shall serve a twelve (12) month probationary period. The probationary period shall be considered a part of the examination and selection process and shall not include any 428
8 time served under any limited service or provisional appointment but shall start from the time of appointment to a regular position. After serving six (6) months in the probationary period, the employee shall be eligible for a six-month merit increase based upon a satisfactory performance evaluation. This will be the employee's new anniversary date for future performance evaluations/merit increases. Employees will pass probation at the end of the probation period upon a satisfactory performance evaluation, or shall pass probation if employee's supervisor does not provide the performance evaluation on time.
5.2 Probation Period for Promotions. Represented employees who have previously successfully completed a probationary period and who are subsequently promoted, shall serve a six (6) month probationary period in the new position. At the conclusion of the probationary period, upon a satisfactory performance evaluation, employees shall pass probation and receive a salary increase of two (2) steps, or shall pass probation and receive the pay increase if employee’s supervisor does not provide the performance evaluation on time. This will be the employee's new anniversary date for future performance evaluations/merit increases.
5.3 Probation Period Extension. Probation Period on an employee’s initial probation can be extended if necessary, for a period not to exceed six (6) months. If extended, such action must be extended during initial probation period. Any extended period of absence from duty of four continuous weeks (2 pay periods) or more for any reason except scheduled vacation, will automatically cause a probation period to be extended equal to the period of absence.
ARTICLE 6 - DUES DEDUCTION; AGENCY SHOP
6.1 Dues Deduction. The Union may have the regular dues of its bargaining unit members deducted from paychecks under the following procedures:
6.2 Sufficient Earnings. The employee's earnings must be sufficient after other legal and required deductions are made to cover the amount of the IBEW – Local 47 dues deduction authorized. When an employee is in a non-pay status for an entire pay period, no withholding will be made to cover that pay period from future earnings.
6.3 Non-Pay Status. In the case of an employee who is in a non-pay status during only part of the pay period, and the salary is not sufficient to cover the full withholding, no deduction shall be made. In this connection, all other legal and required deductions have priority over IBEW – Local 47 dues.
6.4 Dues Authorization. The Union is solely responsible for distributing to, and collection from, employees the dues deduction authorization forms. Union shall notify the City in writing of any employee who hereinafter comes into the bargaining unit and who has provided appropriate written authorization to the Union. The City shall deduct the approved bi-weekly membership dues and voluntary deductions in the pay period following receiving written notification from the Union. 429
9 6.5 Dues Cancellation. An employee's authorization for payroll deduction of IBEW – Local 47 dues may be cancelled at any time by written notice from the employee to IBEW-Local 47, and employee may pay dues directly to IBEW-Local 47. An employee's deduction authorization shall automatically be cancelled if the employee leaves the employ of the City or is transferred to a position not within the Unit. Union shall advise the City in writing of the membership dues and voluntary deductions to be deducted for each member. Union shall notify the City in writing of any changes to employee deductions thirty (30) days prior to the effective date of such change. The Union shall, as soon as possible, notify the City in writing if any member of the bargaining unit revokes a membership dues and voluntary deduction authorization.
6.6 Funds Transmission. The aggregate amount of IBEW – Local 47 dues deductions by the City shall be transmitted monthly to the Business Manager/Financial Secretary of IBEW – Local 47. The City shall provide the Business Manager/Financial Secretary with a list each month indicating the dues deducted from the pay of any Unit member and those employees for whom no deduction was made pursuant to the provisions of Sections 6.2 and 6.3.
6.7 Indemnification. IBEW – Local 47 shall indemnify, defend, and hold the City harmless against any claims made, and against any suit instituted against the City arising from this Article, including on account of employee authorizations, revocations, deductions made, cancelled, or changed in reliance on the Union’s representations regarding employee dues and voluntary deduction authorizations. In addition, Union shall refund to the City any amounts paid to it in error upon presentation of supporting evidence.
ARTICLE 7 -UNION REPRESENTATIVES
7.1 Meetings. Two (2) employees selected by IBEW – Local 47 may attend scheduled meetings with City management during regular hours without loss of pay, provided that such employees shall not leave their work station or assignment without first securing approval of their Department Head twenty-four (24) hours in advance. Such meetings shall be scheduled in a manner consistent with the City's operating requirements and work schedules. Nothing herein shall be deemed to preclude the scheduling of such meetings at hours other than such employee's regular working hours, in which event attendance shall be without pay.
7.2 Leave For IBEW – Local 47 Business. Upon not less than seven (7) calendar days' notice, City may grant a leave of absence for IBEW – Local 47 business to not more than three (3) employee(s) designated by IBEW – Local 47. Such leave shall not be denied without legitimate reason. Such leave shall be without pay, but will not be considered a break in continuous service with the City. The total amount of all such leaves taken pursuant to this section shall not exceed ten (10) days in any calendar year, per employee.
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10 7.3 Notification of Representatives. IBEW – Local 47 shall notify the Human Resources Department of the name(s) of Stewards as such individuals are appointed by IBEW – Local 47 from time to time.
ARTICLE 8 -BULLETIN BOARDS
8.1 Authorized Postings. The City will continue to provide adequate bulletin board space where currently available. Only areas designated by the Department Head may be used for posting notices. Bulletin boards may be used for the following notices:
(a) scheduled IBEW – Local 47 meetings, agenda and minutes.
(b) information on IBEW – Local 47 elections and the results.
(c) IBEW – Local 47 special, recreational, credit union and related bulletins.
(d) reports of IBEW – Local 47 official business including reports of committees or the executive board of IBEW – Local 47.
(e) MOU, pay scales, job announcements, promotion lists, etc.
(f) such other items as may be approved by the Department Head or his/her designee upon request of IBEW – Local 47.
8.2 Posted Notices. Posted notices shall not be defamatory or violate any of the City's policies, nor shall they advocate election or defeat of candidates for public office. All notices to be posted shall be dated and signed by an authorized representative of IBEW – Local 47. IBEW – Local 47 may give notices to the represented employees through use of the City mail system and/or the City computer e-mail system.
ARTICLE 9 - MEMORANDUM OF UNDERSTANDING COPIES
9.1 After it has been executed by the parties, the City shall provide IBEW – Local 47 with seven (7) originals and one (1) copy of an electronic (PDF) version of this MOU.
IBEW – Local 47 shall be responsible for providing copies of this MOU to represented employees at IBEW – Local 47 expense. City shall also provide a copy of the executed MOU to any represented employee hired or promoted into the represented Unit after the effective date of the MOU. The City may charge for any additional copies.
ARTICLE 10 - MEETINGS
10.1 Items of Mutual Concern. Upon mutual agreement of both the City and IBEW – Local 47, the parties may meet to discuss items of mutual concern. A meeting conducted under this section shall not constitute a meet and confer or hearing under any grievance procedure.
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11 10.2 Use of City Facilities. IBEW – Local 47 may be granted permission to use City facilities for the purpose of meeting with employees to conduct its internal affairs provided space for such meetings can be made available without interfering with City needs. Permission to use facilities must be obtained by IBEW – Local 47 from the Department Head. IBEW – Local 47 shall be held fully responsible for any damages to and security of any facility that is used by IBEW – Local 47.
10.3 Budget Oversight Committee. The City agrees to continue the Budget Oversight Committee, with IBEW – Local 47 entitled to appoint one (1) member. Said Committee shall have an equal number of members appointed by the City's recognized employee organizations. Said Committee shall be advisory only to the City Manager. The City shall determine the necessity of such meetings, and shall notify the appointed member of the scheduled Budget and Finance Committee meeting held to discuss the annual proposed budget and the mid-year proposed budget adjustments.
ARTICLE 11 -HOURS OF WORK
11.1 Work Schedules. The parties agree that the City has the right to return to its traditional five day eight hour per work day (5/8) work week schedule, maintain its current four day ten hour per work day (4/10) work week schedule, or implement a nine day every two work week eighty hour (9/80) work schedule for some or all IBEW – Local 47 represented employees as appropriate in the sole discretion of the City as determined by each Department Head and with City Manager approval. IBEW – Local 47 represented employees employed by the City as of January 1, 2025 working alternative work schedules as of January 1, 2025 who are required to return to working the traditional five day eight hour per work day (5/8) work week schedule shall receive an additional three percent (3%) base salary wage increase for the time period that they are required to work that particular traditional work schedule.
For Employees working a (9/80) work schedule, the work period shall begin four hours after the start time of his or her eight hour shift on the day that corresponds with the employee’s alternating regular day off such that the employee works four, nine-hour shifts and one four-hour shift each seven-day work period. Employees working a traditional five day eight hour per work day (5/8) work week schedule or four day ten hour per work day (4/10) work week schedule will continue to maintain a week ending time of 11:59 pm on Sundays.
11.2 Notice of Changes. The City shall provide at least two weeks (14 calendar days) notice of a change in work schedules.
ARTICLE 12 -LIGHT DUTY
12.1 Accommodation. The parties agree that the City may assign employees who are unable to perform the full scope of their current job to temporary modified work consistent with the employee's functional limitations as described by his/her doctor when and where such work is available as determined by the City and where it may be 432
12 accommodated without adverse consequences to the City or disruption in services or operations. This Article does not create in any employee entitlement to assignment in a light duty position.
12.2 Eligibility. Temporary modified work will be considered on a case-by-case basis.
Temporary modified work may involve modification of an employee's current job or assignment to work outside of an employee's current position. The Human Resources Department, in consultation with the Department Head, will determine eligibility for participation in the Temporary Modified Assignment Program and will coordinate temporary work positions/assignments.
12.3 Employee Cooperation. It shall be the duty of every employee to cooperate fully and promptly with the coordination of temporary/modified work assignments. Notification of changes in restrictions/limitation shall be promptly communicated to the Human Resources Department along with supportive documentation, acceptable to the City. In administering the Temporary Modified Assignment Program, the Human Resources Department may communicate directly with the employee's physician(s) regarding the employee's medical limitations, functional restrictions, job requirements in the employee's regular assignment, job requirements in any modified duty assignment under consideration and return to work status. Such communication will only be done with the employee's written authorization. Human Resources Department will consult with the employee’s Department Head regarding possible modified duty assignments under consideration.
12.4 Retention of Benefits. Employees participating in the Temporary Modified Assignment Program shall retain all contractual benefits, except pay scale, not inconsistent with the objectives of the Temporary Modified Assignment Program. The City may change regular days off and work hours while the employee is in the Temporary Modified Assignment Program.
12.5 Right to Decline. However, employees retain the right to decline any initial or subsequent assignment provided by the Temporary Modified Assignment Program.
ARTICLE 13 - REST PERIOD
13.1 Rest Period. Represented employees who work 16 (sixteen) consecutive hours shall earn a ten (10) hour rest period.
(a) A rest period of ten (10) consecutive hours or more shall be considered an interruption of consecutive hours worked.
(b) A rest period of less than ten (10) consecutive hours shall be counted as time worked but not paid.
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13 (c) Represented employees shall be compensated at their regular rate of pay for all regularly scheduled work time that falls while that employee is on his/her earned rest period.
(d) Represented employees required to return to work during an earned rest period, shall be compensated at the overtime rate of pay for all time worked. This overtime pay shall be in lieu of, and not in addition to, the regular rate of pay. Employees not required by management to return to work, but who choose to take less than a ten (10) hour rest period, shall be paid their regular hourly rate of pay for all regularly scheduled work hours.
(e) Time paid for meals not taken shall not count toward earning a rest period.
A paid meal time taken shall count toward earning a rest period.
(f) When the rest period extends into a regularly scheduled work day, the employee may elect to use vacation time, compensatory time, floating holiday time or leave without pay for the rest of the day.
(g) For the purpose of rest period eligibility, on any day that is not a regularly scheduled workday (including holidays) the hours that fall within the times of the employees’ normally scheduled work shift, had it been a regular work day, will be counted as time worked.
ARTICLE 14- SALARIES, PERFORMANCE EVALUATIONS
14.1 Wage Increases/Performance Evaluations.
(a) Effective upon the first full pay period following City Council approval of the new MOU, there shall be a cost of living adjustment increase of salary of 2%.
(b) Effective the first full pay period following January 1, 2025, there shall be a cost of living adjustment increase of salary that would be equal to the percentage change in CPI year over year from November 2023 to November 2024 for the Riverside-San Bernardino-Ontario CPI-U region as published by the U.S. Bureau of Labor Statistics up to a maximum of 4.0% (i.e. CPI percentage up to 4.0%) should the percentage change in CPI be above 2.0%. Should the percentage change in CPI be below 2.0%, then the cost of living adjustment increase of salary would be 2.0%. (c) Effective the first full pay period following January 1, 2026, there shall be a cost of living adjustment increase of salary that would be equal to the percentage change in CPI year over year from November 2024 to November 2025 for the Riverside-San Bernardino-Ontario CPI-U region as published by the U.S. Bureau of Labor Statistics up to a maximum of 4.0% (i.e. CPI percentage up to 4.0%) should the percentage change in CPI be above 2.0%. Should the percentage change in CPI be below 2.0%, then the cost of living adjustment increase of salary would be 2.0%. 434
14 Ranges with defined steps are shown on the salary schedules provided herewith. The salary tables are calibrated in approximate 2.5% increments. Annual increase for satisfactory performance will be two (2) steps or approximately 5%. Department Heads will have the option of granting a higher salary increase based on exceptional performance, with approval of the City Manager. Unit members are evaluated using an employee performance evaluation form.
(a) Employee shall be granted a step increase upon receiving a satisfactory overall evaluation on the City approved employee evaluation form OR such step increase will be automatically implemented if employee's supervisor is thirty (30) days late on giving such evaluation, retroactive to the due date of the evaluation.
(b) A first denial of a step increase shall not be an allowable subject of the exercise of employee rights under the grievance procedure outlined herein. However, an employee may upon request have such first denial reviewed by the Employee Relations Officer. Employee shall have the right to request a hearing with the Employee Relations Officer and to have a representative of his/her choice present. The decision of the Employee Relations Officer shall be final at this stage.
(c) An employee denied a step increase shall thereafter have monthly meetings to review his/her performance with his/her supervisor and shall have the City approved employee evaluation form completed no later than six months after the date of the performance evaluation which led to the denial of the step increase. If the employee’s overall performance is rated satisfactory, then the employee shall be granted the appropriate step increase effective the first pay period following the six month re-evaluation period. Such step increase shall not be retroactive.
(d) If the employee’s performance continues to be unsatisfactory after the six month re-evaluation period, the employee shall be given a final denial of step increase for the remainder of the regular evaluation period. After this final denial the monthly meetings to review his/her performance with his/her supervisor shall continue until the employee’s next annual review.
Denial of a step increase under this subsection shall be subject to review by an Evaluation Review Committee. The Evaluation Review Committee shall be comprised of the Employee Relations Officer, a non-evaluating Department Head selected by the employee, and an IBEW – Local 47 business representative. The Evaluation Review Committee shall make any adjustment to the evaluation that it deems justified by majority vote and its decision shall be final with no other right of appeal or grievance on the matter.
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15 (e) An employee at the top of his or her range shall have his or her performance evaluated at least annually within thirty (30) days of her/her anniversary date.
ELECTRIC:
CLASSIFICATION
ADJUSTED
SALARY
RANGE
LADDER/STRUCTURE
Powerline Crew
Superintendent U90 2 ranges or 5% above Powerline Crew Supervisor Electric Planning Supervisor U88 2 ranges or 5% above Senior Electric Service Planner
Powerline Crew Supervisor U88 /
Step 13
4 ranges or 10% above Certified
Powerline Technician
Operations System
Technician
U86 /
Step 13
4 ranges or 10% above
Substation Test Technician
Senior Electric Service
Planner U86 2 ranges or 5% above Electric Service Planner Electric Service Planner U84 2 ranges or 5% above Powerline Technician
Certified Powerline Technician U84 /
Step 13 Rubber Glove Certified
Powerline Technician U82 /
Step 13 Benchmark Position
Electric Meter Test Technician U82 /
Step 13 Equal to Powerline Technician
Substation Test Technician U82 /
Step 13 Equal to Powerline Technician
Powerline/Meter Test Tech
Apprentice
Percentage of
U82 / Step 13 See Apprentice Salary Schedule
Powerline Tech (RG Certified)
Apprentice
Percentage of
U84 / Step 13 See Apprentice Salary Schedule
Assistant Electric Service
Planner U74 10 ranges or 25% below Electric Service Planner Public Benefits Analyst U72 4 ranges or 10% above Public Benefits Coordinator
Public Benefits Coordinator U68
Lead Field Service
Representative U60 4 ranges or 10% above Field Service Representative Warehouse Services
Specialist – Electric U58
Electric Service Worker U58
Field Service Representative U56
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16 Utility Services/Engineering
Services Assistant U54
Auto Cad/GIS Technician U68
Senior Electric Distribution
System Designer N/A
WATER/WASTEWATER:
CLASSIFICATION
ADJUSTED
SALARY
RANGE
LADDER/STRUCTURE
Assistant Water Superintendent U78 4 ranges or 10% above Dist/Prod/WW Supervisor
Distribution/Production/Wastewater
Supervisor U74 4 ranges or 10% above Lead
Water Services Lead*/Water
Production Operator Lead/
Wastewater Collection Systems
Technician Lead
U70
4 ranges or 10% above
Service Worker III/Prod III/
Wastewater III
Water Production Operator III/
Water Services Worker III/
Wastewater Collection Systems
Technician III
U66
4 ranges or 10% above
Dist/Prod Operator II/
Wastewater Collection
Systems Technician II
Water Production Operator II/
Water Services Worker II/
Wastewater Collection Systems
Technician II
U62 4 ranges or 10% above
Worker I
Water Services Worker I/
Wastewater Collection System
Technician I/ Water Production
Operator I/ Warehouse Specialist -
Water
U58 Benchmark
*Water Services Lead includes the Water Meter Crew Lead, Water Valve Flushing Crew Lead, and Water Construction Crew Lead.
14.2 Apprentice Salaries and Certificate Pay.
(a) All incumbents who have completed their one-year probationary period in the classifications of Powerline Technician and Powerline Crew Supervisor shall be placed at maximum amount of the allocated range.
Incumbents who have not completed their one-year probationary period in such classifications shall be placed on the allocated range at a point which is 95% of the maximum amount of such range.
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17 (b) City will create a new Class and a new Grade that incorporates the 6% received upon training completion and commencement, within the base salary; and City has the ability to do 0, 1, or 2 step increases at reviews. (c) All incumbents in Electric Utility Apprenticeships shall be placed at a point on the allocated range which reflects the corresponding phase, upon commencement, pursuant to ratios a. through g. listed below. Upon successful completion of each phase, apprentice will promote to the next phase and receive the stated range increase, pursuant to ratios a. through g. listed below, upon commencement of that next phase. The Apprenticeship phasing shall be in accordance with their Apprentice Agreement with future wage increases pursuant to the following ratios:
a. Phase 1 - 65% of Powerline Technician at Top Step (Currently Step 13)
b. Phase 2 - 70% of Powerline Technician at Top Step (Currently Step 13)
c. Phase 3 - 75% of Powerline Technician at Top Step (Currently Step 13)
d. Phase 4 - 80% of Powerline Technician at Top Step (Currently Step 13)
e. Phase 5 - 85% of Powerline Technician at Top Step (Currently Step 13)
f. Phase 6 - 90% of Powerline Technician at Top Step (Currently Step 13)
g. Phase 7 - Probationary Powerline Technician - 95% of Powerline Technician at Top Step (Currently Step 13)
(d) All incumbents who have completed the Apprenticeship program shall be promoted to Technician at the start of the next pay period as defined in the Apprenticeship Agreement.
(e) All incumbents in represented classifications for the Water or Wastewater Utility shall receive education incentive pay for non-expired certifications conferred by State of California water regulatory agencies in excess of the minimum job requirements. Employee shall be paid a 5% incentive for the first certificate obtained above the minimum job requirements and an additional 2.5% incentive for each additional certificate obtained up to a total of 12.5%. Under no circumstances shall the cumulative total for incentives exceed 12.5%. No incentives are paid for the classification minimum requirements.
(f) The City will provide reimbursement for CDL training and the testing cost for an employee upon their completion of probation, and subject to the City pre-approving the training company and cost in advance at its discretion. 438
18 In addition, should the employee who receives the reimbursement separate from City employment within two years of receipt of reimbursement, then the employee agrees to reimburse the City for the entirety of the reimbursement.
14.3 Bilingual Premium Pay. Employees who have been certified as being fluent in a language other than English, or sign language, shall receive five percent (5%) premium pay, if the need for fluency is: (1) necessary for the current position, and (2) use of the language for compensation has been previously approved by the employee's supervisor and the Human Resources Department. Qualifications shall be based upon certification of a certifying authority selected by the City. Each employee shall be reviewed annually for bilingual pay as part of the annual evaluation. Authorization and continuation of premium pay shall be at the sole discretion of the City. Nothing contained herein shall preclude the City from requiring proficiency in a second language as a minimum job qualification for any future employee or position.
14.4 Retention Bonus. Represented Unit members in the classifications of Operations System Technician, Probation Meter Test Technician, Probation Powerline Technician, Powerline Technician, Powerline Crew Superintendent, Powerline Crew Supervisor, Substation Test Technician, Meter Test Technician, Electric Planning Supervisor, Electric Service Planner, Senior Electric Service Planner and Certified Powerline Technician shall receive a retention bonus of $5,000 in the first full payroll following July 1, 2025, and $2,500 in the first full payroll following July 1, 2026 as long as they are still employed with the City on the date they are to be paid. The following classifications shall receive $2,500 in the first full payroll following July 1, 2025, and $1,250 in the first full payroll following July 1, 2026 as long as they are still employed with the City on the date they are to be paid:
Assistant Water/Wastewater Superintendent
Wastewater Collection Systems Specialist/LEAD
Wastewater Collection Systems Technician I
Wastewater Collection Systems Technician II
Wastewater Collection Systems Technician III
Wastewater Collection Systems Supervisor
Water Crew Supervisor – Production
Water Crew Supervisor – Distribution
Water Service Worker I
Water Service Worker II
Water Service Worker III
Water Service Crew Lead
Water Production Operator I
Water Production Operator II
Water Production Operator III
Water Production Operator Lead
Warehouse Specialist Water/Wastewater
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19 After the retention bonus payments as described above for the first full payroll following July 1, 2026 are paid, the retention bonus shall no longer be provided and shall sunset.
14.5 Y-Rating. When a Unit member is reclassified to a new or existing class with a lower maximum salary rate, he or she may be assigned a “Y-Rate” designation under which the Unit member will remain at his or her current salary. Unit members with “YRatings” will be frozen at their current prevailing pay rate and will not participate in salary range adjustment until salary schedules related to their new assignment exceed the Yrated pay rate. Establishment of a “Y-Rate” salary for a Unit member is an administrative determination and requires the approval of the Unit member’s department head, the Human Resources Director, and the City Manager. The practice is not to be confused with involuntary demotion, salary range adjustments, or other normal personnel procedures including administrative actions that result in bumping rights.
14.6 Salary Survey. The City agreed to fund a salary survey with an approved consultant that was completed in October 2022. The survey included benchmarked positions as follows: Powerline Technician for Electric, Water Service Worker or Pipefitter for Water; Wastewater Systems Technician/Specialist for Wastewater.
Targeted Equity Adjustments – Implement PSPC 2022 Total Compensation survey recommendations for IBEW Utility classifications, excluding where apprenticeship agreement specifies otherwise.
It was agreed upon that all future salary comparison data shall be gathered from the agencies identified as follows:
ELECTRIC UTILITY
Anaheim
Riverside
Colton
Azusa
WATER UTILITY
Anaheim
Azusa
Colton
Riverside
WASTEWATER UTILITY
Riverside
Redlands
Colton
Ontario
Southern California Edison
Pasadena
Burbank
Eastern Municipal Water
District
East Valley Water District
Redlands
Chino
Coachella Valley
Eastern Municipal Water
District
14.7 Longevity Pay. Effective the first full pay period following City Council adoption of the new MOU, Employees shall receive additional compensation, effective on the employee’s employment anniversary date, for Longevity as follows:
(a) Upon completion of ten (10) years of continuous service, employees will receive additional pay of one percent (1.0%) of base salary;
(b) Upon completion of fifteen (15) years of continuous service, employees will receive additional pay of one and one-half percent (total 1.5%) of base salary; (c) Upon completion of twenty (20) years of continuous service employees will receive additional pay of two percent (total 2.0%) of base salary. 440
20 The longevity pay described above is not “stacked,” e.g. an employee who has 20 years of continuous service or more would receive a total of 2.0% additional pay as longevity pay.
ARTICLE 15 -OVERTIME, ON-CALL PAY
15.1 Maximum Comp Time Accrual. All work performed by Unit members in excess of forty (40) hours in one (1) week, where such hours are required and approved by management, shall be paid at the rate of two (2) times the employee's regular hourly base rate of pay, unless the premium rate is higher at the rate of one and one half (1.5) times the employee’s regular premium hourly rate of pay. Overtime may be accrued as compensatory time to a maximum of one hundred sixty (160) hours. All overtime worked in excess of one hundred sixty (160) hours shall be paid for in the pay period in which it is earned.
15.1a Irrevocable Compensatory Time Leave Cash-Out. Compensatory time off cap is 160 hours, of which a maximum compensatory time amount of up to eighty (80) hours is eligible for an irrevocable cash-out option of up to twice per calendar year to be paid on the last pay check of May and/or November. Completed irrevocable election forms are due no later than December 31 of the calendar year prior to the calendar year in which the employee receives the cash-out. Employees will state the amount of hours to be cashed out for the May and November cash-out in their submitted irrevocable election form. Only CTO already accrued in the calendar year for which an election is made may be cashed out. If the employee does not accrue the CTO in the amount elected on form, the cash-out amount will be reduced accordingly to the amount accrued. Cash-outs for CTO accrued in the prior calendar year are not allowed.
Employees may choose to have cash-out amount made as an employee contribution to the employee’s 457 deferred compensation plan or retiree health savings plan, subject to any applicable contribution limits imposed by IRS regulations.
15.2 Hours Worked. For purposes of overtime calculation, "hours worked" shall include time spent in required court appearances as set forth in Article 17. Hours worked shall also include approved vacation, holiday and compensatory time off. All other hours paid for but not worked, including sick leave shall not be counted as hours worked for overtime calculation.
15.3 Call Out Minimum Compensation.
(a) The City agrees to pay to the Unit member a minimum of two (2) hours pay for any time worked during the first hour when called-out for emergencies, and double time for each hour worked thereafter, unless the premium rate is higher at the rate of time and one half (1½). Call out minimum compensation does not apply to answering phone calls or emails off-site or off-duty, though employees are still entitled to pay for actual time worked in responding to such calls. When a call out exceeds one hour and 441
21 the employee has returned to the yard, and subsequently receives another call out, the employee shall begin a 2nd call out and not a continuance from the 1st call out (conversely, if the employee has not yet returned to the yard, it is a continuance from the 1st call out).
If in the future the City provides portable internet capable devices, then call out minimum pay will not apply to use of those devices off duty and/or off site to check and/or respond to calls or clear messages and/or alarms, though employees are still entitled to pay for actual time worked responding to such calls.
(b) All certified electrical and water employees (excluding the Electrical Services Worker and Apprentice employees) of this Unit are required to be placed on a Standby List by the Department Head, or his/her designee, on a rotational basis which includes alternating between both Primary and Secondary standby. The employee designated as the Primary is authorized to call the employee designated as the Secondary when the Primary determines that it is necessary to do so for safety or other legitimate reasons. The reason for the call-out of the Secondary employee shall be documented in writing and submitted to the Department Head and attached to the timecard for any callout hours worked by the Secondary on-call person.
15.4 On-Call Pay.
(a) Compensation for all employees placed on-call for a period of one (1) week (defined as one-hundred sixty eight (168) hours less forty (40) hour work week) shall receive additional compensation of twenty (20) hours at the regular rate of pay.
(b) When a holiday falls during a regularly scheduled on-call period, the employee will receive an additional four (4) hours of pay at the basic rate of pay per City Paid Holiday.
(c) On-call pay shall not be paid for an employee's scheduled work shift.
(d) Employees shall be entitled to receive the pro rata equivalent for any partial week.
(e) On-call assignments shall only be made by the Department Head or his/her authorized representative.
(f) On-call duty shall be served pursuant to a schedule prepared by the Department Head or his/her designee.
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22 (g) Due to the implementation of the Alternative Work Schedule in City's Administrative Policy No. 30, Utility Department’s on-call pay begins and ends eleven (11) a.m. Thursday to Thursday.
15.5 On-Call Status. For purposes of this Article, an employee shall be deemed to be on On-Call status only when all of the following conditions are met:
(a) The appropriate manager has placed the employee in on-call status by a notice in writing and said notice must be attached to the employee's timecard; and
(b) The employee is required to respond to the City yard or other designated location within a specified time not to exceed forty-five (45); and (c) While on-call, the employee is prohibited from engaging in any activity which may interfere with the employee's ability to respond to a call and immediately commence the required job performance.
15.6 Communication Devices. An employee in on-call status may be required to wear a communication device. The requirement to wear a communication device shall not, absent the requirements set forth in section 15.5 constitute the placing of the employee in an on call status.
ARTICLE 16 - TEMPORARY UPGRADE PAY AND PROMOTION PAY
16.1 Temporary Upgrade (Out of Class). Unit members temporarily assigned by management to work in a higher classification, including classifications outside of the Unit for which they are qualified, shall receive compensation equivalent to a step on the higher classification salary range which provides a minimum of five percent (5%) above the employee's current salary or the bottom step of the range of the position to which he/she is temporarily upgraded, whichever is greater. Temporary upgrade pay shall be effective the day the assignment is made. At such time as an employee is no longer performing work out of his or her permanent classification, compensation shall be at the regular rate of pay for the permanent classification.
When assigning temporary upgrades, it is the intent of the City that such assignments shall be made in a fair and equitable manner so that all qualified employees are given an opportunity to work such assignments.
The parties agree to continue to meet and confer on this provision 16.1 only, and any such agreement through the continued meet and confer process would replace the language of this provision.
16.2 Promotions. Unit members promoted to work in a higher classification shall be placed in the new salary range of the higher classification that pays at least five percent (5%) more than the employee received in the lower classification.
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23 16.3 Limited Assignments. Temporary assignments to perform work out of an employee's permanent classification shall be limited in duration to 960-hours in any twelve (12) month period. A time extension to the temporary assignment beyond the initial 960 hours may be made with the written concurrence of IBEW – Local 47.
ARTICLE 17 - PAY FOR JURY DUTY & COURT APPEARANCES
Any employee summoned for attendance to any court for jury duty during his/her normal working hours shall be deemed to be on duty and there shall be no loss of salary, but any jury fees received by him/her shall be paid into the City treasury. Any employee, who shall be called as a witness arising out of and in the course of his/her City employment, shall be deemed to be on duty and there shall be no loss of salary, but any witness fees received by him/her shall be paid into the City treasury. An employee absent as a witness in a private matter shall not be entitled to be paid during such absence, he/she may, however, use vacation time for such absence.
ARTICLE 18 - SAFETY, EQUIPMENT AND TRAINING
18.1 Safety Equipment. The City will provide employees safety equipment in accordance with California State Law.
18.2 Uniforms. The City shall provide uniforms for employees who are required by the City to wear a uniform.
18.3 Boot/Safety Shoe Allowance. The City shall provide a yearly boot /safety shoe allowance of $300 to each employee who is required, by the nature of his/her work to wear a specific type/style of shoe or boot. An approved shoe/boot is one which meets the minimum standards as determined by the Department Head and approved by the Joint Safety and Training Committee. Departmental standards shall not be less than those which may be required by CAL/OSHA. Employees shall wear approved shoes/boots during working hours where required by work conditions.
18.4 Damaged Property. The City shall reimburse unit employees the reasonable replacement value of personal property destroyed in the course and scope of their employment. The employee shall make application for reimbursement by presenting to the Department Head the damaged or destroyed article. Personal property subject to this provision consists of personal property necessary to fulfill the employee's job duties and that is approved in advance for use on the job. Replacement for prescription eyewear is limited to $200 per year. Replacement for watches is limited to $100 per year. Excluded from this definition are items of clothing used by the employee in the exercise of his/her discretion in lieu of City issued uniform apparel. Replacement of items will be secondary to any applicable insurance.
18.5 Inclement Weather. Whenever management decides not to send employees into the field during normal work hours due to inclement weather, those employees shall not suffer any loss of regular pay. When employees are not assigned to the field under this 444
24 provision, they may be given other duties, assigned to training, or be held to respond to emergency calls.
18.6 Joint Safety and Training Committee. The City hereby agrees to create a Joint Safety and Training Committee. The Committee shall consist of an equal number of members appointed by the City and IBEW – Local 47. The Committee shall be advisory only. The Committee shall meet on a regular basis, but not less than once per quarter.
The City and IBEW – Local 47 may agree to meet more frequently on a regular or special basis. The Committee may review work practices, training, procedures and rules and may recommend changes in the interest of health and safety. The Committee may review all serious accidents, injuries or fatalities, and include recommendations resulting from its review in the Committee's minutes. The Committee will also draft a safety manual for each department.
18.6.1 Reporting. Minutes of all Committee meetings shall be posted on IBEW – Local 47 bulletin boards, with copies to the City Manager, Human Resources Department, and to the Business Manager of IBEW – Local 47, within five (5) working days after the Committee meeting. Specific questions submitted either to the Committees or by the Committees to Management will be responded to within a reasonable time and the answers posted on IBEW – Local 47 bulletin boards.
18.6.2 Discipline. Proceedings of the Committee shall be completely independent of any disciplinary action and the Committee's findings shall not be entered into the record of any such disciplinary proceedings.
ARTICLE 19 - MILEAGE, MEALS AND OTHER REIMBURSEMENT
19.1 Personal Vehicle. Employees shall be reimbursed for use of their own vehicle for authorized City business pursuant to the administrative policies of the City. (Refer to Administrative Policy E-1 for guidelines.) Union has tentatively agreed to an updated citywide vehicle use policy.
19.2 Meal Periods. Employees shall earn meals at fixed intervals during periods of callout overtime, and during an extension of the regular or planned overtime day.
(a) Employees called back within two hours after the end of their shift shall earn one thirty minute paid meal period and one meal period compensation of $20.00.
(b) During call-out overtime, one thirty minute meal period and one meal compensation of $20.00 will be earned for each consecutive four hours of paid overtime completed.
(c) During extension of the regular workday, one paid thirty minute meal period and one meal compensation of $20.00 will be earned after two 445
25 consecutive hours paid overtime completed; thereafter, meals will be earned after completion of each four consecutive hour intervals as described above.
(d) Employees that work two consecutive hours or more immediately prior to the beginning of a regular shift will earn one thirty minute meal period and one meal compensation of $20.00.
(e) Planned overtime – If planned overtime extends beyond the length of a regular workday, one paid thirty minute meal period and one meal compensation of $20.00 will be earned after two consecutive hours worked beyond the number of hours in employee’s regular schedule completed; thereafter, meals will be earned after completion of each four consecutive hour intervals of planned overtime. For example, employee’s regular schedule in 4/10’s; when planned overtime exceeds 10 hours in one day this section applies.
(f) If “called out” while on planned overtime, Section 19.2(b) goes into effect during the call out.
(g) Paid meal periods will not count as time worked.
(h) It is recognized that employees may not be able to leave an emergency situation and that the final determination of this fact shall be made by the supervisor in charge of the particular activity.
(i) Employees shall receive pay for earned meal periods and meal compensation regardless of whether the meal period or meal is actually utilized. All meal periods will be paid at the applicable overtime rate.
ARTICLE 20 - TUITION REIMBURSEMENT: EDUCATION INCENTIVE
20.1 Qualifications.
(a) Reimbursement under this section shall be made for employee participation in an educational program which provides broad knowledge with respect to a subject, consistent with the requirements of subsection B immediately below. This is distinguished from "training." which relates to education in the performance of a limited task or tasks which the employee is required to perform as part of their current employment.
(b) Maximum reimbursement shall be $4,500 per fiscal year. Tuition actually paid will be reimbursed to all permanent employees for courses and required books related to classes qualified for tuition reimbursement approved by the Department Head and taken in an accredited educational institution provided that:
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26 (i) The subject matter of the course relates to obtaining a degree, including prerequisites, or relates directly to and contributes toward the employee's position with the City.
(ii) The employee has received at least a competent proficiency rating on the last evaluation report.
(iii) The employee has furnished evidence that the course has been completed with at least a 'C' or “pass” grade, verified by Human Resources.
20.2 Reimbursement Requirements.
(a) Requests for reimbursement must be completed and returned to the Human Resources Department with proof of satisfactory completion within thirty (30) days after employee’s receipt of course completion documentation. (No reimbursement will be made without bona fide receipts or documentation.)
(b) Reimbursements will be made only after proof of completion of course with minimum ‘C’ average or “pass” and satisfactory receipts of payment for tuition are approved by the Human Resources Department.
20.3 Hours Worked. The City shall pay represented employees for working hours spent in City required and approved training or conferences. Travel time shall be included as time worked in accordance with FLSA standards. The City shall not pay for the costs incurred to meet minimum job requirements.
20.4 Education Incentive. A one (1) time Education Incentive shall be paid to represented employees upon successful completion of certain educational programs under the following conditions:
(a) $500.00 (five hundred dollars) shall be payable for successful completion of a certificate program requiring 80 hours or more for completion, from an accredited college or university in an area of specialization related to the duties of the position currently held by the employee as previously approved by the Human Resources Department. An additional $500.00 (five hundred dollars) shall be paid if the certificate is in the area of supervision of personnel
(b) $2,000.00 (two thousand dollars) shall payable for successful completion of an AA or AS Degree from an accredited college in an area of specialization related to the duties of the position held by the employee at the time the employee completes the program as previously approved by the Human Resources Department.
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27 (c) $3,000.00 (three thousand dollars) shall be payable for successful completion of a BA or BS Degree from an accredited college or university in any subject after three (3) years of employment with the City. An additional $1,000.00 shall be paid if the degree is in the area of public or business administration, human resources, accounting, information management, or adult education.
(d) $4,000.00 (four thousand dollars) shall be payable for successful completion of a Master’s Degree from an accredited college or university in any subject after three (3) years of employment with the City.
(e) Programs shall be accredited by the California State Board of Education or equivalent authority. The incentive payments shall be otherwise subject to such rules and procedures as established by the City. Receipt of education incentive payments shall not be precluded by the fact that the employee may or may not have obtained tuition reimbursement by the City for all or part of the units required for the certificate or degree.
(f) Education incentive payments shall be made according to the following schedule:
Employees completing certain education programs will receive 100% of the incentive pay with satisfactory proof.
It shall be the employees' sole responsibility to provide all necessary documentation, to obtain prior approval and to make the request for education incentive payment.
ARTICLE 21 - SICK AND BEREAVEMENT LEAVE
21.1 Sick Leave Accrual. Unit members shall accrue three and sixty-nine hundredth (3.69) hours of sick leave per pay period. Sick leave shall accrue up to a cap of four hundred (400) hours. Leave banks can be utilized for time off or for conversions per provisions in the MOU. Employees with remaining "Old Sick Leave" accounts must utilize these hours prior to using their regular sick leave hours.
21.2 Use of Sick Leave. Sick leave shall be granted only where consistent with the City's Sick Leave Policy (currently AP-1). Except as otherwise provided in the Family Medical Leave Act and Pregnancy Leave policies of the City (currently AP-02) not more than one half (1/2) of the employee's annual accrual of sick leave within any calendar year may be granted to an employee for the care or attendance of members of his/her immediate family.
21.3 Irrevocable Sick Leave Cash-Out
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28 Sick leave accrues at 3.69 hours per pay period up to 400 hours cap, of which a maximum amount of up to fifty (50) hours is eligible for an irrevocable cash-out option each calendar year to be paid on the last pay check of November only if: the cash-out does not reduce the employee’s available sick leave bank below one hundred twenty (120) hours. Completed irrevocable election forms are due no later than December 31 of the calendar year prior to the calendar year in which the employee receives the cashout. Employees will state the amount of hours to be cashed out for the November cashout in their submitted irrevocable election form. Only sick leave already accrued in the calendar year for which an election is made may be cashed out. If the employee does not accrue the sick leave in the amount elected on form, the cash-out amount will be reduced accordingly to the amount accrued. Cash-outs for sick leave accrued in the prior calendar year are not allowed. Employees may choose to have cash-out amount made as an employee contribution to the employee’s 457 deferred compensation plan or retiree health savings plan, subject to any applicable contribution limits imposed by IRS regulations.
One cleanup buyout may occur upon Tentative Agreement ratification by IBEW – Local 47 and approval by Council. Irrevocable election for each leave bank to occur by May 1, 2023, to be paid out in the pay period including June 1, 2023, based on the criteria outlined above.
Any cash-out may be converted pre-tax to the Unit member’s 457 Deferred Compensation account (subject to IRS maximum contributions provided by law).
21.4 Sick leave upon separation. Upon separation, service retirement or termination, after ten (10) years of continuous City service, the employee shall be eligible to convert to cash an amount equivalent to thirty percent (30%) of all unused sick leave or contribute the entire remaining balance of sick leave to the employee's 457 Deferred Compensation Account (subject to IRS maximum contributions provided by law) or City’s Retiree medical Savings Account, if available. Such reimbursement is to be computed based upon the employee's final compensation rate and to be paid within one payroll period of the effective date of separation.
21.5 Sick leave Conversion. After ten (10) years of continuous City service, the employee shall be eligible to irrevocably elect to convert one hundred percent (100%) of unused sick leave minus forty (40) hours to the City's Retiree Medical Savings Plan or to the employee’s 457 Deferred Compensation Account (subject to IRS maximum contributions provided by law). Conversion forms are due no later than November 1st of the tenth year of continuous service. The irrevocable option will be converted the following calendar year in the pay period that includes January 1st.
21.6 Bereavement. Unit members shall be allowed five days of bereavement, thirty (30) hours of which are with pay, for bereavement leave upon the death of a member of their family. For this section, family includes the following persons: spouse, domestic partner, mother, father, brother, sister, child, stepchild, grandchild, or grandparent of the employee or any one of the same relatives of the employee’s spouse or domestic 449
29 partner. The thirty (30) hours of bereavement shall be allowed for each death of a family member. For the unpaid time between the 30 hours and five days, an employee may use vacation, compensatory time, sick leave, or any other paid leave that would otherwise be available. An employee shall be allowed a maximum of forty (40) hours bereavement leave under this section for multiple family deaths occurring during the same twenty-four (24) hour period.
21.7 Salary Continuation. For any work-related injury, an employee shall have sixteen (16) weeks of Salary Continuation Pay for time off work authorized by the treating physician, including time for scheduled appointments with the treating physician.
21.8 Work Related Injuries. All other aspects of employees work related injuries will be governed by the City Administrative Policy No. RM-03, Return to Work/Temporary Modified/Work Assignment Program.
ARTICLE 22 - VACATION AND HOLIDAY ACCRUALS
22.1 Vacation Leave Accruals. For employees of the City as of date of this MOU, Vacation benefits shall accrue in accordance with the following schedules:
One (1) through four (4) years service
Ten (10) days per year =three and eight one-hundredth (3.08) hours per pay period
Beginning the fifth (5th) year through the 9th year:
Fifteen (15) days per year =four and sixty-two hundredth (4.62) hours per pay period
Beginning the tenth (10th) year & thereafter:
Twenty (20) days per year =six and fifteen one-hundredth (6.15) hours per pay period
22.2 Maximum Vacation Leave Accrual. An employee may accrue vacation leave to a maximum of three-hundred twenty (320) hours. If an employee has accumulated the maximum allowed under this Article, said employee will receive no further vacation leave accruals until said employee uses a portion of his/her vacation leave and his/her vacation leave accruals have been reduced below the maximum. There shall be no retroactive receipt of any vacation leave lost as a result of this Article.
22.2a Irrevocable Vacation Leave Cash-Out. Vacation leave cap is 320 hours, of which a maximum amount of up to eighty (80) hours is eligible for an irrevocable cash-out option each calendar year to be paid on the last pay check of November only if the cashout does not reduce the employee’s available vacation leave bank below eighty (80) hours. Completed irrevocable election forms are due no later than December 31 of the calendar year prior to the calendar year in which the employee receives the cash-out.
Employees will state the amount of hours to be cashed out for the November cash-out in their submitted irrevocable election form. Only vacation leave already accrued in the 450
30 calendar year for which an election is made may be cashed out. If the employee does not accrue the vacation leave in the amount elected on form, the cash-out amount will be reduced accordingly to the amount accrued. Cash-outs for vacation leave accrued in the prior calendar year are not allowed. Employees may choose to have cash-out amount made as an employee contribution to the employee’s 457 deferred compensation plan or retiree health savings plan, subject to any applicable contribution limits imposed by IRS regulations.
22.3 Vacation Leave Approval Required. Vacations shall begin accruing upon employment and may be taken with approval of the Department Head at any time following the completion of six (6) months of employment within the one (1) year probationary period, but the vacation leave taken shall not be in excess of that actually accrued at the time such vacation is taken. Vacations must be approved a minimum of fourteen (14) days in advance of the first day of such vacation. Exceptions may be made to the fourteen (14) day notice requirement for emergencies or at the discretion of the City as determined by the Department Head or Division Supervisor.
22.4 Vacation Leave Payment Upon Termination. Any employee who has been in continuous full-time service of the City for a period of six (6) months or more, who is about to terminate his/her employment, and has earned vacation to his credit, shall be paid for such vacation time within one payroll period of the effective date of such termination.
22.5 Vacation Leave Payment In Lieu. No more than once every three (3) years, at the request of the employee and with the approval of the Department Head and the Human Resources Department, in order to meet unusual or emergency conditions, an employee may irrevocably elect to be paid the straight time daily equivalent of forty (40) hours of his/her salary in lieu of vacation time off. Such payment shall be determined by the Human Resources Department. The balance of accrued vacation shall not be allowed to go below forty (40) hours as the result of a payment under this subsection. Buyout forms are due no later than November 1st of the third year. The irrevocable option will be payable the following calendar year in the pay period that includes September 1st.
22.6 Holidays. Holidays for employees covered by this section shall be as follows:
New Year’s Day
Martin Luther King Day
President's Day
Memorial Day
Juneteenth
Fourth of July
Labor Day
Veteran's Day
Thanksgiving
Day after Thanksgiving
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31 Christmas Eve
Christmas
New Year’s Eve
One (1) floating holiday
As indicated in Administrative Policy A-30, Alternative Work Week – A "Holiday bank will be created for each employee to accrue flexible holiday hours. Hours accrued in the bank are subject to a mandatory annual buy-out with the payroll closest to June 1st of each year".
Any buy-out may be converted pre-tax to the Unit member’s 457 Deferred Compensation account (subject to IRS maximum contributions provided by law).
22.7 Holidays Falling on Weekend Days. If the scheduled holiday falls on a Friday (regular day off) or Saturday, it may be observed on a Thursday or accrued to the Holiday leave bank as determined by the holiday schedule posted on the City’s Intranet.
If the holiday falls on a Sunday, the holiday will be taken on the following Monday.
22.8 Flex Schedule. Employees working a flex schedule shall be paid holiday time in accordance with the City's Administrative Policy No. A-30.
22.9 Floating Holiday. The floating holiday set forth in Article 22.6 above, shall be credited as ten (10) hours to each represented employee's account effective with the first payroll in each fiscal year. Floating holiday leave balances must be used during the fiscal year or they will be cashed out according to Administrative Policy A-30.
22.10 Added Holidays. If, during the term of this MOU, the City Council recognizes an additional holiday for City employees, said holiday shall be extended to this Unit.
22.11 Holiday Leave. When holiday leave is taken, the employee will be paid at the standard ten (10) hours per day, regardless of the assignment of a ten (10), or twelve (12) hour scheduled workday. When holiday leave is taken, anyone working less than a ten (10) hour workday schedule shall receive leave time as compensation for the difference between their regular work day on the holiday and ten (10) hours. An employee may utilize any accrued leave bank except sick leave to supplement the twelve (12) hour scheduled day.
22.12 Holiday Leave Payment Upon Termination. Any Unit employee, who is about to terminate his/her employment, and has earned Holiday leave to his/her credit, shall be paid for such holiday leave within one payroll period of the effective date of such termination at the employee’s then current rate of pay.
22.13 Promotional Pay Out of Leave. When employees transfer/promotions occur between bargaining groups, the leave hours will be transferred and maintained by the employee, not cashed out.
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32 ARTICLE 23 - MEDICAL AND DENTAL INSURANCE
23.1.1 Pre-January 1, 2024 Benefits.
Effective July 1, 2019, the cafeteria plan contribution will be increased by $50 to $1,400 per month, or $16,800 annually to each Unit member for the cafeteria benefits plan detailed in this section.
(a) Said contribution shall first be used to provide for Health Insurance for employee. Employee shall be covered by Health Insurance with a City approved Health Plan unless the employee provides proof to the City that employee is covered by another acceptable health plan as determined by the Human Resources Department.
(b) The balance may be used for any of the following or any combination thereof:
(i) Health insurance for employee's spouse and/or dependents. (ii) Dental insurance for employee, spouse and/or dependents. (iii) Life insurance for employee, excluding voluntary life insurance. (iv) Deferred compensation program.
(v) Eye care plan for employee, spouse and/or dependents. (vi) Supplemental insurance options.
(c) Unit members may elect to receive ninety-two and five-tenths percent (92.5%) of the balance in cash as CalPERS non-includable taxable income, or a portion as cash and a portion to a 457 plan. This election may only occur at time of hire or during open enrollment.
During the term of the MOU, upon written notice by the City, parties agree to reopen this Article and begin meeting and conferring no later than two weeks following such written notice.
23.1.2 Benefits Effective January 1, 2024.
The parties have completed the above re-opener negotiations of this Article. The following is effective January 1, 2024. Accordingly, the above Pre-January 1, 2024 Benefits under 23.1.1 shall no longer be in effect as of January 1, 2024. (a) Health Benefit Contributions and Benefit Money.
i. Healthcare Plan Contributions – Effective January 1, 2024, the City shall contribute for each employee who participates in a City Healthcare Plan a maximum amount up to the 2024 rates for mid-tier HMO Healthcare Plan (Blue Shield Access+), which are stated below.
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33 BS ACCESS+
Single Employee $756.65
2 Party $1,513.30
Family $1,967.29
Beginning January 1, 2025 and annually thereafter on January 1, the maximum annual inflator for the City contribution increase is up to 2.5% above the maximum contribution amount for rates for mid-tier HMO Healthcare Plan (Blue Shield Access+ in 2024) of the prior year. ii. In addition to the healthcare plan contribution, employees participating in the City Healthcare Plan shall receive the following amounts as cafeteria plan Benefit Money.
Single Employee $600
2 Party $250
Family $250
Employees may use the Benefit Money stated above for any combination of the following cafeteria plan benefits: (1) dental insurance for employee, spouse, and/or dependents; (2) vision insurance for employee, spouse, and/or dependents; (3) health flexible spending account (health FSA); and/or (4) additional City offered health benefits. Any leftover unused Benefit Money is forfeited.
*Because of requirements related to the 457 plan election, those employees who are currently contributing to their 457 plan amounts for 2024 from their cafeteria plan contribution would continue to maintain their current level of contribution using the cafeteria plan contribution through the end of 2024 only.
Employees shall be responsible for paying any cost for the employee’s selected cafeteria plan benefits that exceed the City’s contribution described above. (b) Option to Opt-Out with Proof of Alternative Minimum Essential Coverage.
Employees who provide the City with reasonable evidence of alternative minimum essential coverage can decline, in writing, coverage under the City’s Healthcare Plans and will not receive any cafeteria plan contribution from the City.
i. Employees hired before July 1, 2024 may opt out and choose to receive a maximum cash out of $1,000 per month as taxable income that is not includable as compensation earnable or pensionable compensation for CalPERS purposes if they meet the conditions of the eligible opt out arrangement described below. Such employees would also receive $150 per month as Non-Medical Benefit Money that may be used for (1) dental 454
34 insurance for employee, spouse, and/or dependents; (2) vision insurance for employee, spouse, and/or dependents; (3) health flexible spending account (health FSA); and/or (4) additional City offered health benefits.
Any leftover unused Non-Medical Benefit Money is forfeited. ii. Employees hired after July 1, 2024 may opt out and choose to receive a maximum cash out of $500 per month as taxable income that is not includable as compensation earnable or pensionable compensation for CalPERS purposes if they meet the conditions of the eligible opt out arrangement described below. Such employees would also receive $150 per month as Non-Medical Benefit Money that may be used for (1) dental insurance for employee, spouse, and/or dependents; (2) vision insurance for employee, spouse, and/or dependents; (3) health flexible spending account (health FSA); and/or (4) additional City offered health benefits.
Any leftover unused Non-Medical Benefit Money is forfeited. *Because of requirements related to the 457 plan election, those employees who are currently contributing to their 457 plan amounts for 2024 from their cafeteria plan contribution would continue to maintain their current level of contribution using the cafeteria plan contribution through the end of 2024 only.
iii. Eligible Opt Out Arrangement – The eligible opt out arrangement conditions that must be satisfied in order for an employee to receive cash for opting out of the City’s Healthcare Plan coverage are as follows:
a. The employee and the employee’s Tax Family must have (or will have) minimum essential coverage through another source (other than coverage in the individual market, whether or not obtained through Covered California);
b. A Tax Family means all individuals for whom the employee reasonably expects to claim a personal exemption deduction for the taxable year(s) that cover the employee’s plan year for which the eligible opt out arrangement applies;
c. The employee must provide reasonable evidence of the alternative minimum essential coverage for the employee and their Tax Family for applicable period. Reasonable evidence may include an attestation by the employee;
d. The employee must provide the evidence/attestation every plan year; e. The employee must provide the evidence/attestation no earlier than a reasonable time before coverage starts (e.g., open enrollment). The evidence/attestation may also be provided within a reasonable time after the plan year starts; and
f. The cash for opting out cannot be made if the City knows or has reason to know that the employee or the employee’s tax family member does not have alternative minimum essential coverage. 455
35 23.2 IRS 125 Flexible Spending Plan (Cafeteria Plan). During the term of this MOU, the City shall maintain an Internal Revenue Service (IRS) 125 plan which will allow employees to allocate specified amounts of monthly pre-tax salary or wages for the reimbursement of medical care expenses or dependent care expenses or both as defined by the IRS.
23.3 Eye Wear Reimbursement. City will also reimburse a maximum total annual (per fiscal year) amount of $200 for protective eye wear for an employee.
23.4 Insurance Advisory Committee. The City shall maintain the Benefit Advisory Committee to which IBEW – Local 47 may appoint a representative.
23.4.1 Purpose. The purpose of the Benefit Advisory Committee shall be to advise the City relative to health, life, and related insurance plans which may be provided to employees of the City including the type of plans, scope of coverage, and the selection of insurance carriers.
23.4.2 Voting. The Benefit Committee shall determine issues by a majority vote of the members, each member having one (1) vote.
23.4.3 Selection of Members. Benefit Committee Members shall be selected as follows:
(a) Representatives of bargaining units shall be selected in a manner to be determined by each respective unit.
(b) The City's Representatives shall be the Human Resources & Risk Manager and the Administrative Services Director.
23.4.4 Meetings. The Benefit Committee shall meet as may be necessary to conduct the business of the committee.
23.4.5 Status. The Benefit Advisory Committee will be advisory only, with no power or prerogative to decide on behalf of the City on issues pertaining to employee insurance coverage.
ARTICLE 24 - RETIREMENT AND MEDICARE
24.1 California Public Employees Retirement System (CalPERS) Formulas. (a) All IBEW – Local 47 represented miscellaneous employees hired prior to December 11, 2012 remain eligible to receive the CalPERS retirement plan known as “two and one-half at fifty-five” retirement (2.5% @ 55) formula for Miscellaneous Employees.
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36 (b) Beginning on or after December 11, 2012, the City implemented the 2% @ 60 retirement formula for miscellaneous new hires with average three years for calculation of final retirement benefit, which after January 1, 2013 shall only apply to new hires defined by CalPERS as “classic members.” (Approved by City Council through side letter December 11, 2012.)
(c) Beginning January 1, 2013, new hires defined by CalPERS as “new members” receive the newly created 2% @ 62 retirement formula with average of three years for calculation of final retirement benefit. (Mandated by the Public Employees’ Pension Reform Act of 2013.)
24.2 CalPERS Member Contributions. All IBEW – Local 47 represented employees shall pay their full member contribution rate to their respective retirement plan with CalPERS. CalPERS will determine the employee member contribution rates for each retirement formula. The City does not provide any Employer Paid Member Contributions for Unit members.
24.3 F.I.C.A. Represented employees shall pay the employee's portion of FICA and the City shall be responsible for payment of the employer's portion.
For information about pensionable compensation, refer to CalPERS, whose current link is at https://www.calpers.ca.gov/page/about/laws-legislation-regulations/publicemployees-pensionreformact#:~:text=In%20addition%2C%20for%20the%202020.in%20the%20Consumer %20Price%20 Index (Public Employees’ Pension Reform Act).
ARTICLE 25 - MISCELLANEOUS BENEFITS
25.1 Disability Insurance.
(a) Each employee shall pay the cost of membership in the City's long term disability insurance selected by the City. City agrees to offer a short term disability program at the employee’s expense provided that such short term disability program can be offered in conjunction with the City’s existing long term disability insurance and the Short Term Disability waiting period will reduce from 30 days to 7 days. The City will notify IBEW – Local 47 of this option at the City's Annual Benefit Advisory Meeting.
(b) An employee with sick leave accruals available may use their accruals in conjunction with STD/LTD benefits until exhausted. When sick leave is exhausted, an employee may use accumulated vacation leave and may also elect to use compensatory time to extend full pay as long as possible except when exempted by City policy and the Family Medical Policy. An employee is prohibited from receiving more than 100% of salary in combined sick/vacation leave and City's STD/LTD/Paid Family Leave benefits.
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37 Employees who are eligible for the Donated Leave Policy, may not receive more than 100% of salary when combined with STD/LTD/Family Leave Benefits.
25.2 Computer Loan. Every Unit member who has completed the initial probationary period as an employee of the City shall be entitled to participate in an interest free loan program for the purchase of a computer. The maximum amount of any individual loan shall be equal to one (1) month of an employee's salary. The cumulative amount of loans outstanding hereunder shall not exceed $40,000. The loan shall be upon the terms and conditions established by the City.
25.3 Direct Deposit. All employees shall be paid by direct deposit of their payroll check into an account of their choice, except those who either do not hold an account with a financial institution that offers direct deposit or who do not hold any account of any type, and such employees will be required to pay a $10 administration fee per payroll. It shall be the responsibility of the employee to establish and maintain such account.
25.4 Utility Allowance. Any represented employee(s) who reside within the City shall receive $150 per month per employee as a discount against the cost of electric and water service during the period of such residency.
ARTICLE 26 - IBEW – Local 47 RETIREE MEDICAL FUND
All represented employees agree to pay one percent (1%) of salary into the IBEW – Local #47 Retiree Medical Fund.
ARTICLE 27 - LAYOFFS AND RE-EMPLOYMENT
27.1 Purpose. The purpose of this Article is to provide a fair and equitable basis for the reduction of full-time classified personnel due to insufficient work or funds.
27.2 Reasons For Lay Off. The City retains the right to determine when a lack of work or lack of funds condition exists. Lack of work means that a category of work effort within the City can be fulfilled with fewer employees at an acceptable level of service. Lack of funds means that the City cannot sustain operations at the current level of employment within the funding available.
27.3 Notice Of Lay Off. Any layoff initiated under the provisions of this document can take place at any time during the year. The City shall notify the affected employees in writing at least fourteen (14) calendar days prior to the employee’s last day of work. The City reserves the right to pay the employee for such fourteen (14) day period or any remaining portion thereof, and to require the employee to immediately vacate City property. A copy of any notice will be forwarded to IBEW – Local 47. Any notice of layoff shall specify the reason for the lay off and effective date. The form and timing of such notice shall be subject to the established Grievance Procedure provided, however, that 458
38 the City's decision to lay off is not subject to the grievance procedure. The date of layoff shall not be delayed by the pendency of a grievance.
27.4 Order Of Lay Off. The classifications of employees to be affected by any layoff shall be as determined by the City in its sole discretion. The order of layoff shall be based upon continuous seniority within the affected classification, except as provided in Section 27.4(a). With respect to the classifications which have been retitled by the City, "continuous seniority within the affected classification" shall not be limited to time in the newly titled classification but shall mean all current continuous time in full-time permanent employment with the City in whatever classification.
(a) Critical Position Function. There are various job functions set forth in the position description for each classification. Certain of these functions may be determined by the City Manager to be vital to the ongoing operations of the City. By way of further definition, a function is "critical" if the City Manager, in the exercise of his/her sole discretion, determines that the City cannot best provide necessary services with the reduced work force without employees capable of performing the "critical" function. A senior employee may be selected for layoff over a more junior employee if the junior employee has demonstrated the ability to perform these critical position functions and the more senior employee has not. No person shall be deprived of the opportunity to develop his/her skills in a critical position function.
(b) For purposes of this section, "critical position function" shall be based on the skills necessary to perform the function and not on the performance of specific tasks performed by the incumbent in any position. "Skill" refers to the basic knowledge and ability necessary to perform a job function e.g. typing, welding, accounting or any recognized subcategory of such function, e.g. pipe welding, welding specialized metals, etc., or cost accounting vs. general accounting. "Tasks" refers to the elements of a position within a department e.g., typing form-A.
27.5 Reduction Of Class. The establishment of a Class Series List was established as indicated on the attached Attachment “C”.
(a) Any employee who has been given a written notice of layoff may choose to be reduced in classification and compensation, to a classification in which the employee has previously established seniority while in the employ of the City, if the employee has greater continuous seniority with the City than at least one (1) person in the lower classification.
(b) Seniority for purposes of layoff shall be determined by the total continuous time served by an employee in his/her current position in addition to any time served by the employee in a position in the same job series with a pay range equal to or higher than the employee's current position. If an 459
39 employee leaves the service of the City for any period of time the employee's prior service shall
not be considered as service for the purpose of calculating the employee's seniority for any purpose.
(c) Alternatively, and exclusive of an election under the previous paragraph
27.5(a), an employee may choose to be reduced in classification and compensation to an existing position in a class series, if the employee has greater continuous length of service with the City than the incumbent in the lower classification in the class series. Class series is defined as a vertical succession of positions that encompass the same general set of job duties that increase in complexity and responsibility as one moves upward through the class series.
(d) Relative class standing for subparagraphs (a) and (b) shall be as determined by the salary ranges for the classifications under consideration. The classification with the highest compensated step in the salary range shall be the higher classification
(e) Anything contained herein to the contrary notwithstanding, any employee may choose to be reduced in an entry level position if the employee meets the minimum qualifications for the position and has more seniority with the City than an incumbent in the position. For purposes of this subsection, an "entry level position" is a position requiring no prior experience.
27.6 Equal Seniority. If two (2) or more employees subject to lay off have equal class seniority, then the determination as to who has seniority shall be based upon total length of uninterrupted service with the City. If both employees were hired on same day, the employee with the lower City Employee number assigned on the date of hire shall be considered to have seniority.
27.7 Reemployment Rights. Laid off employees will be eligible for reemployment up to eighteen (18) months from date of layoff notice.
ARTICLE 28 - GRIEVANCE PROCEDURE
28.1 Items Subject To Grievance Procedure. Any permanent employee in the competitive service who has a grievance based upon his/her demotion, dismissal, reduction in pay, violation of the personnel ordinance, salary resolution or this MOU, or violation of commonly accepted safety practices not resolved by the Safety Committee, shall be entitled to have the matter reviewed through the following grievance procedure outlined in this
Article.
28.2 Informal Step. An attempt shall be made to ascertain all facts and adjust such grievance on an informal basis between the employee and, if he desires, his/her 460
40 steward, and the immediate supervisor. Presentation of such grievance shall be made within fourteen (14) calendar days of the incident causing the grievance, or the date on which the employee first became aware of it.
28.3 Step One. If the grievance is not adjusted to the satisfaction of the employee within fourteen (14) calendar days after presentation of the grievance to the immediate supervisor, then the grievance shall be submitted in writing by the employee or his/her steward to the Department Head, within the next fourteen (14) calendar days. The Department Head and a representative of the Human Resource Department shall meet with the employee, his/her steward or both within fourteen (14) calendar days of receipt of such written grievance and the Department Head shall deliver his decision in writing to the employee, along with his reasons for such decision, within fourteen (14) calendar days after the meeting.
28.4 Step Two. If the grievance is not adjusted to the satisfaction of the employee under the procedures set forth in Sections 28.2 and 28.3 above, then the employee or his/her steward may submit the grievance, in writing, to the City Manager, within fourteen (14) calendar days after the completion of the last step under paragraph 28.3 above.
The City Manager shall meet with the employee, and his/her steward, if applicable, within fourteen (14) calendar days of receipt of such written grievance, and shall deliver his decision in writing, to the employee, along with the reasons for such decision, within fourteen (14) calendar days after the meeting.
28.5 Step Three. If the grievance is not adjusted to the satisfaction of the employee under the procedures set forth in Sections 28.2, 28.3 and 28.4 above, the employee or his/her representative may submit written notice to the City Manager within fourteen (14) calendar days after the completion of the last step under paragraph 28.4 above of his/her intent to submit the matter to arbitration. In matters of interpretation of this MOU, IBEW – Local 47 shall have the exclusive authority to determine whether a grievance shall be taken to arbitration. In disciplinary cases where IBEW – Local 47 may be required to pay for any part of the cost of such arbitration, IBEW – Local 47 may elect to proceed to arbitration. If IBEW – Local 47 does not elect to do so, then the employee may elect arbitration in disciplinary case and the City shall pay all expenses. The procedures set forth below shall be followed for arbitrations.
(a) Within seven (7) calendar days of receipt of the written notice, the parties shall request a list of seven (7) arbitrators from the Federal Mediation and Conciliation Service or any other mutually agreeable mediation service.
(b) Within fourteen (14) calendar days of receipt of the list of arbitrators the City and IBEW – Local 47 (or the employee if not represented by IBEW – Local 47 in a discipline case) shall attempt to reach an agreement on an arbitrator. Failing to agree on an arbitrator, the parties shall take turns striking the names or arbitrators from the FMCS list until one (1) name remains. IBEW – Local 47 (or the employee if not represented by IBEW – Local 47 in a discipline case) shall strike the first name. 461
41 (c) The parties shall contact the arbitrator to arrange for a mutually convenient time and date for the arbitration hearing.
(d) The cost of the arbitrator shall be split equally by the City and the Union save that if the grievance arises from the administration of discipline, the City shall bear the cost.
28.7 Step Four. Within fourteen (14) calendar days after the parties receive the arbitrator's recommendation, the opinion of the arbitrator will be final on matters relating to the interpretation or administration of this MOU. Arbitration on discipline is advisory only. If a decision relates to discipline, within fourteen (14) calendar days after the parties receive the arbitrator's recommendation, the City Manager shall advise the parties whether the City Manager is accepting, rejecting, or modifying the recommended decision. The decision of the City Manager shall be the final decision of the City.
28.8. Change of Time Limits. The above time limits may be changed by mutual agreement.
28.9 Mutual Agreement For Additional Mediation/Arbitration. Upon mutual agreement of the parties, a grievance may be submitted to a representative of a mutually agreeable arbitration service for mediation and/or arbitration. Unless agreed otherwise by the parties in writing, the role of the arbitrator shall be advisory only and it shall have no power or authority to impose a result or resolution upon any of the parties.
ARTICLE 29 – ADMINISTRATIVE LEAVE
29.1 Administrative Leave Provision. Employees will be granted paid time off based on their regular work schedule. Employee will be compensated for holidays while they are on paid administrative leave.
ARTICLE 30 - SEVERABILITY CLAUSE
30.1 Severability Clause. If any of the provisions contained in this MOU are determined to be unlawful, then only such provision(s) shall be deleted from this MOU with the remainder of this MOU remaining in full force and effect. Upon the issuance of a decision by a Court of Competent Jurisdiction declaring any section of this MOU be unlawful, unenforceable, unconstitutional, or not applicable, the parties agree to meet and confer as soon as possible concerning only those sections.
ARTICLE 31 - COMPLETE AGREEMENT
31.1 Entire Agreement: This MOU is the entire agreement between the parties, terminating all prior agreements, whether written or oral, arrangements and practices, and, except as otherwise provided herein, shall conclude all meetings and conferences during the term of this MOU.
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42 31.2 Items not covered: All terms and conditions of employment not covered by this MOU shall continue to be subject to the City's direction and control.
ARTICLE 32 - POSTING JOB VACANCIES
32.1 City agrees to post on City's website and IBEW – Local 47 bulletin boards all vacant positions in the Unit.
ARTICLE 33 - RE-OPENERS
33.1 During the term of this MOU, unless otherwise provided, the parties shall not meet and confer with respect to any subject or matter whether or not referred to in this MOU, unless mutually agreed to otherwise.
ARTICLE 34 – RATIFICATION AND EXECUTION
This MOU has been developed as a result of meet and confer sessions between authorized representatives of the City and IBEW – Local 47 regarding issues related to wages, hours and other terms and conditions of employment. The City’s representative and IBEW – Local 47 have reached an understanding as to certain recommendations to be made to the City Council for the City of Banning and have agreed that the parties hereto will jointly urge said Council to adopt a new wage and benefit resolution which will provide for the changes contained in said joint recommendation. The parties hereto acknowledge that this MOU shall not be in full force and effect until adoption by the Banning City Council.
In witness whereof, the parties have caused their signatures to be affixed this ___th day of ______ 2024.
463
43 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS – LOCAL 47
UTILITY UNIT REPRESENTATIVES
Date: ______________, 20___
By:
Colin Lavin, Business Manager Ben Coffey, Employee Representative
John Baca, Assistant Business Manager Caleb Naasz, Employee Representative
Devin McClune, Employee Representative
CITY OF BANNING REPRESENTATIVES
Date: _________________, 20___
By:
Doug Schulze, City Manager Art Vela, Public Works Director
Nicole Jews, Human Resources Manager Lincoln Bogard, Administrative Services Director
Attest:
By: _________________________
City Clerk
464
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Kristine Gutierrez, Community Development Operations Manager David Newell, Community Development Director
MEETING DATE: November 12, 2024
SUBJECT: Consideration of Resolution 2024-178, Approving Amendment No. 1 to the Professional Services Agreement (C00991) with Aragon Geotechnical, Inc. for Surface Mining Inspection Services to Extend the Contract for an Additional Year and Increase the Contract by $6,082.50 for a Total Not to Exceed $12,165
RECOMMENDATION:
Adopt Resolution 2024-178.
BACKGROUND:
In 2020, the City of Banning issued a Request for Proposals (RFP No. 20-029) to provide the City's Community Development Department with surface mining inspection services. The City selected and contracted with Aragon Geotechnical, Inc., a Nevada Corporation, to provide this service as follows:
On January 25, 2021, the City and Aragon Geotechnical, Inc. entered into a contract (C00677) for Professional Services for $6,082.50 for up to 5 years.
In 2022, the City amended the contract (C00677) agreement to increase the contract sum by $6,082.50 to a total contract sum of $12,165.00 (“Amendment No. 1”), expiring January 24, 2023.
In 2023, the City amended the contract (C00677) agreement to increase the contract sum by $6,082.50 to a total contract sum of $18,247.50 (“Amendment No. 2”), which expired on January 24, 2024.
In 2024, the City and Aragon Geotechnical, Inc. entered into a new contract (C00991) for a sum of $6,082.50 with a total sum not to exceed $24,330.00, expiring January 24, 2025.
The City now seeks to increase the new contract (C00991) by $6,082.50 for a total contracted sum not to exceed $30,412.50, to continue this service as contemplated by the total 5 years in the RFP. If Amendment No. 1 to C00991 is approved, the contract would expire on January 24, 2026.
JUSTIFICATION:
The current contract is set to expire on January 24, 2025, and extending this agreement will ensure ongoing compliance with safety standards and regulatory requirements. Aragon Geotechnical, Inc. has been providing mining inspection services since 2017. Their expertise has been critical in ensuring compliance with local, state, and federal regulations; conducting thorough inspections of mining operations to identify potential hazards; and providing recommendations for improvements to enhance safety and operational efficiency. Extending the term of the contract will ensure that inspections are conducted regularly and that the City remains compliant with all relevant regulations.
FISCAL IMPACT:
465
Approval of the this amendment to the contract (C00991) would increase the contracted amount by $6,082.50. However, this cost is paid by the mine operator.
ALTERNATIVES:
Do not adopt Resolution 2024-178 and provide alternative direction to staff.
BUDGETED?:
Yes
CONTRACT/AGREEMENT:
Yes
ATTACHMENTS:
1. CC Resolution 2024-178 Amendment No. 1 to PSA with Aragon Geotechnical Inc
2. Exhibit A - C00991 - Aragon PSA Amend No.1 Surface Mining Insp Svcs.pdf
3. 2024 Contract - C00991 - Aragon PSA for Mine Inspections.pdf
4. 2021 Contract - C00677_-_ARAGON_GEOTECHNICAL_INC.pdf 466
Resolution 2024-178
RESOLUTION 2024-178
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, APPROVING AMENDMENT NO. 1 TO THE PROFESSIONAL SERVICES AGREEMENT (C00991) WITH ARAGON GEOTECHNICAL, INC. FOR SURFACE MINING INSPECTION
SERVICES TO EXTEND THE CONTRACT FOR AN ADDITIONAL YEAR AND INCREASE THE CONTRACT BY $6,082.50 FOR A TOTAL NOT TO EXCEED $12,165 WHEREAS, on March 6, 2024, the City entered into a Contract (C00991) with Aragon Geotechnical, Inc. for the purpose of providing Surface Mining Inspection Services (“Agreement”) following a Request for Proposal (RFP No.20-029), after complying with procurement laws and policies which include Chapter 3.24 (Purchasing System) of the Banning Municipal Code and Policy No. B-30 (Procurement Policies and Procedures) of the City of Banning’s Administrative Procedures; and
WHEREAS, the Agreement authorized an amount not to exceed $6,082.50, for providing Surface Mining Inspection Services through January 24, 2025, within the City of Banning; and WHEREAS, Aragon Geotechnical, Inc. has provided this service in accordance with the Agreement and in years prior to assist the City in complying with local, state and federal laws with its surface mining inspections annually; and
WHEREAS, the City desires to amend the Agreement to extend the Term of the Agreement to January 24, 2026 and increase the Agreement (C00991) by $6,082.50 to Twelve Thousand One Hundred Sixty-Five Dollars ($12,165.00), resulting in a total contracted sum with Aragon Geotechnical under RFP 20-029 to not exceed $30,412.50.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
SECTION 1. The City Council approves Amendment No. 1 to Professional Services Agreement C00991, authorizing an increase of $6,082.50 for the total amount not to exceed $12,165 and extending the Agreement through January 24, 2026. The total contracted sum with Aragon Geotechnical under RFP No. 20-029 to not exceed the amount of $30,412.50.
SECTION 2. The City Council authorizes the City Manager to make non-substantive changes and execute Amendment No.1 with Aragon Geotechnical 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.
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 12th day of November 2024. 467
Resolution 2024-178
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
468
Resolution 2024-178
CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-178, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 12th day of November 2024 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
469
Resolution 2024-178
EXHIBIT A
Amendment No. 1 to the Professional Services Agreement with Aragon Geotechnical, Inc. 470
AMENDMENT NO. 1 TO THE PROFESSIONAL SERVICES
AGREEMENT (C00991) FOR SURFACE MINING INSPECTION
SERVICES BY AND BETWEEN CITY OF BANNING AND ARAGON
GEOTECHNICAL, INC.
THIS AMENDMENT NO. 1 TO THE PROFESSIONAL SERVICES
AGREEMENT FOR SERVICES (“Amendment No. 1”) by and between the CITY OF BANNING (“City”) and ARAGON GEOTECHNICAL, INC. a Nevada Corporation (“Consultant”) is effective as of this day: ______________.
RECITALS
A. City and Consultant entered into that certain Contract dated March 6, 2024 for the purpose of providing Surface Mining Inspection Services (“Agreement”) following a Request for Proposal (RFP No.20-029).
B. City and Consultant now desire to amend the Agreement to extend the Term of the Agreement to March 31, 2026 and increase the Contract Sum to Twelve Thousand One Hundred Sixty-Five Dollars ($12,165.00).
The Parties therefore agree follows:
1. Amended Terms. The Agreement is hereby amended as follows:
1.1 The maximum compensation for the Services performed pursuant to this Amendment No. 1 shall not exceed Six Thousand Eighty-Two Dollars and Fifty Cents ($6,082.50) thereby increasing the Contract Sum, as set forth in Section
2.1 of the Agreement, to Twelve Thousand One Hundred Sixty-Five Dollars ($12,165.00).
1.2 The Term of the Agreement, as set forth in Section 3.4 of the Agreement, is hereby extended through March 31, 2026, unless sooner terminated or extended as provided in the Agreement.
2. Miscellaneous Provisions
2.1 Continued Effect of Agreement. Except as amended by this Amendment No. 1, all provisions of the Agreement shall remain unchanged and in full force and effect. From and after the date of this Amendment No. 1, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement, as amended by Amendment No. 1. In the event of a conflict between the provisions 471
of this Amendment No. 1 and the provisions of the Agreement, the provisions of this Amendment No. 1 shall control.
2.2 Consideration for Amendment. The parties hereby agree that they have each received adequate and independent consideration for the modifications to the Agreement set forth in this Amendment No. 1.
2.3 Authority. The persons executing this Amendment No. 1 on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment No. 1 on behalf of said party, (iii) by so executing this Amendment No. 1, such party is formally bound to the provisions of this Amendment No. 1, and (iv) entering into this Amendment No. 1 does not violate any provision of any other agreement to which said party is bound.
2.4 Counterparts. This Amendment No. 1 may be signed in any number of counterparts, each of which will be an original, but all of which together will constitute one instrument.
2.5 Electronic Signatures. Each Party may adopt as its signature an electronic identification consisting of a symbol or code that is affixed to or contained in each document transmitted by such Party (“electronic signature”). The Parties hereto herby agree that electronic signatures are acceptable, shall have the same force and effect under the law as original wet signatures, and shall be sufficient to verify that the Parties have executed this Agreement and such other documents transmitted by the Parties.
[SIGNATURE PAGE FOLLOWS]
472
The Parties are signing this Amendment No. 1 on the date stated in the introductory clause.
CITY OF BANNING CONSULTANT
Douglas Schulze,
City Manager
NAME:
TITLE:
City Council Approval: _______________ NAME:
TITLE:
ATTEST:
Caroline Patton
Administrative City Clerk
APPROVED AS TO FORM:
Richards, Watson & Gershon
Serita R. Young
City Attorney
NOTE: PROOF OF AUTHORITY TO BIND CONTRACTING PARTY REQUIRED.
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE
BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY.
473
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2344655v8
AGREEMENT FOR PROFESSIONAL SERVICES (C00991) FOR
SURFACE SURFACE MINING INSPECTION SERVICES BY AND
BETWEEN CITY OF BANNING AND ARAGON GEOTECHNICAL, 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 ARAGON GEOTECHNICAL, INC., a Nevada 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 No.20-029), the performance of the services for the Surface Mining Inspections 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 DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 3/6/2024
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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, DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1939 475
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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.
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.
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.
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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
Fernando Aragon 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.
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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 DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1942 478
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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 Six Thousand Eighty-Two Dollars and 50 Cents ($6,082.50) (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 DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1943 479
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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 DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1944 480
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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 March 31, 2024, unless sooner terminated as provided in Article 6 of this Agreement or extended as provided in Sections
1.8 and 3.3 of this Agreement. Maximum term and any subsequent amendment or modification shall not exceed two (2) 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 DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1945 481
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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.
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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.
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 DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1948 484
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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 DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1949 485
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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.
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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 DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1951 487
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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.
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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 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 DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1953 489
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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: Adam Rush
Community Development Director
City of Banning
99 East Ramsey Street
Banning, California 92220
Email: [email protected]
With a courtesy copy to: Serita R. Young, City Attorney Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, California 90071
Email: [email protected]
If to Consultant: Attn: Fernando Aragon
President
Aragon Geotechnical, Inc.
16801 Van Buren Blvd, Bldg. B
Riverside, CA 92504
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.
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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 DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1956 492
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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:
16801 Van Buren Blvd, Bldg. B
Riverside, CA 92504
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.
DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 88 3/6/2024
President
Fernando Aragon
3/6/2024
3/6/2024
1958 494
Exhibit “A”-1
11303-0008\2344655v8.doc
EXHIBIT “A”
SCOPE OF SERVICES
I. Consultant will perform the following Services in connection with providing an Annual Surface Mining Inspection prepared in connection therewith.
II. As part of the Services, Consultant shall complete the following tasks:
A. Prepare and deliver the following tangible work products and services to City:
(i) Perform both general and special inspections, in accordance with Section 1 of the 2002 SMBG Surface Mine Inspection Guide (2002 Guide), which includes, but is not limited to, the review of the financial assurance cost estimate of bond calculation approvals and review of the reclamation plan and conditions of approval. (ii) Perform general and special mine inspections in accordance with Section 2 of the 2002 Guide.
(iii) Prepare an inspection report on form MRRC-1, including all recent amendments and revisions and in compliance with Section 3 of the 2002 Guide.
B. Provide the following services in support of the tasks enumerated in Section A:
1. Serve as project manager of the inspection process to ensure that the required inspection(s) and submission of all required communications and reports are completed and submitted to City prior to December 1st of the inspection year.
2. Conduct the City’s annual inspection as required by the Banning Municipal Code and SMARA, which shall review, analyze, and evaluate whether the surface mining operation is in compliance with the (1) approved site and/or reclamation plan, (2) approved financial assurances, and (3) state regulations.
3. Ensure all inspection(s) are made by a professional geologist or geotechnical engineer who retains all appropriate licenses and certifications and holds experience in land reclamation and surface mining activities.
4. Ensure the Consultant and their employees, contractors, or affiliates are not, and have not been, employed by the mining operation in any capacity during the previous twelve (12) months.
5. Conduct all inspection(s) using a form approved and provided by the Division of Mine Reclamation Department of Conservation, as amended and revised.
6. Prepare a comprehensive report (“Report”), addressed to the attention of the City’s Community Development Director or his/her designee, that summarizes the annual inspection. This report shall incorporate all relevant findings, supported by technical analysis, field notes, and site photographs as necessary DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1959 495
Exhibit “A”-2
11303-0008\2344655v8.doc
to support the findings provided. The Consultant is responsible for preparing all applicable forms required under SMARA and the Department of Conservation, inclusive of all amendments thereto to the City in written form on compliance issues, and prepare a written report for the City Council and the Planning Commission and submittal to the State.
7. Attend a total of four (4) meetings with staff and City stakeholders, as needed.
8. Attend at-least one (1) Planning Commission meeting for presentation of report.
9. Submit the inspection report to the Department of Conservation (the “DOC”) on behalf of the City and provide the City with documentation that the report has been submitted and received by the DOC.
C. Incorporate the following project performance milestones in support of the tasks enumerated in Section A:
1. Conduct at-least one (1) comprehensive surface mine inspection on or prior to December 31, 2020. The Consultant shall be responsible for organizing all logistics necessary to conduct this inspection. The Consultant shall communicate to the Community Development Department, and all parties involved, the anticipated time, date, and location in which the inspection will occur. The Community Development Department can provide organizational support and guidance in order to complete this task.
2. No less than ninety (90) days from the completion of the annual surface mine inspection, the Consultant shall submit a complete Screencheck Draft of the Annual Mine Inspection Report to the City for review and comment. The report must be electronically submitted to the City in both Microsoft Word and Adobe PDF formats. Hard copies of the report shall be provided only upon the City’s request and shall be furnished within forty-eight (48) hours of the Consultant’s receipt of this request.
3. Upon receipt of the City’s redline comments and review recommendations, the Consultant shall incorporate all of the City’s comments or provide a written response providing justification for comments not included within the Screencheck Draft report.
4. The Consultant shall resubmit the corrected report, as a Final Administrative Draft, no less than thirty (30) days from the date Consultant received the City’s comments and redlines. A time extension on this deadline shall not be permitted without the express, written justification provided by the City.
5. Consultant shall respond within 24 hours to all communication inquiries, including, but not limited to, voicemails, emails, or other common and acceptable forms of communication.
DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1960 496
Exhibit “A”-3
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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.
DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1961 497
Exhibit “B”-1
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EXHIBIT “B”
SPECIAL REQUIREMENTS
TERMS FOR COMPLIANCE WITH CALIFORNIA LABOR LAW REQUIREMENTS
1. This Agreement calls for services that, in whole or in part, constitute “public works” as defined in Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code (“Chapter 1”). Further, Consultant acknowledges that this Agreement is subject to (a) Chapter 1 and (b) the rules and regulations established by the Department of Industrial Relations (“DIR”) implementing such statutes. Therefore, as to those Services that are “public works,” Consultant shall comply with and be bound by all the terms, rules and regulations described in 1(a) and 1(b) as though set forth in full herein.
2. California law requires the inclusion of specific Labor Code provisions in certain contracts. The inclusion of such specific provisions below, whether or not required by California law, does not alter the meaning or scope of Section 1 above.
3. Consultant shall be registered with the Department of Industrial Relations in accordance with California Labor Code Section 1725.5, and has provided proof of registration to City prior to the Effective Date of this Agreement. Consultant shall not perform work with any subcontractor that is not registered with DIR pursuant to Section 1725.5. Consultant and subcontractors shall maintain their registration with the DIR in effect throughout the duration of this Agreement. If the Consultant or any subcontractor ceases to be registered with DIR at any time during the duration of the project, Consultant shall immediately notify City.
4. Pursuant to Labor Code Section 1771.4, Consultant’s Services are subject to compliance monitoring and enforcement by DIR. Consultant shall post job site notices, as prescribed by DIR regulations.
5. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages for each craft, classification, or type of worker needed to perform the Agreement are on file at City Hall and will be made available to any interested party on request. Consultant acknowledges receipt of a copy of the DIR determination of such prevailing rate of per diem wages, and Consultant shall post such rates at each job site covered by this Agreement.
6. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The Consultant shall, as a penalty to City, forfeit $200.00 for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Consultant or by any subcontractor.
7. Consultant shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Consultant and each subcontractor to: keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776; certify and make such payroll records available for inspection as provided by Section 1776; and inform City of the location of the records.
DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1962 498
Exhibit “B”-2
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8. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6 and 1777.7 and California Administrative Code Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects. Consultant shall be responsible for compliance with these aforementioned Sections for all apprenticeable occupations.
Prior to commencing work under this Agreement, Consultant shall provide City with a copy of the information submitted to any applicable apprenticeship program. Within 60 days after concluding work pursuant to this Agreement, Consultant and each of its subcontractors shall submit to City a verified statement of the journeyman and apprentice hours performed under this Agreement.
9. The Consultant shall not perform Work with any Subcontractor that has been debarred or suspended pursuant to California Labor Code Section 1777.1 or any other federal or state law providing for the debarment of contractors from public works. The Consultant and Subcontractors shall not be debarred or suspended throughout the duration of this Agreement pursuant to Labor Code Section 1777.1 or any other federal or state law providing for the debarment of contractors from public works. If the Consultant or any subcontractor becomes debarred or suspended during the duration of the project, the Consultant shall immediately notify City.
10. Consultant acknowledges that eight hours labor constitutes a legal day’s work.
Consultant shall comply with and be bound by Labor Code Section 1810. Consultant shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The Consultant shall, as a penalty to City, forfeit $25.00 for each worker employed in the performance of this Agreement by the Consultant or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code section 1815, work performed by employees of Consultant in excess of eight hours per day, and 40 hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of eight hours per day at not less than one and one-half times the basic rate of pay.
11. California Labor Code Sections 1860 and 3700 provide that every employer will be required to secure the payment of compensation to its employees. In accordance with the provisions of California Labor Code Section 1861, Consultant hereby certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”
Date______________ Signature___________________________ DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1963 499
Exhibit “B”-3
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12. For every subcontractor who will perform work on the project, Consultant shall be responsible for such subcontractor’s compliance with Chapter 1 and Labor Code Sections 1860 and 3700, and Consultant shall include in the written contract between it and each subcontractor a copy of those statutory provisions and a requirement that each subcontractor shall comply with those statutory provisions. Consultant shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor’s compliance, including, without limitation, conducting a periodic review of the certified payroll records of the subcontractor and upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages. Consultant shall diligently take corrective action to halt or rectify any failure.
DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1964 500
Exhibit “C”-1
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EXHIBIT “C”
SCHEDULE OF COMPENSATION
I. Consultant shall perform the following tasks (“Tasks”) at the following rates:
TASK DESCRIPTION SUB-BUDGET
Annual Surface Mining Inspection
1. Data Acquisition, Field Inspection & Operator Meeting $2,362.50
2. Report & Exhibits Preparation/Office Support $3,180.00 Meeting Budget PER ANNUM (not pre-inspection) $540.00
TOTAL (1 year) $6,082.50
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, with the exception of the Meeting Budget PER ANNUM costs which is superseded by the above-referenced amount.
DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1965 501
Exhibit “C-1”-1
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EXHIBIT “C-1”
CONSULTANT’S BILLING RATE AND TASK SCHEDULE
DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1966 502
Exhibit “D-1”- 1
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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.
DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1967 503
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2344655v8
AGREEMENT FOR PROFESSIONAL SERVICES (C00677) FOR
ANNUAL SURFACE MINING INSPECTION BY AND BETWEEN CITY
OF BANNING AND ARAGON GEOTECHNICAL, 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 ARAGON GEOTECHNICAL, INC., a Nevada 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 No. 20-029), the performance of the services for the Annual Surface Mining Inspection prepared in connection therewith, and as further defined and described particularly in Article 1 of this Agreement.
B. Consultant, following submission of a proposal or bid 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 DocuSign Envelope ID: D9BDFAF3-A77B-4D1E-B0D1-12BC21FB415A 1/25/2021
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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, DocuSign Envelope ID: D9BDFAF3-A77B-4D1E-B0D1-12BC21FB415A 505
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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.
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.
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.
DocuSign Envelope ID: D9BDFAF3-A77B-4D1E-B0D1-12BC21FB415A 506
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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
Fernando Aragon 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.
DocuSign Envelope ID: D9BDFAF3-A77B-4D1E-B0D1-12BC21FB415A 507
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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 DocuSign Envelope ID: D9BDFAF3-A77B-4D1E-B0D1-12BC21FB415A 508
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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 $6,082.50 (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 Agreement. Consultant shall not invoice City for any duplicate Services performed by more than one person.
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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 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.
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3.4 Term.
The Term of this Agreement shall last one (1) year from the Effective Date 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. The maximum term and any subsequent amendment or modification to this Agreement 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 DocuSign Envelope ID: D9BDFAF3-A77B-4D1E-B0D1-12BC21FB415A 511
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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.
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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.
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 DocuSign Envelope ID: D9BDFAF3-A77B-4D1E-B0D1-12BC21FB415A 514
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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 DocuSign Envelope ID: D9BDFAF3-A77B-4D1E-B0D1-12BC21FB415A 515
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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.
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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 DocuSign Envelope ID: D9BDFAF3-A77B-4D1E-B0D1-12BC21FB415A 517
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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.
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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 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.
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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 Adam B. Rush, M.A. AICP
Community Development Director
City of Banning
99 East Ramsey Street
Banning, California 92220
Email: [email protected]
With a courtesy copy to: Kevin G. Ennis, City Attorney
Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, California 90071
Email: [email protected]
If to Consultant: Fernando Aragon
President
Aragon Geotechnical, Inc.
16801 Van Buren Blvd.
Bldg. B
Riverside, CA 92504
Email: [email protected]
8.2 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
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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.
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 DocuSign Envelope ID: D9BDFAF3-A77B-4D1E-B0D1-12BC21FB415A 521
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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 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. [SIGNATURES ON FOLLOWING PAGE]
DocuSign Envelope ID: D9BDFAF3-A77B-4D1E-B0D1-12BC21FB415A 522
-20-
11303-0005\2487702v1.doc
IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first hereinabove written.
CITY OF BANNING CONSULTANT
Douglas Schulze, Date
City Manager
NAME: Date
TITLE:
NAME: Date
TITLE:
ATTEST:
Tax ID No.
Sonja De La Fuente Date
Deputy City Clerk
Address:
APPROVED AS TO FORM:
Richards, Watson & Gershon
City Council Approval: _____________
Kevin G. Ennis, Esq., 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.
DocuSign Envelope ID: D9BDFAF3-A77B-4D1E-B0D1-12BC21FB415A Fernando Aragon
Riverside, CA 92504
88-0376464
16801 Van Buren Blvd. Building B
President
1/21/2021
1/23/2021 NA
1/25/2021
1/25/2021
523
Exhibit “A”-1
11303-0005\2487702v1.doc
EXHIBIT “A”
SCOPE OF SERVICES
I. Consultant will perform the following Services in connection with providing an Annual Surface Mining Inspection.
II. As part of the Services, Consultant shall complete the following tasks:
A. Prepare and deliver the following tangible work products and services to City:
(i) Perform both general and special inspections, in accordance with Section 1 of the 2002 SMBG Surface Mine Inspection Guide (2002 Guide), which includes, but is not limited to, the review of the financial assurance cost estimate of bond calculation approvals and review of the reclamation plan and conditions of approval. (ii) Perform general and special mine inspections in accordance with Section 2 of the 2002 Guide.
(iii) Prepare an inspection report on form MRRC-1, including all recent amendments and revisions and in compliance with Section 3 of the 2002 Guide.
B. Provide the following services in support of the tasks enumerated in Section A:
1. Serve as project manager of the inspection process to ensure that the required inspection(s) and submission of all required communications and reports are completed and submitted to City prior to December 1st of the inspection year.
2. Conduct the City’s annual inspection as required by the Banning Municipal Code and SMARA, which shall review, analyze, and evaluate whether the surface mining operation is in compliance with the (1) approved site and/or reclamation plan, (2) approved financial assurances, and (3) state regulations.
3. Ensure all inspection(s) are made by a professional geologist or geotechnical engineer who retains all appropriate licenses and certifications and holds experience in land reclamation and surface mining activities.
4. Ensure the Consultant and their employees, contractors, or affiliates are not, and have not been, employed by the mining operation in any capacity during the previous twelve (12) months.
5. Conduct all inspection(s) using a form approved and provided by the Division of Mine Reclamation Department of Conservation, as amended and revised.
6. Prepare a comprehensive report (“Report”), addressed to the attention of the City’s Community Development Director or his/her designee, that summarizes the annual inspection. This report shall incorporate all relevant findings, supported by technical analysis, field notes, and site photographs as necessary DocuSign Envelope ID: D9BDFAF3-A77B-4D1E-B0D1-12BC21FB415A 524
Exhibit “A”-2
11303-0005\2487702v1.doc
to support the findings provided. The Consultant is responsible for preparing all applicable forms required under SMARA and the Department of Conservation, inclusive of all amendments thereto to the City in written form on compliance issues, and prepare a written report for the City Council and the Planning Commission and submittal to the State.
7. Attend a total of four (4) meetings with staff and City stakeholders, as needed.
8. Attend at-least one (1) Planning Commission meeting for presentation of report.
9. Submit the inspection report to the Department of Conservation (the “DOC”) on behalf of the City and provide the City with documentation that the report has been submitted and received by the DOC.
C. Incorporate the following project performance milestones in support of the tasks enumerated in Section A:
1. Conduct at-least one (1) comprehensive surface mine inspection on or prior to December 31, 2020. The Consultant shall be responsible for organizing all logistics necessary to conduct this inspection. The Consultant shall communicate to the Community Development Department, and all parties involved, the anticipated time, date, and location in which the inspection will occur. The Community Development Department can provide organizational support and guidance in order to complete this task.
2. No less than ninety (90) days from the completion of the annual surface mine inspection, the Consultant shall submit a complete Screencheck Draft of the Annual Mine Inspection Report to the City for review and comment. The report must be electronically submitted to the City in both Microsoft Word and Adobe PDF formats. Hard copies of the report shall be provided only upon the City’s request and shall be furnished within forty-eight (48) hours of the Consultant’s receipt of this request.
3. Upon receipt of the City’s redline comments and review recommendations, the Consultant shall incorporate all of the City’s comments or provide a written response providing justification for comments not included within the Screencheck Draft report.
4. The Consultant shall resubmit the corrected report, as a Final Administrative Draft, no less than thirty (30) days from the date Consultant received the City’s comments and redlines. A time extension on this deadline shall not be permitted without the express, written justification provided by the City.
5. Consultant shall respond within 24 hours to all communication inquiries, including, but not limited to, voicemails, emails, or other common and acceptable forms of communication.
DocuSign Envelope ID: D9BDFAF3-A77B-4D1E-B0D1-12BC21FB415A 525
Exhibit “A”-3
11303-0005\2487702v1.doc
III. In addition to the requirements of Parts I and II of this Scope of Services, during the performance of the Services, Consultant will keep City appraised through periodic status reports regarding the performance of the Services under this Agreement as set forth below and in Section 5.2, by the following means:
a. In-person meetings, videoconferences and/or teleconferences. b. Email updates/questions between the applicant team and City while reviews are underway.
c. Conference calls.
IV. As provided in Section 1.11 (Corrections) of the Agreement, 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.
DocuSign Envelope ID: D9BDFAF3-A77B-4D1E-B0D1-12BC21FB415A 526
Exhibit “B”-1
11303-0005\2487702v1.doc
EXHIBIT “B”
SPECIAL REQUIREMENTS
None
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Exhibit “C”-1
11303-0005\2487702v1.doc
EXHIBIT “C”
SCHEDULE OF COMPENSATION
I. Consultant shall perform the following tasks (“Tasks”) at the following rates:
TASK DESCRIPTION SUB-BUDGET
Annual Surface Mining Inspection
1. Data Acquisition, Field Inspection & Operator Meeting $2,362.50
2. Report & Exhibits Preparation/Office Support $3,180.00 Meeting Budget PER ANNUM (not pre-inspection) $540.00
TOTAL (1 year) $6,082.50
TOTAL (Projected 5 year) $30,412.50
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 the following:
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 for 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 for the Services.
IV. The total compensation for Services shall not exceed $6,082.50 as provided in Section 2.1 of this Agreement.
V. Consultant’s billing rates for all personnel are attached as Exhibit C-1, with the exception of the Meeting Budget PER ANNUM costs which is superseded by the above-referenced amount.
DocuSign Envelope ID: D9BDFAF3-A77B-4D1E-B0D1-12BC21FB415A 528
Exhibit “C-1”-1
11303-0005\2487702v1.doc
EXHIBIT “C-1”
CONSULTANT’S BILLING RATE AND TASK SCHEDULE
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Exhibit “D-1”- 1
11303-0005\2487702v1.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.
DocuSign Envelope ID: D9BDFAF3-A77B-4D1E-B0D1-12BC21FB415A 530
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Nate Smith, Deputy Director of Public Works/City Engineer Art Vela, Director of Public Works
MEETING DATE: November 12, 2024
SUBJECT: Consideration of Resolution 2024-179, Approving a Subdivision Improvement Agreement with RSI Development Banning, LLC for Tract 36939 and Accepting Performance and Labor and Material Bonds for Public Improvements and Exonerate Existing Bonds Submitted by the Previous Property Owner
RECOMMENDATION:
Adopt Resolution 2024-179.
BACKGROUND:
The City of Banning requires that project owners of subdivisions enter into a Subdivision Improvement Agreement and provide bonds to the City to guarantee the improvements of the associated public improvements required through the project Conditions of Approval. These items are brought to City Council when approval of the Final Maps are considered for recordation.
On October 22, 2019, City Council approved Resolution 2019-133 approving final Tract Map 36939, releasing the map for recordation, authorizing staff to sign the Subdivision Improvement Agreement and Final Tract Map, and accept performance and labor and material bonds for public improvements. With the adoption of the resolution, the map was signed and recorded with the County of Riverside, and the City signed the Subdivision Improvement Agreement and accepted the required bonds. The Subdivision Improvement Agreement with this action has expired.
In the intervening years, the ownership of the property has changed hands to a new entity, RSI Development Banning, LLC. To remain compliant with City of Banning policy, WJK has submitted a new Subdivision Improvement Agreement and associated Performance, Labor and Material Bonds. This subdivision agreement will replace the existing agreement with the previous owner. The new bonds will also replace the current bonds for the project based on updated construction costs.
As of the publishing date of this report, the new developer did not have an anticipated construction start date. The term of the Subdivision Improvement Agreement is valid for 2 years, and may be extended if work in good faith is underway. If work has not started by the expiration of the agreement, a new agreement and updated bonds would be required.
JUSTIFICATION:
The Public Works Department will require that an updated Subdivision Improvement Agreement and related bonds are in place prior to the issuance of any Encroachment Permit on the required public improvements with the project's Conditions of Approval. 531
It is not necessary to have two sets of bonds for the same required public improvement. This action would also release the previous bonds that remain held by the City of Banning.
FISCAL IMPACT:
None. The Subdivision Improvement Agreement and related bonds assure that when the developer begins work on the public improvements, and if the private developer suspends work prior to its completion, the City has a mechanism to complete the work to protect the public interests and safety at the developers expense.
ALTERNATIVES:
Do not adopt Resolution 2024-179 and provide alternate direction to staff.
BUDGETED?:
No
CONTRACT/AGREEMENT:
Yes
ATTACHMENTS:
1. Resolution 2024-179.docx
2. WJK Homes SIA.pdf
3. TR 36939 Improvement Bonds.pdf
4. CC Resolution No. 2019-133.pdf
532
Resolution 2024-179
RESOLUTION 2024-179
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,
APPROVING A SUBDIVISION IMPROVEMENT AGREEMENT WITH RSI DEVELOPMENT BANNING, LLC FOR TRACT 36939 AND ACCEPTING PERFORMANCE AND LABOR AND
MATERIAL BONDS FOR PUBLIC IMPROVEMENTS AND EXONERATING BONDS
SUBMITTED BY PREVIOUS PROPERTY OWNER
WHEREAS, the City of Banning requires subdividers to enter into a Subdivision Improvement Agreement between the Subdivider and the City establishing terms for development and guarantee and security for proposed public improvements; and WHEREAS, City Council approved Resolution 2019-133 on October 22, 2019 authorizing staff to record the final map, execute the Subdivision Improvement Agreement, and accept performance and labor and material bonds for public improvements; and WHEREAS, Ownership of the property has transferred since the approval of Resolution 2019-133, requiring a new Subdivision Improvement Agreement and Performance and Labor and Material Bonds to reflect current ownership; and
WHEREAS, the existing Performance and Labor and Material bonds held by the City of Banning are not necessary as new bonds are provided to reflect current ownership and can be exonerated in full.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
SECTION 1. The City Council approves the Subdivision Improvement Agreement with RSI Development, Banning, LLC, and authorizes the Mayor to execute said agreement.
SECTION 2. The City Council authorizes staff to accept replacement Performance and Labor and Material Bonds, and fully releases the current bonds.
PASSED, APPROVED AND ADOPTED this 12th day of November 2024.
Alberto Sanchez, Mayor
City of Banning
ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
533
Resolution 2024-179
APPROVED AS TO FORM:
Serita R. Young, City Attorney
Richards, Watson & Gershon
534
Resolution 2024-179
CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-179, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 12th day of November 2024 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
535
Resolution 2024-179
EXHIBIT A
Subdivision Improvement Agreement
536
537
538
539
540
541
542
543
544
545
546
547
548
549
550
551
552
553
554
555
556
557
558
559
560
561
562
563
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CITY OF BANNING
FAITHFUL PERFORMANCE BOND
FINAL TRACT MAP NO. 36939
(Name or Tract Number of Subdivision)
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS,__ RSI DEVELOPMENT BANNING, LLC, a Nevada limited liability company (hereinafter designated as “Principal”) has executed a Subdivision Improvement Agreement (“Agreement” herein) with the City of Banning, a municipal corporation of the State of California (“City” herein), whereby Principal agrees to construct, install, complete and guarantee for one year after acceptance thereof, certain designated public improvements generally identified as follows:
; and
WHEREAS, said Agreement is incorporated herein by this reference; and WHEREAS, said Principal is required under the terms of said Agreement to furnish a corporate surety bond or other approved improvement security to guarantee the faithful performance of said Agreement;
NOW, THEREFORE, the Principal designated above, and
, as
Surety, are held and firmly bound unto the City in the penal sum of Two Million Eight Hundred Ninety Five Thousand and Five Hundred and 00/100 ($ 2,895,500.00), lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents.
The condition of this obligation is such that if the above-bounded Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to, abide by, well and truly keep and perform the covenants, conditions and provisions in said Agreement and any modification thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its officers, agents and employees, as therein stipulated; then this obligation shall become void; otherwise, this obligation shall be and remain in full force and effect.
As a part of the obligation secured hereby, and in addition to the face amount specified, costs and reasonable expenses and fees shall be included, including reasonable
STREET IMPROVEMENTS
Lexon Insurance Company, 12890 Lebanon Road, Mt. Juliet, TN 37122 Bond No: LICX1983097
564
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attorneys’ fees, incurred by the City in successfully enforcing the obligation, all to be taxed as costs and included in any judgment rendered.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement, the work to be performed thereunder, or the Improvement Plans and related specifications accompanying the Agreement shall in any manner affect its obligations on this bond. The Surety hereby waives notice of any such change, extension of time, alteration or addition to the terms of the Agreement, the work, or the Improvement Plans and related specifications.
IN WITNESS WHEREOF, this instrument has been duly executed by the above-named Principal and Surety as of the date or dates set forth below the signatures of their authorized officers.
Note: All signatures must be
acknowledged before a notary
public. Attach appropriate
acknowledgment.
“PRINCIPAL”
RSI DEVELOPMENT BANNING, LLC
c/o RSI EQUITY PARTNERS LLC
620 Newport Center Drive, Suite 1200
Newport Beach, California 92660
RSI DEVELOPMENT BANNING LLC,
a Nevada limited liability company
BY: RSI HOMES LLC, a Nevada limited
liability company
By:
Print Name: David Lowrie
Title: Executive Vice President and Chief
Financial Officer
Date: ________________, 2024
specified, costs and reasonable expenses and fees shall be included, including reasonable October 29
565
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(Signatures Continued on Following Page.)
566
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(Signatures Continued From Preceding Page.)
“SURETY”
______________________________
(Type name of Surety)
______________________________
(Street Address)
______________________________
(City) (State) (Zip)
By: __________________________
(Signature of authorized officer)
______________________________
(Title of officer)
Date: ________________________
APPROVED:
_________________________________
City Attorney
Lexon Insurance Company
12890 Lebanon Road
Mt. Juliet, TN 37122
James I. Moore, Attorney-In-Fact
October 29, 2024
567
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CITY OF BANNING
LABOR AND MATERIAL BOND
FINAL TRACT MAP NO. 36939
(Name or Tract Number of Subdivision)
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, RSI DEVELOPMENT BANNING, LLC, (hereinafter designated as “Principal”) has executed a Subdivision Improvement Agreement (“Agreement” herein) with the City of Banning, a municipal corporation of the State of California (“City” herein), whereby Principal agrees to construct, install and complete certain designated public improvements generally identified as follows:
; and
WHEREAS, said Agreement is dated , 2024 and is
incorporated herein by this reference; and
WHEREAS, said Principal is required under the terms of said Agreement, before entering upon the performance of the work, to file with the City a good and sufficient payment bond, or other approved security, to secure the claims to which reference is made in Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the California Civil Code and in Government Code Section 66497; NOW, THEREFORE, the Principal designated above, and
_________________, as Surety, are held firmly bound unto the City and all contractors, subcontractors, laborers, materialmen and other persons employed in the performance of said Agreement and referred to in the above-referenced Civil Code and Government Code in the sum of _Two Million Eight Hundred Ninety Five Thousand and Five Hundred and 00/100__ Dollars ($__________), for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work or labor; that said Surety will pay the same in an amount not exceeding the amount hereinabove set forth; and in case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including reasonable attorneys’ fees, incurred by the City in successfully enforcing such obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered.
It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies and corporations entitled to file claims under Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code, and under Government Code Section 66497, so as to give a right of action to them or their assigns in any suit brought upon this bond.
Bond No: LICX1983097
STREET IMPROVEMENTS
Lexon Insurance Company
2,895,500.00
568
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Should the condition of this bond be fully performed, then this obligation shall become null and void, otherwise it shall be and remain in full force and effect.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of said Agreement or the Improvement Plans or related specifications accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive notice of any such change, extension, alteration or addition.
IN WITNESS WHEREOF, this instrument has been duly executed by the above-named Principal and Surety as of the date or dates set forth below the signatures of their authorized officers.
Note: All signatures must be
acknowledged before a notary
public. Attach appropriate
acknowledgment.
“PRINCIPAL”
RSI DEVELOPMENT BANNING, LLC
c/o RSI EQUITY PARTNERS LLC
620 Newport Center Drive, Suite 1200
Newport Beach, California 92660
RSI DEVELOPMENT BANNING LLC,
a Nevada limited liability company
BY: RSI HOMES LLC, a Nevada limited
liability company
By:
Print Name: David Lowrie
Title: Executive Vice President and Chief
Financial Officer
Date: ________________, 2024 October 29
569
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(Signatures Continued on Following Page.)
570
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(Signatures Continued From Preceding Page.)
“SURETY”
______________________________
(Type name of Surety)
______________________________
(Street Address)
______________________________
(City) (State) (Zip)
By: __________________________
(Signature of authorized officer)
______________________________
(Title of officer)
Date: _________________, 2024
APPROVED:
_________________________________
City Attorney
Lexon Insurance Company
12890 Lebanon Road
Mt. Juliet, TN 37122
James I. Moore, Attorney-In-Fact
October 29
571
STATE OF ILLINOIS
COUNTY OF DUPAGE
On October 29th, 2024, before me, Lisa Marotta, a Notary Public in and for said County and State, residing therein, duly commissioned and sworn, personally appeared, James I.
Moore known to me to be Attorney-in-Fact of Lexon Insurance Company the corporation described in and that executed the within and foregoing instrument, and known to me to be the person who executed the said instrument in behalf of the said corporation, and duly acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year stated in this certificate above.
My Commission Expires, February 7, 2026 _________________________________ Lisa Marotta, Notary Public
Commission No. 946275
572
James I. Moore
29th October 24
RSI Development Banning LLC
City of Banning
LICX1983097
573
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CITY OF BANNING
FAITHFUL PERFORMANCE BOND
FINAL TRACT MAP NO. 36939
(Name or Tract Number of Subdivision)
KNOW ALL MEN BY THESE PRESENTS:
; and
WHEREAS, said Agreement is incorporated herein by this reference; and WHEREAS, said Principal is required under the terms of said Agreement to furnish a corporate surety bond or other approved improvement security to guarantee the faithful performance of said Agreement;
NOW, THEREFORE, the Principal designated above, and
, as
Surety, are held and firmly bound unto the City in the penal sum of One Million Two Hundred Seventy Thousand and 00/100 ($ 1,270,000.00), lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents.
The condition of this obligation is such that if the above-bounded Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to, abide by, well and truly keep and perform the covenants, conditions and provisions in said Agreement and any modification thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its officers, agents and employees, as therein stipulated; then this obligation shall become void; otherwise, this obligation shall be and remain in full force and effect.
As a part of the obligation secured hereby, and in addition to the face amount specified, costs and reasonable expenses and fees shall be included, including reasonable WHEREAS,__ RSI DEVELOPMENT BANNING, LLC, a Nevada limited liability company (hereinafter designated as “Principal”) has executed a Subdivision Improvement Agreement (“Agreement” herein) with the City of Banning, a municipal corporation of the State of California (“City” herein), whereby Principal agrees to construct, install, complete and guarantee for one year after acceptance thereof, certain designated public improvements generally identified as follows: STORM DRAIN Lexon Insurance Company, 12890 Lebanon Road, Mt. Juliet, TN 37122 Bond No: LICX1983098
574
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attorneys’ fees, incurred by the City in successfully enforcing the obligation, all to be taxed as costs and included in any judgment rendered.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement, the work to be performed thereunder, or the Improvement Plans and related specifications accompanying the Agreement shall in any manner affect its obligations on this bond. The Surety hereby waives notice of any such change, extension of time, alteration or addition to the terms of the Agreement, the work, or the Improvement Plans and related specifications.
IN WITNESS WHEREOF, this instrument has been duly executed by the above-named Principal and Surety as of the date or dates set forth below the signatures of their authorized officers.
Note: All signatures must be
acknowledged before a notary
public. Attach appropriate
acknowledgment.
“PRINCIPAL”
RSI DEVELOPMENT BANNING, LLC
c/o RSI EQUITY PARTNERS LLC
620 Newport Center Drive, Suite 1200
Newport Beach, California 92660
RSI DEVELOPMENT BANNING LLC,
a Nevada limited liability company
BY: RSI HOMES LLC, a Nevada limited
liability company
By:
Print Name: David Lowrie
Title: Executive Vice President and Chief
Financial Officer
Date: ________________, 2024 October 29
specified, costs and reasonable expenses and fees shall be included, including reasonable 575
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(Signatures Continued on Following Page.)
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(Signatures Continued From Preceding Page.)
“SURETY”
______________________________
(Type name of Surety)
______________________________
(Street Address)
______________________________
(City) (State) (Zip)
By: __________________________
(Signature of authorized officer)
______________________________
(Title of officer)
Date: ________________________
APPROVED:
_________________________________
City Attorney
Lexon Insurance Company
12890 Lebanon Road
Mt. Juliet, TN 37122
James I. Moore, Attorney-In-Fact
October 29, 2024
577
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CITY OF BANNING
LABOR AND MATERIAL BOND
FINAL TRACT MAP NO. 36939
(Name or Tract Number of Subdivision)
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, RSI DEVELOPMENT BANNING, LLC, (hereinafter designated as “Principal”) has executed a Subdivision Improvement Agreement (“Agreement” herein) with the City of Banning, a municipal corporation of the State of California (“City” herein), whereby Principal agrees to construct, install and complete certain designated public improvements generally identified as follows:
; and
WHEREAS, said Agreement is dated , 2024 and is
incorporated herein by this reference; and
WHEREAS, said Principal is required under the terms of said Agreement, before entering upon the performance of the work, to file with the City a good and sufficient payment bond, or other approved security, to secure the claims to which reference is made in Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the California Civil Code and in Government Code Section 66497; NOW, THEREFORE, the Principal designated above, and
_________________, as Surety, are held firmly bound unto the City and all contractors, subcontractors, laborers, materialmen and other persons employed in the performance of said Agreement and referred to in the above-referenced Civil Code and Government Code in the sum of _One Million Two Hundred Seventy Thousand and 00/100__ Dollars ($__________), for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work or labor; that said Surety will pay the same in an amount not exceeding the amount hereinabove set forth; and in case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including reasonable attorneys’ fees, incurred by the City in successfully enforcing such obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered.
It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies and corporations entitled to file claims under Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code, and under Government Code Section 66497, so as to give a right of action to them or their assigns in any suit brought upon this bond.
Bond No: LICX1983098
STORM DRAIN
Lexon Insurance Company
1,270,000.00
578
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Should the condition of this bond be fully performed, then this obligation shall become null and void, otherwise it shall be and remain in full force and effect.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of said Agreement or the Improvement Plans or related specifications accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive notice of any such change, extension, alteration or addition.
IN WITNESS WHEREOF, this instrument has been duly executed by the above-named Principal and Surety as of the date or dates set forth below the signatures of their authorized officers.
Note: All signatures must be
acknowledged before a notary
public. Attach appropriate
acknowledgment.
“PRINCIPAL”
RSI DEVELOPMENT BANNING, LLC
c/o RSI EQUITY PARTNERS LLC
620 Newport Center Drive, Suite 1200
Newport Beach, California 92660
RSI DEVELOPMENT BANNING LLC,
a Nevada limited liability company
BY: RSI HOMES LLC, a Nevada limited
liability company
By:
Print Name: David Lowrie
Title: Executive Vice President and Chief
Financial Officer
Date: ________________, 2024 October 29
579
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(Signatures Continued on Following Page.)
580
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(Signatures Continued From Preceding Page.)
“SURETY”
______________________________
(Type name of Surety)
______________________________
(Street Address)
______________________________
(City) (State) (Zip)
By: __________________________
(Signature of authorized officer)
______________________________
(Title of officer)
Date: _________________, 2024
APPROVED:
_________________________________
City Attorney
Lexon Insurance Company
12890 Lebanon Road
Mt. Juliet, TN 37122
James I. Moore, Attorney-In-Fact
October 29
581
STATE OF ILLINOIS
COUNTY OF DUPAGE
On October 29th, 2024, before me, Lisa Marotta, a Notary Public in and for said County and State, residing therein, duly commissioned and sworn, personally appeared, James I.
Moore known to me to be Attorney-in-Fact of Lexon Insurance Company the corporation described in and that executed the within and foregoing instrument, and known to me to be the person who executed the said instrument in behalf of the said corporation, and duly acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year stated in this certificate above.
My Commission Expires, February 7, 2026 _________________________________ Lisa Marotta, Notary Public
Commission No. 946275
582
James I. Moore
29th October 24
RSI Development Banning LLC
City of Banning
LICX1983098
583
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CITY OF BANNING
FAITHFUL PERFORMANCE BOND
FINAL TRACT MAP NO. 36939
(Name or Tract Number of Subdivision)
KNOW ALL MEN BY THESE PRESENTS:
; and
WHEREAS, said Agreement is incorporated herein by this reference; and WHEREAS, said Principal is required under the terms of said Agreement to furnish a corporate surety bond or other approved improvement security to guarantee the faithful performance of said Agreement;
NOW, THEREFORE, the Principal designated above, and
, as
Surety, are held and firmly bound unto the City in the penal sum of Fifteen Thousand and 00/100 ($ 15,000.00), lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents.
The condition of this obligation is such that if the above-bounded Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to, abide by, well and truly keep and perform the covenants, conditions and provisions in said Agreement and any modification thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its officers, agents and employees, as therein stipulated; then this obligation shall become void; otherwise, this obligation shall be and remain in full force and effect.
As a part of the obligation secured hereby, and in addition to the face amount specified, costs and reasonable expenses and fees shall be included, including reasonable WHEREAS,__ RSI DEVELOPMENT BANNING, LLC, a Nevada limited liability company (hereinafter designated as “Principal”) has executed a Subdivision Improvement Agreement (“Agreement” herein) with the City of Banning, a municipal corporation of the State of California (“City” herein), whereby Principal agrees to construct, install, complete and guarantee for one year after acceptance thereof, certain designated public improvements generally identified as follows: PRECISE GRADING Lexon Insurance Company, 12890 Lebanon Road, Mt. Juliet, TN 37122 Bond No: LICX1983099
584
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attorneys’ fees, incurred by the City in successfully enforcing the obligation, all to be taxed as costs and included in any judgment rendered.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement, the work to be performed thereunder, or the Improvement Plans and related specifications accompanying the Agreement shall in any manner affect its obligations on this bond. The Surety hereby waives notice of any such change, extension of time, alteration or addition to the terms of the Agreement, the work, or the Improvement Plans and related specifications.
IN WITNESS WHEREOF, this instrument has been duly executed by the above-named Principal and Surety as of the date or dates set forth below the signatures of their authorized officers.
Note: All signatures must be
acknowledged before a notary
public. Attach appropriate
acknowledgment.
“PRINCIPAL”
RSI DEVELOPMENT BANNING, LLC
c/o RSI EQUITY PARTNERS LLC
620 Newport Center Drive, Suite 1200
Newport Beach, California 92660
RSI DEVELOPMENT BANNING LLC,
a Nevada limited liability company
BY: RSI HOMES LLC, a Nevada limited
liability company
By:
Print Name: David Lowrie
Title: Executive Vice President and Chief
Financial Officer
Date: ________________, 2024 October 29
specified, costs and reasonable expenses and fees shall be included, including reasonable 585
508264067.1508264067.2
11303-0011\2212200v1.doc
(Signatures Continued on Following Page.)
586
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(Signatures Continued From Preceding Page.)
“SURETY”
______________________________
(Type name of Surety)
______________________________
(Street Address)
______________________________
(City) (State) (Zip)
By: __________________________
(Signature of authorized officer)
______________________________
(Title of officer)
Date: ________________________
APPROVED:
_________________________________
City Attorney
Lexon Insurance Company
12890 Lebanon Road
Mt. Juliet, TN 37122
James I. Moore, Attorney-In-Fact
October 29, 2024
587
508264067.1508264067.2
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CITY OF BANNING
LABOR AND MATERIAL BOND
FINAL TRACT MAP NO. 36939
(Name or Tract Number of Subdivision)
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, RSI DEVELOPMENT BANNING, LLC, (hereinafter designated as “Principal”) has executed a Subdivision Improvement Agreement (“Agreement” herein) with the City of Banning, a municipal corporation of the State of California (“City” herein), whereby Principal agrees to construct, install and complete certain designated public improvements generally identified as follows:
; and
WHEREAS, said Agreement is dated , 2024 and is
incorporated herein by this reference; and
WHEREAS, said Principal is required under the terms of said Agreement, before entering upon the performance of the work, to file with the City a good and sufficient payment bond, or other approved security, to secure the claims to which reference is made in Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the California Civil Code and in Government Code Section 66497; NOW, THEREFORE, the Principal designated above, and
_________________, as Surety, are held firmly bound unto the City and all contractors, subcontractors, laborers, materialmen and other persons employed in the performance of said Agreement and referred to in the above-referenced Civil Code and Government Code in the sum of _Fifteen Thousand and 00/100__ Dollars ($__________), for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work or labor; that said Surety will pay the same in an amount not exceeding the amount hereinabove set forth; and in case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including reasonable attorneys’ fees, incurred by the City in successfully enforcing such obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered.
It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies and corporations entitled to file claims under Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code, and under Government Code Section 66497, so as to give a right of action to them or their assigns in any suit brought upon this bond.
Bond No: LICX1983099
PRECISE GRADING
Lexon Insurance Company
15,000.00
588
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Should the condition of this bond be fully performed, then this obligation shall become null and void, otherwise it shall be and remain in full force and effect.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of said Agreement or the Improvement Plans or related specifications accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive notice of any such change, extension, alteration or addition.
IN WITNESS WHEREOF, this instrument has been duly executed by the above-named Principal and Surety as of the date or dates set forth below the signatures of their authorized officers.
Note: All signatures must be
acknowledged before a notary
public. Attach appropriate
acknowledgment.
“PRINCIPAL”
RSI DEVELOPMENT BANNING, LLC
c/o RSI EQUITY PARTNERS LLC
620 Newport Center Drive, Suite 1200
Newport Beach, California 92660
RSI DEVELOPMENT BANNING LLC,
a Nevada limited liability company
BY: RSI HOMES LLC, a Nevada limited
liability company
By:
Print Name: David Lowrie
Title: Executive Vice President and Chief
Financial Officer
Date: ________________, 2024 October 29
589
508264067.1508264067.2
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(Signatures Continued on Following Page.)
590
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11303-0011\2212200v1.doc
(Signatures Continued From Preceding Page.)
“SURETY”
______________________________
(Type name of Surety)
______________________________
(Street Address)
______________________________
(City) (State) (Zip)
By: __________________________
(Signature of authorized officer)
______________________________
(Title of officer)
Date: _________________, 2024
APPROVED:
_________________________________
City Attorney
Lexon Insurance Company
12890 Lebanon Road
Mt. Juliet, TN 37122
James I. Moore, Attorney-In-Fact
October 29
591
STATE OF ILLINOIS
COUNTY OF DUPAGE
On October 29th, 2024, before me, Lisa Marotta, a Notary Public in and for said County and State, residing therein, duly commissioned and sworn, personally appeared, James I.
Moore known to me to be Attorney-in-Fact of Lexon Insurance Company the corporation described in and that executed the within and foregoing instrument, and known to me to be the person who executed the said instrument in behalf of the said corporation, and duly acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year stated in this certificate above.
My Commission Expires, February 7, 2026 _________________________________ Lisa Marotta, Notary Public
Commission No. 946275
592
James I. Moore
29th October 24
RSI Development Banning LLC
City of Banning
LICX1983099
593
508264067.1508264067.2
11303-0011\2212200v1.doc
CITY OF BANNING
FAITHFUL PERFORMANCE BOND
FINAL TRACT MAP NO. 36939
(Name or Tract Number of Subdivision)
KNOW ALL MEN BY THESE PRESENTS:
; and
WHEREAS, said Agreement is incorporated herein by this reference; and WHEREAS, said Principal is required under the terms of said Agreement to furnish a corporate surety bond or other approved improvement security to guarantee the faithful performance of said Agreement;
NOW, THEREFORE, the Principal designated above, and
, as
Surety, are held and firmly bound unto the City in the penal sum of Eighteen Thousand and 00/100 ($ 18,000.00), lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents.
The condition of this obligation is such that if the above-bounded Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to, abide by, well and truly keep and perform the covenants, conditions and provisions in said Agreement and any modification thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its officers, agents and employees, as therein stipulated; then this obligation shall become void; otherwise, this obligation shall be and remain in full force and effect.
As a part of the obligation secured hereby, and in addition to the face amount specified, costs and reasonable expenses and fees shall be included, including reasonable WHEREAS,__ RSI DEVELOPMENT BANNING, LLC, a Nevada limited liability company (hereinafter designated as “Principal”) has executed a Subdivision Improvement Agreement (“Agreement” herein) with the City of Banning, a municipal corporation of the State of California (“City” herein), whereby Principal agrees to construct, install, complete and guarantee for one year after acceptance thereof, certain designated public improvements generally identified as follows: TRAFFIC
Lexon Insurance Company, 12890 Lebanon Road, Mt. Juliet, TN 37122 Bond No: LICX1983100
594
508264067.1508264067.2
11303-0011\2212200v1.doc
attorneys’ fees, incurred by the City in successfully enforcing the obligation, all to be taxed as costs and included in any judgment rendered.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement, the work to be performed thereunder, or the Improvement Plans and related specifications accompanying the Agreement shall in any manner affect its obligations on this bond. The Surety hereby waives notice of any such change, extension of time, alteration or addition to the terms of the Agreement, the work, or the Improvement Plans and related specifications.
IN WITNESS WHEREOF, this instrument has been duly executed by the above-named Principal and Surety as of the date or dates set forth below the signatures of their authorized officers.
Note: All signatures must be
acknowledged before a notary
public. Attach appropriate
acknowledgment.
“PRINCIPAL”
RSI DEVELOPMENT BANNING, LLC
c/o RSI EQUITY PARTNERS LLC
620 Newport Center Drive, Suite 1200
Newport Beach, California 92660
RSI DEVELOPMENT BANNING LLC,
a Nevada limited liability company
BY: RSI HOMES LLC, a Nevada limited
liability company
By:
Print Name: David Lowrie
Title: Executive Vice President and Chief
Financial Officer
Date: ________________, 2024 October 29
specified, costs and reasonable expenses and fees shall be included, including reasonable 595
508264067.1508264067.2
11303-0011\2212200v1.doc
(Signatures Continued on Following Page.)
596
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11303-0011\2212200v1.doc
(Signatures Continued From Preceding Page.)
“SURETY”
______________________________
(Type name of Surety)
______________________________
(Street Address)
______________________________
(City) (State) (Zip)
By: __________________________
(Signature of authorized officer)
______________________________
(Title of officer)
Date: ________________________
APPROVED:
_________________________________
City Attorney
Lexon Insurance Company
12890 Lebanon Road
Mt. Juliet, TN 37122
James I. Moore, Attorney-In-Fact
October 29, 2024
597
508264067.1508264067.2
11303-0011\2212200v1.doc
CITY OF BANNING
LABOR AND MATERIAL BOND
FINAL TRACT MAP NO. 36939
(Name or Tract Number of Subdivision)
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, RSI DEVELOPMENT BANNING, LLC, (hereinafter designated as “Principal”) has executed a Subdivision Improvement Agreement (“Agreement” herein) with the City of Banning, a municipal corporation of the State of California (“City” herein), whereby Principal agrees to construct, install and complete certain designated public improvements generally identified as follows:
; and
WHEREAS, said Agreement is dated , 2024 and is
incorporated herein by this reference; and
WHEREAS, said Principal is required under the terms of said Agreement, before entering upon the performance of the work, to file with the City a good and sufficient payment bond, or other approved security, to secure the claims to which reference is made in Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the California Civil Code and in Government Code Section 66497; NOW, THEREFORE, the Principal designated above, and
_________________, as Surety, are held firmly bound unto the City and all contractors, subcontractors, laborers, materialmen and other persons employed in the performance of said Agreement and referred to in the above-referenced Civil Code and Government Code in the sum of _Eighteen Thousand and 00/100__ Dollars ($__________), for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work or labor; that said Surety will pay the same in an amount not exceeding the amount hereinabove set forth; and in case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including reasonable attorneys’ fees, incurred by the City in successfully enforcing such obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered.
It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies and corporations entitled to file claims under Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code, and under Government Code Section 66497, so as to give a right of action to them or their assigns in any suit brought upon this bond.
Bond No: LICX1983100
TRAFFIC
Lexon Insurance Company
18,000.00
598
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Should the condition of this bond be fully performed, then this obligation shall become null and void, otherwise it shall be and remain in full force and effect.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of said Agreement or the Improvement Plans or related specifications accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive notice of any such change, extension, alteration or addition.
IN WITNESS WHEREOF, this instrument has been duly executed by the above-named Principal and Surety as of the date or dates set forth below the signatures of their authorized officers.
Note: All signatures must be
acknowledged before a notary
public. Attach appropriate
acknowledgment.
“PRINCIPAL”
RSI DEVELOPMENT BANNING, LLC
c/o RSI EQUITY PARTNERS LLC
620 Newport Center Drive, Suite 1200
Newport Beach, California 92660
RSI DEVELOPMENT BANNING LLC,
a Nevada limited liability company
BY: RSI HOMES LLC, a Nevada limited
liability company
By:
Print Name: David Lowrie
Title: Executive Vice President and Chief
Financial Officer
Date: ________________, 2024 October 29
599
508264067.1508264067.2
11303-0011\2212200v1.doc
(Signatures Continued on Following Page.)
600
508264067.1508264067.2
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(Signatures Continued From Preceding Page.)
“SURETY”
______________________________
(Type name of Surety)
______________________________
(Street Address)
______________________________
(City) (State) (Zip)
By: __________________________
(Signature of authorized officer)
______________________________
(Title of officer)
Date: _________________, 2024
APPROVED:
_________________________________
City Attorney
Lexon Insurance Company
12890 Lebanon Road
Mt. Juliet, TN 37122
James I. Moore, Attorney-In-Fact
October 29
601
STATE OF ILLINOIS
COUNTY OF DUPAGE
On October 29th, 2024, before me, Lisa Marotta, a Notary Public in and for said County and State, residing therein, duly commissioned and sworn, personally appeared, James I.
Moore known to me to be Attorney-in-Fact of Lexon Insurance Company the corporation described in and that executed the within and foregoing instrument, and known to me to be the person who executed the said instrument in behalf of the said corporation, and duly acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year stated in this certificate above.
My Commission Expires, February 7, 2026 _________________________________ Lisa Marotta, Notary Public
Commission No. 946275
602
James I. Moore
29th October 24
RSI Development Banning LLC
City of Banning
LICX1983100
603
508264067.1508264067.2
11303-0011\2212200v1.doc
CITY OF BANNING
FAITHFUL PERFORMANCE BOND
FINAL TRACT MAP NO. 36939
(Name or Tract Number of Subdivision)
; and
WHEREAS, said Agreement is incorporated herein by this reference; and WHEREAS, said Principal is required under the terms of said Agreement to furnish a corporate surety bond or other approved improvement security to guarantee the faithful performance of said Agreement;
NOW, THEREFORE, the Principal designated above, and
, as
Surety, are held and firmly bound unto the City in the penal sum of Eight Hundred Fourteen Thousand Five Hundred and 00/100 ($ 814,500.00), lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents.
The condition of this obligation is such that if the above-bounded Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to, abide by, well and truly keep and perform the covenants, conditions and provisions in said Agreement and any modification thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its officers, agents and employees, as therein stipulated; then this obligation shall become void; otherwise, this obligation shall be and remain in full force and effect.
As a part of the obligation secured hereby, and in addition to the face amount specified, costs and reasonable expenses and fees shall be included, including reasonable KNOW ALL MEN BY THESE PRESENTS:
WHEREAS,__ RSI DEVELOPMENT BANNING, LLC, a Nevada limited liability company (hereinafter designated as “Principal”) has executed a Subdivision Improvement Agreement (“Agreement” herein) with the City of Banning, a municipal corporation of the State of California (“City” herein), whereby Principal agrees to construct, install, complete and guarantee for one year after acceptance thereof, certain designated public improvements generally identified as follows: POTABLE WATER Lexon Insurance Company, 12890 Lebanon Road, Mt. Juliet, TN 37122 Bond No: LICX1983101
604
508264067.1508264067.2
11303-0011\2212200v1.doc
attorneys’ fees, incurred by the City in successfully enforcing the obligation, all to be taxed as costs and included in any judgment rendered.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement, the work to be performed thereunder, or the Improvement Plans and related specifications accompanying the Agreement shall in any manner affect its obligations on this bond. The Surety hereby waives notice of any such change, extension of time, alteration or addition to the terms of the Agreement, the work, or the Improvement Plans and related specifications.
IN WITNESS WHEREOF, this instrument has been duly executed by the above-named Principal and Surety as of the date or dates set forth below the signatures of their authorized officers.
Note: All signatures must be
acknowledged before a notary
public. Attach appropriate
acknowledgment.
“PRINCIPAL”
RSI DEVELOPMENT BANNING, LLC
c/o RSI EQUITY PARTNERS LLC
620 Newport Center Drive, Suite 1200
Newport Beach, California 92660
RSI DEVELOPMENT BANNING LLC,
a Nevada limited liability company
BY: RSI HOMES LLC, a Nevada limited
liability company
By:
Print Name: David Lowrie
Title: Executive Vice President and Chief
Financial Officer
Date: ________________, 2024 October 29
specified, costs and reasonable expenses and fees shall be included, including reasonable 605
508264067.1508264067.2
11303-0011\2212200v1.doc
(Signatures Continued on Following Page.)
606
508264067.1508264067.2
11303-0011\2212200v1.doc
(Signatures Continued From Preceding Page.)
“SURETY”
______________________________
(Type name of Surety)
______________________________
(Street Address)
______________________________
(City) (State) (Zip)
By: __________________________
(Signature of authorized officer)
______________________________
(Title of officer)
Date: ________________________
APPROVED:
_________________________________
City Attorney
Lexon Insurance Company
12890 Lebanon Road
Mt. Juliet, TN 37122
James I. Moore, Attorney-In-Fact
October 29, 2024
607
508264067.1508264067.2
11303-0011\2212200v1.doc
CITY OF BANNING
LABOR AND MATERIAL BOND
FINAL TRACT MAP NO. 36939
(Name or Tract Number of Subdivision)
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, RSI DEVELOPMENT BANNING, LLC, (hereinafter designated as “Principal”) has executed a Subdivision Improvement Agreement (“Agreement” herein) with the City of Banning, a municipal corporation of the State of California (“City” herein), whereby Principal agrees to construct, install and complete certain designated public improvements generally identified as follows:
; and
WHEREAS, said Agreement is dated , 2024 and is
incorporated herein by this reference; and
WHEREAS, said Principal is required under the terms of said Agreement, before entering upon the performance of the work, to file with the City a good and sufficient payment bond, or other approved security, to secure the claims to which reference is made in Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the California Civil Code and in Government Code Section 66497; NOW, THEREFORE, the Principal designated above, and
_________________, as Surety, are held firmly bound unto the City and all contractors, subcontractors, laborers, materialmen and other persons employed in the performance of said Agreement and referred to in the above-referenced Civil Code and Government Code in the sum of _Eight Hundred Fourteen Thousand Five Hundred and 00/100 Dollars ($__________), for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work or labor; that said Surety will pay the same in an amount not exceeding the amount hereinabove set forth; and in case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including reasonable attorneys’ fees, incurred by the City in successfully enforcing such obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered.
It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies and corporations entitled to file claims under Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code, and under Government Code Section 66497, so as to give a right of action to them or their assigns in any suit brought upon this bond.
Bond No: LICX1983101
POTABLE WATER
Lexon Insurance Company
814,500.00
608
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Should the condition of this bond be fully performed, then this obligation shall become null and void, otherwise it shall be and remain in full force and effect.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of said Agreement or the Improvement Plans or related specifications accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive notice of any such change, extension, alteration or addition.
IN WITNESS WHEREOF, this instrument has been duly executed by the above-named Principal and Surety as of the date or dates set forth below the signatures of their authorized officers.
Note: All signatures must be
acknowledged before a notary
public. Attach appropriate
acknowledgment.
“PRINCIPAL”
RSI DEVELOPMENT BANNING, LLC
c/o RSI EQUITY PARTNERS LLC
620 Newport Center Drive, Suite 1200
Newport Beach, California 92660
RSI DEVELOPMENT BANNING LLC,
a Nevada limited liability company
BY: RSI HOMES LLC, a Nevada limited
liability company
By:
Print Name: David Lowrie
Title: Executive Vice President and Chief
Financial Officer
Date: ________________, 2024 October 29
609
508264067.1508264067.2
11303-0011\2212200v1.doc
(Signatures Continued on Following Page.)
610
508264067.1508264067.2
11303-0011\2212200v1.doc
(Signatures Continued From Preceding Page.)
“SURETY”
______________________________
(Type name of Surety)
______________________________
(Street Address)
______________________________
(City) (State) (Zip)
By: __________________________
(Signature of authorized officer)
______________________________
(Title of officer)
Date: _________________, 2024
APPROVED:
_________________________________
City Attorney
Lexon Insurance Company
12890 Lebanon Road
Mt. Juliet, TN 37122
James I. Moore, Attorney-In-Fact
October 29
611
STATE OF ILLINOIS
COUNTY OF DUPAGE
On October 29th, 2024, before me, Lisa Marotta, a Notary Public in and for said County and State, residing therein, duly commissioned and sworn, personally appeared, James I.
Moore known to me to be Attorney-in-Fact of Lexon Insurance Company the corporation described in and that executed the within and foregoing instrument, and known to me to be the person who executed the said instrument in behalf of the said corporation, and duly acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year stated in this certificate above.
My Commission Expires, February 7, 2026 _________________________________ Lisa Marotta, Notary Public
Commission No. 946275
612
James I. Moore
29th October 24
RSI Development Banning LLC
City of Banning
LICX1983101
613
CITY OF BANNING
FAITHFUL PERFORMANCE BOND
FINAL TRACT MAP NO. 36939
(Name or Tract Number of Subdivision)
; and
WHEREAS, said Agreement is incorporated herein by this reference; and WHEREAS, said Principal is required under the terms of said Agreement to furnish a corporate surety bond or other approved improvement security to guarantee the faithful performance of said Agreement;
NOW, THEREFORE, the Principal designated above, and
, as
Surety, are held and firmly bound unto the City in the penal sum of One Million Forty One Thousand and 00/100 ($ 1,041,000.00), lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents.
The condition of this obligation is such that if the above-bounded Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to, abide by, well and truly keep and perform the covenants, conditions and provisions in said Agreement and any modification thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its officers, agents and employees, as therein stipulated; then this obligation shall become void; otherwise, this obligation shall be and remain in full force and effect.
As a part of the obligation secured hereby, and in addition to the face amount specified, costs and reasonable expenses and fees shall be included, including reasonabl KNOW ALL MEN BY THESE PRESENTS:
WHEREAS,__ RSI DEVELOPMENT BANNING, LLC, a Nevada limited liability company (hereinafter designated as “Principal”) has executed a Subdivision Improvement Agreement (“Agreement” herein) with the City of Banning, a municipal corporation of the State of California (“City” herein), whereby Principal agrees to construct, install, complete and guarantee for one year after acceptance thereof, certain designated public improvements generally identified as follows: SEWER
Lexon Insurance Company, 12890 Lebanon Road, Mt. Juliet, TN 37122 Bond No: LICX1983102
11303-0011/2212200v1.doc
508264067.1508264067.2
614
508264067.1508264067.2
11303-0011\2212200v1.doc
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement, the work to be performed thereunder, or the Improvement Plans and related specifications accompanying the Agreement shall in any manner affect its obligations on this bond. The Surety hereby waives notice of any such change, extension of time, alteration or addition to the terms of the Agreement, the work, or the Improvement Plans and related specifications.
IN WITNESS WHEREOF, this instrument has been duly executed by the above-named Principal and Surety as of the date or dates set forth below the signatures of their authorized officers.
Note: All signatures must be
acknowledged before a notary
public. Attach appropriate
acknowledgment.
“PRINCIPAL”
RSI DEVELOPMENT BANNING, LLC
c/o RSI EQUITY PARTNERS LLC
620 Newport Center Drive, Suite 1200
Newport Beach, California 92660
RSI DEVELOPMENT BANNING LLC,
a Nevada limited liability company
BY: RSI HOMES LLC, a Nevada limited
liability company
By:
Print Name: David Lowrie
Title: Executive Vice President and Chief
Financial Officer
Date: ________________, 2024 October 29
1specified, costs and reasonable expenses and fees shall be included, including reasonable .attorneys’ fees, incurred by the City in successfully enforcing the obligation, all to be taxed as costs and included in any judgment rendered. 615
508264067.1508264067.2
11303-0011\2212200v1.doc
(Signatures Continued on Following Page.)
616
508264067.1508264067.2
11303-0011\2212200v1.doc
(Signatures Continued From Preceding Page.)
“SURETY”
______________________________
(Type name of Surety)
______________________________
(Street Address)
______________________________
(City) (State) (Zip)
By: __________________________
(Signature of authorized officer)
______________________________
(Title of officer)
Date: ________________________
APPROVED:
_________________________________
City Attorney
Lexon Insurance Company
12890 Lebanon Road
Mt. Juliet, TN 37122
James I. Moore, Attorney-In-Fact
October 29, 2024
617
508264067.1508264067.2
11303-0011\2212200v1.doc
CITY OF BANNING
LABOR AND MATERIAL BOND
FINAL TRACT MAP NO. 36939
(Name or Tract Number of Subdivision)
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, RSI DEVELOPMENT BANNING, LLC, (hereinafter designated as “Principal”) has executed a Subdivision Improvement Agreement (“Agreement” herein) with the City of Banning, a municipal corporation of the State of California (“City” herein), whereby Principal agrees to construct, install and complete certain designated public improvements generally identified as follows:
; and
WHEREAS, said Agreement is dated , 2024 and is
incorporated herein by this reference; and
WHEREAS, said Principal is required under the terms of said Agreement, before entering upon the performance of the work, to file with the City a good and sufficient payment bond, or other approved security, to secure the claims to which reference is made in Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the California Civil Code and in Government Code Section 66497; NOW, THEREFORE, the Principal designated above, and
_________________, as Surety, are held firmly bound unto the City and all contractors, subcontractors, laborers, materialmen and other persons employed in the performance of said Agreement and referred to in the above-referenced Civil Code and Government Code in the sum of _One Million Forty One Thousand and 00/100 Dollars ($__________), for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work or labor; that said Surety will pay the same in an amount not exceeding the amount hereinabove set forth; and in case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including reasonable attorneys’ fees, incurred by the City in successfully enforcing such obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered.
It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies and corporations entitled to file claims under Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code, and under Government Code Section 66497, so as to give a right of action to them or their assigns in any suit brought upon this bond.
Bond No: LICX1983102
SEWER
Lexon Insurance Company
1,041,000.00
618
508264067.1508264067.2
11303-0011\2212200v1.doc
Should the condition of this bond be fully performed, then this obligation shall become null and void, otherwise it shall be and remain in full force and effect.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of said Agreement or the Improvement Plans or related specifications accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive notice of any such change, extension, alteration or addition.
IN WITNESS WHEREOF, this instrument has been duly executed by the above-named Principal and Surety as of the date or dates set forth below the signatures of their authorized officers.
Note: All signatures must be
acknowledged before a notary
public. Attach appropriate
acknowledgment.
“PRINCIPAL”
RSI DEVELOPMENT BANNING, LLC
c/o RSI EQUITY PARTNERS LLC
620 Newport Center Drive, Suite 1200
Newport Beach, California 92660
RSI DEVELOPMENT BANNING LLC,
a Nevada limited liability company
BY: RSI HOMES LLC, a Nevada limited
liability company
By:
Print Name: David Lowrie
Title: Executive Vice President and Chief
Financial Officer
Date: ________________, 2024 October 29
619
508264067.1508264067.2
11303-0011\2212200v1.doc
(Signatures Continued on Following Page.)
620
508264067.1508264067.2
11303-0011\2212200v1.doc
(Signatures Continued From Preceding Page.)
“SURETY”
______________________________
(Type name of Surety)
______________________________
(Street Address)
______________________________
(City) (State) (Zip)
By: __________________________
(Signature of authorized officer)
______________________________
(Title of officer)
Date: _________________, 2024
APPROVED:
_________________________________
City Attorney
Lexon Insurance Company
12890 Lebanon Road
Mt. Juliet, TN 37122
James I. Moore, Attorney-In-Fact
October 29
621
STATE OF ILLINOIS
COUNTY OF DUPAGE
On October 29th, 2024, before me, Lisa Marotta, a Notary Public in and for said County and State, residing therein, duly commissioned and sworn, personally appeared, James I.
Moore known to me to be Attorney-in-Fact of Lexon Insurance Company the corporation described in and that executed the within and foregoing instrument, and known to me to be the person who executed the said instrument in behalf of the said corporation, and duly acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year stated in this certificate above.
My Commission Expires, February 7, 2026 _________________________________ Lisa Marotta, Notary Public
Commission No. 946275
622
James I. Moore
RSI Development Banning LLC
City of Banning
LICX1983102
29th October 24
623
508264067.1508264067.2
11303-0011\2212200v1.doc
CITY OF BANNING
FAITHFUL PERFORMANCE BOND
FINAL TRACT MAP NO. 36939
(Name or Tract Number of Subdivision)
KNOW ALL MEN BY THESE PRESENTS:
; and
WHEREAS, said Agreement is incorporated herein by this reference; and WHEREAS, said Principal is required under the terms of said Agreement to furnish a corporate surety bond or other approved improvement security to guarantee the faithful performance of said Agreement;
NOW, THEREFORE, the Principal designated above, and
, as
Surety, are held and firmly bound unto the City in the penal sum of One Hundred Ninety Eight Thousand Five Hundred and 00/100 ($ 198,500.00), lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents.
The condition of this obligation is such that if the above-bounded Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to, abide by, well and truly keep and perform the covenants, conditions and provisions in said Agreement and any modification thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its officers, agents and employees, as therein stipulated; then this obligation shall become void; otherwise, this obligation shall be and remain in full force and effect.
As a part of the obligation secured hereby, and in addition to the face amount WHEREAS,__ RSI DEVELOPMENT BANNING, LLC, a Nevada limited liability company (hereinafter designated as “Principal”) has executed a Subdivision Improvement Agreement (“Agreement” herein) with the City of Banning, a municipal corporation of the State of California (“City” herein), whereby Principal agrees to construct, install, complete and guarantee for one year after acceptance thereof, certain designated public improvements generally identified as follows: EROSION
Lexon Insurance Company, 12890 Lebanon Road, Mt. Juliet, TN 37122 Bond No: LICX1983103
624
508264067.1508264067.2
11303-0011\2212200v1.doc
attorneys’ fees, incurred by the City in successfully enforcing the obligation, all to be taxed as costs and included in any judgment rendered.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement, the work to be performed thereunder, or the Improvement Plans and related specifications accompanying the Agreement shall in any manner affect its obligations on this bond. The Surety hereby waives notice of any such change, extension of time, alteration or addition to the terms of the Agreement, the work, or the Improvement Plans and related specifications.
IN WITNESS WHEREOF, this instrument has been duly executed by the above-named Principal and Surety as of the date or dates set forth below the signatures of their authorized officers.
Note: All signatures must be
acknowledged before a notary
public. Attach appropriate
acknowledgment.
“PRINCIPAL”
RSI DEVELOPMENT BANNING, LLC
c/o RSI EQUITY PARTNERS LLC
620 Newport Center Drive, Suite 1200
Newport Beach, California 92660
RSI DEVELOPMENT BANNING LLC,
a Nevada limited liability company
BY: RSI HOMES LLC, a Nevada limited
liability company
By:
Print Name: David Lowrie
Title: Executive Vice President and Chief
Financial Officer
Date: ________________, 2024 October 29
specified, costs and reasonable expenses and fees shall be included, including reasonable specified, costs and reasonable expenses and fees shall be included, including reasonable 625
508264067.1508264067.2
11303-0011\2212200v1.doc
(Signatures Continued on Following Page.)
626
508264067.1508264067.2
11303-0011\2212200v1.doc
(Signatures Continued From Preceding Page.)
“SURETY”
______________________________
(Type name of Surety)
______________________________
(Street Address)
______________________________
(City) (State) (Zip)
By: __________________________
(Signature of authorized officer)
______________________________
(Title of officer)
Date: ________________________
APPROVED:
_________________________________
City Attorney
Lexon Insurance Company
12890 Lebanon Road
Mt. Juliet, TN 37122
James I. Moore, Attorney-In-Fact
October 29, 2024
627
STATE OF ILLINOIS
COUNTY OF DUPAGE
On October 29th, 2024, before me, Lisa Marotta, a Notary Public in and for said County and State, residing therein, duly commissioned and sworn, personally appeared, James I.
Moore known to me to be Attorney-in-Fact of Lexon Insurance Company the corporation described in and that executed the within and foregoing instrument, and known to me to be the person who executed the said instrument in behalf of the said corporation, and duly acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year stated in this certificate above.
My Commission Expires, February 7, 2026 _________________________________ Lisa Marotta, Notary Public
Commission No. 946275
628
James I. Moore
29th October 24
LICX1983103
RSI Development Banning LLC
City of Banning
629
508264067.1508264067.2
11303-0011\2212200v1.doc
CITY OF BANNING
FAITHFUL PERFORMANCE BOND
FINAL TRACT MAP NO. 36939
(Name or Tract Number of Subdivision)
KNOW ALL MEN BY THESE PRESENTS:
; and
WHEREAS, said Agreement is incorporated herein by this reference; and WHEREAS, said Principal is required under the terms of said Agreement to furnish a corporate surety bond or other approved improvement security to guarantee the faithful performance of said Agreement;
NOW, THEREFORE, the Principal designated above, and
, as
Surety, are held and firmly bound unto the City in the penal sum of One Hundred Eighty Five Thousand Five Hundred and 00/100 ($ 185,500.00), lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents.
The condition of this obligation is such that if the above-bounded Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to, abide by, well and truly keep and perform the covenants, conditions and provisions in said Agreement and any modification thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its officers, agents and employees, as therein stipulated; then this obligation shall become void; otherwise, this obligation shall be and remain in full force and effect.
As a part of the obligation secured hereby, and in addition to the face amount WHEREAS,__ RSI DEVELOPMENT BANNING, LLC, a Nevada limited liability company (hereinafter designated as “Principal”) has executed a Subdivision Improvement Agreement (“Agreement” herein) with the City of Banning, a municipal corporation of the State of California (“City” herein), whereby Principal agrees to construct, install, complete and guarantee for one year after acceptance thereof, certain designated public improvements generally identified as follows: LANDSCAPING Lexon Insurance Company, 12890 Lebanon Road, Mt. Juliet, TN 37122 Bond No: LICX1983104
630
508264067.1508264067.2
11303-0011\2212200v1.doc
attorneys’ fees, incurred by the City in successfully enforcing the obligation, all to be taxed as costs and included in any judgment rendered.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement, the work to be performed thereunder, or the Improvement Plans and related specifications accompanying the Agreement shall in any manner affect its obligations on this bond. The Surety hereby waives notice of any such change, extension of time, alteration or addition to the terms of the Agreement, the work, or the Improvement Plans and related specifications.
IN WITNESS WHEREOF, this instrument has been duly executed by the above-named Principal and Surety as of the date or dates set forth below the signatures of their authorized officers.
Note: All signatures must be
acknowledged before a notary
public. Attach appropriate
acknowledgment.
“PRINCIPAL”
RSI DEVELOPMENT BANNING, LLC
c/o RSI EQUITY PARTNERS LLC
620 Newport Center Drive, Suite 1200
Newport Beach, California 92660
RSI DEVELOPMENT BANNING LLC,
a Nevada limited liability company
BY: RSI HOMES LLC, a Nevada limited
liability company
By:
Print Name: David Lowrie
Title: Executive Vice President and Chief
Financial Officer
Date: ________________, 2024 October 29
specified, costs and reasonable expenses and fees shall be included, including reasonable specified, costs and reasonable expenses and fees shall be included, including reasonable 631
508264067.1508264067.2
11303-0011\2212200v1.doc
(Signatures Continued on Following Page.)
632
508264067.1508264067.2
11303-0011\2212200v1.doc
(Signatures Continued From Preceding Page.)
“SURETY”
______________________________
(Type name of Surety)
______________________________
(Street Address)
______________________________
(City) (State) (Zip)
By: __________________________
(Signature of authorized officer)
______________________________
(Title of officer)
Date: ________________________
APPROVED:
_________________________________
City Attorney
Lexon Insurance Company
12890 Lebanon Road
Mt. Juliet, TN 37122
James I. Moore, Attorney-In-Fact
October 29, 2024
633
STATE OF ILLINOIS
COUNTY OF DUPAGE
On October 29th, 2024, before me, Lisa Marotta, a Notary Public in and for said County and State, residing therein, duly commissioned and sworn, personally appeared, James I.
Moore known to me to be Attorney-in-Fact of Lexon Insurance Company the corporation described in and that executed the within and foregoing instrument, and known to me to be the person who executed the said instrument in behalf of the said corporation, and duly acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year stated in this certificate above.
My Commission Expires, February 7, 2026 _________________________________ Lisa Marotta, Notary Public
Commission No. 946275
634
James I. Moore
29th October 24
LICX1983104
RSI Development Banning LLC
City of Banning
635
RESOLUTION 2019- 133
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING,
CALIFORNIA, APPROVING FINAL TRACT MAP NO. 36939 AND
RELEASE THE MAP FOR RECORDATION; AND AUTHORIZE STAFF
TO SIGN THE SUBDIVISION AGREEMENT AND FINAL TRACT MAP;
AND ACCEPT PERFORMANCE AND LABOR AND MATERIAL BONDS
FOR PUBLIC IMPROVEMENTS
WHEREAS, Tentative Tract Map 36939, approved by Planning Commission on January 6, 2016, includes the subdivision of a 34. 6 -acre vacant site into 98 single- family residential lots for development purposes located north of Wilson Street between Sunrise Avenue and Sunset Avenue; and
WHEREAS, Final Tract Map 36939 will create 98 single family residential lots and several lettered lots including Lots "A" through " F", which will be dedicated to the City for street and public utility purposes and creates the City' s public right- of- way; Lot " G" which includes an area that functions as a setback area for the earthquake fault located along the northerly boundary of the tract. No structures are permitted to be constructed within Lot "G" and will be dedicated to the City for open space; and Lots " H" and " I" which are lots for the development of water quality basins to mitigate developed condition storm water runoff as required by City Ordinance and which will be dedicated to the City for storm drain purposes; and
WHEREAS, the property owner has signed a Subdivision Improvement Agreement and has submitted bonds to assure that the required improvements including street, sewer, water and storm drain improvements are constructed; and WHEREAS, the Final Map has been deemed technically correct and that it conforms to the requirements of the Subdivision Map Act; and WHEREAS, the Final Map has been deemed technically correct and that it conforms to the requirements of the Subdivision Map Act and the City Engineer has verified that the Final Tract Map is in substantial conformance with the approved Tentative Track Map.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
Section 1: City Council adopts Resolution 2019- 133 approving the Final Tract Map 36939, a
copy of which is hereby attached as Exhibit "A" and made part of this Resolution.
Section 2: Approves the execution of the Subdivision Improvement Agreement to be signed by the Mayor and directs the Deputy City Clerk to transmit Final Map 36939 to the County Recorder of the County of Riverside for filing.
1 Resolution 2019- 133
636
PASSED, APPROVED AND ADOPTED this 22th day of October 2019.
Art ur L. Wel ,
01e
Mayor
City of Banning
ATTEST:
Sonj
City of Banning
ente, Deputy City Clerk
APPROVED AS TO FORM AND
LEGAL CONTENT:
Kevin G. Ennis, City Attorney
Richards, Watson & Gershon
2 Resolution 2019- 133
637
CERTIFICATION:
I, Sonja De La Fuente, Deputy City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2019- 133, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 22nd day of October 2019, by the following vote, to wit:
AYES: Councilmembers Andrade, Happe, Peterson, Wallace, and Mayor Welch NOES: None
ABSENT: None
ABSTAIN: None
Sonja le L'_Tuente, Deputy City Clerk
City of Banning, California
3 Resolution 2019- 133
638
Exhibit "A"
Final Tract Map 36939
4 Resolution 2019- 133
639
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646
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Art Vela, Public Works Director
MEETING DATE: November 12, 2024
SUBJECT: Consideration of Resolution 2024-180, Approving an Easement Purchase and Sale Agreement with Southern California Edison for an Easement in the City of Banning Water Canyon
RECOMMENDATION:
Adopt Resolution 2024-180.
BACKGROUND:
Southern California Edison (SCE) owns and maintains an electrical distribution system in the City of Banning Water Canyon located along the northern boundary of the City and within an existing easement.
The distribution system was damaged during the Apple Fire, which started on July 31, 2020. As part of the repair of the damaged system SCE relocated approximately 1,800 feet of overhead lines and associated power poles along an existing maintenance road on the City’s property (see "Proposed Easement Aerial Image"). The relocated alignment allows for a more protected distribution system and for ease of access and maintenance by SCE. SCE has requested the issuance of a permanent easement by the City for these facilities.
JUSTIFICATION:
In order to maintain permanent access to the relocated facilities, SCE must obtain a permanent easement by the City. The City’s attorney’s office has reviewed the Grant of Easement prepared by SCE and has prepared the attached Easement Purchase and Sale Agreement.
FISCAL IMPACT:
SCE will pay the City $4,700, which is an amount established by an appraisal conducted in compliance with Uniform Standards of Professional Appraisal Practice.
ALTERNATIVES:
Do not approve Resolution 2024-180 and provide staff with alternative direction, if any.
BUDGETED?:
No
CONTRACT/AGREEMENT:
Yes
ATTACHMENTS:
1. Resolution 2024-180 Easement Purchase and Sale Agreement.docx 647
2. Exhibit A PSA SCE Water Canyon Easement.pdf
3. Banning Apple Fire Appraisal.pdf
4. Proposed Easement Location.pdf
5. Proposed Easement Aerial Image.pdf
648
Resolution 2024-180