Banning City Council
November 12, 2024

RESOLUTION 2024-184

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA APPROVING EA 24-0051 AND ADOPTING AN INITIAL STUDY/MITIGATED NEGATIVE

DECLARATION AND MITIGATION MONITORING AND REPORTING PROGRAM PURSUANT

TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT FOR THE SUN LAKES

BOULEVARD EXTENSION PROJECT
WHEREAS, the City of Banning desires to construct Sun Lakes Boulevard between Highland Home Road and Sunset Ave (the “Project”) as identified in the City’s General Plan Circulation Element and the approved Capital Improvement Program. The new roadway connection will provide for a connection south of Interstate 10 that does not exist today, providing additional access to the Sun Lakes Country Club and Sun Lakes Village Shopping Center and connection to the rest of the City of Banning, improving emergency response time, and providing alternative for City of Banning Transit routes; and
WHEREAS, on February 11, 2020, the City Council adopted Resolution 2020-21, accepting Lots A, D, E, F, and G, as offered on Parcel Map 25541, for street, public utilities, and landscape purposes. The acceptance of Lots A, D, E, F, and G provided the necessary right-ofway for the Project; and WHEREAS, on April 14, 2020, the City Council adopted Resolution 2020-48, awarding a Professional Services Agreement for the design of the Project to Albert A. Webb Associates; and WHEREAS, on July 14, 2020, the City Council adopted Resolution 202-97, authorizing the City Manager to execute a TUMF Reimbursement Agreement with the Western Riverside Council of Governments for up to $1,000,000 in TUMF funds for the Project; and WHEREAS, the construction plans for the Project are now 100% complete and the City anticipates filing formal applications with the Regional Water Quality Board and the California Department of Fish and Wildlife for approval of a Streambed Alteration Agreement and issuing a Notice Inviting Bids to award a contract for the construction of the Project; WHEREAS, pursuant to the California Environmental Quality Act (CEQA), the City, as the lead agency for the Project, caused the preparation of an Initial Study (IS) for the Project in accordance with the requirements of CEQA and, based on the findings of the IS, a Mitigated Negative Declaration (MND) with a Mitigation Monitoring and Reporting Program (MMRP) was prepared by Albert A. Webb Associates, the City’s consultant, pursuant to the scope of services of the Professional Services Agreement awarded by the City Council by adoption of Resolution 2020-48. The IS/MND concludes that the Project, with proposed mitigation measures, would not have a significant effect on the environment. The mitigation measures within the MMRP conclude that the proposed Project will have a less than significant effect on the environment with their implementation (see Appendix III of the Draft IS/MND); and WHEREAS, the IS, MND, and MMRP (Environmental Document) were released for a 30- day public review and comment period that began on Friday, September 6, 2024, and concluded on Tuesday, October 8, 2024, and were posted with the State Clearinghouse and the Riverside County Clerk’s Office, were available for public review and inspection at City Hall (99 E. Ramsey Street, Banning, California 92220) and the Banning Public Library (21 West Nicolet Street, 1624
Resolution 2024-184

Banning, California 92220), and were also posted on the City’s website under the Engineering Division of the Public Works Department (https://ceqanet.opr.ca.gov/2024090237/2); and WHEREAS, a copy of the Final IS/MND and the related documents are included as attachments 6-20 to the November 12, 2024 City Council staff report for the Project and are incorporated into this Resolution by this reference; and WHEREAS, pursuant to CEQA, whenever a lead agency approves a project requiring the implementation of measures to mitigate or avoid potentially significant effects on the environment, CEQA also requires a lead agency to adopt an MMRP to ensure compliance with the mitigation measures during project implementation. A copy of the MMRP for the Project, which defines the measures that would be imposed on the Project to mitigate or avoid potentially significant environmental impacts, is attached hereto as Exhibit A, and incorporated herein by this reference; and
WHEREAS, at a public meeting on November 12, 2024, the City Council considered the Final IS/MND, including the MMRP, prepared for the Project, and took and considered any public testimony provided.

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

SECTION 1. The City Council hereby finds that all facts stated in the recitals of this Resolution are true and correct, are incorporated into this Resolution by this reference, and constitute a material part of this Resolution.

SECTION 2. The City Council hereby finds, in its independent judgment after considering all the evidence in the record of proceedings for the Project, including, without limitation, the Final IS/MND and testimony, if any, presented at the public meeting, that: (1) the Final IS/MND was prepared in compliance with CEQA; (2) the Project will not result in a significant effect on the environment because the mitigation measures described in the MMRP are incorporated as part of the Project; and (3) there is no substantial evidence supporting a fair argument that the Project would result in any significant environmental impacts that cannot be mitigated to a less than significant level through implementation of those mitigation measures identified in the Final IS/MND and included in the MMRP. Therefore, the City Council finds that the Project will not cause a significant unmitigated environmental effect. Based on these findings, the City Council hereby adopts the Final IS/MND for the Project
SECTION 3. The City Council has also reviewed and considered the MMRP for the Project that has been prepared pursuant to the requirements of CEQA and finds that such program is designed to ensure compliance with the mitigation measures during Project implementation.

Accordingly, the City Council hereby adopts the MMRP for the Project, attached as Exhibit A to this Resolution.

SECTION 4. The City Council designates the custodian of the documents for the IS, MND, MMRP, staff report, technical studies, appendices and all other materials which constitute the record of proceedings upon which the City Council’s decision is based, to be the Public Works Department of the City of Banning. Those documents are available for public review in the Public Works Department located at 99 E. Ramsey Street, Banning, California 92220, telephone number: (951) 922-3130.
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Resolution 2024-184

SECTION 5. The City Council directs the City Manager, or his designee, to prepare a Notice of Determination for the Final IS/MND (EA 24-0051) in accordance with CEQA, and file that Notice with the State Clearinghouse and the Riverside County Clerk’s Office.

SECTION 6. 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
ATTEST:

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

Serita R. Young, City Attorney
Richards, Watson & Gershon
1626
Resolution 2024-184

CERTIFICATION:

I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-148, 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
1627
Resolution 2024-184

Exhibit A
Final IS/MND and Mitigation Monitoring and Reporting Program 1628

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 2024-185, Authorizing the City Manager to Execute Amendment No. 1 to the Transportation Uniform Mitigation Fee Reimbursement Agreement with Western Riverside Council of Governments for up to $13,000,000 for the Sun Lakes Boulevard Extension Project
RECOMMENDATION:

Approve Resolution 2024-185.

BACKGROUND:

City Council approved Resolution No. 2020-97 on July 14, 2020 that allowed the execution of an agreement between the City of Banning and the Western Riverside Council of Governments (WRCOG) for a Transportation Uniform Mitigation Fee (TUMF) reimbursement for costs related to the planning and design of the Sun Lake Boulevard Extension Project. The original agreement was for a total of $1,000,000.

WRCOG has developed and administers the TUMF program, a regional fee program designed to provide transportation infrastructure to mitigate the impact of new growth in western Riverside County. Each of WRCOG’s members, including the City of Banning (City), participate in the TUMF program through an adopted ordinance.

As the program administrator, WRCOG allocates TUMF funds to a variety of agencies, including the Riverside County Transportation Commission (RCTC), Riverside Transit Agency (RTA), Western Riverside Regional Conservation Authority (RCA) and western Riverside cities and Riverside County areas through applicable TUMF Zones. Eligible projects funded by TUMF revenues are those that have been identified as being part of the Regional System of Highway Arterials (also known as the “TUMF Network”) in the TUMF Nexus Study. Typically, each TUMF Zone receives 45.7% of TUMF revenues collected within their respective zone. The remainder of the funds are distributed to RTA (3.13%), RCTC (45.7%), RCA (1.47%) and WRCOG (4%).

TUMF funds are programmed through a collaborative exercise involving each of WRCOG’s member agencies. The WRCOG sub region is divided into five TUMF Zones, which allows member jurisdictions to coordinate with neighboring ones to discuss project allocations.

The Pass Zone is comprised of the following: Banning, Beaumont, Calimesa, and Riverside County (District 5). Staff and elected officials representing each jurisdiction within its respective Zone meet regularly to discuss funding allocations for individual projects. The result of these meetings is a 5-year 1629
Zone-specific Transportation Improvement Program (TIP), which must be approved by the WRCOG Executive Committee. The current Pass Zone TIP, which includes the Sun Lakes Boulevard Extension project, was approved by the WRCOG Executive Committee at its June 21, 2024 meeting.

JUSTIFICATION:

Sun Lakes Boulevard is identified on the City of Banning General Plan Circulation Element as an Arterial Highway. City Council has previously authorized action related to the design of the roadway including:

Acceptance of Offered Right of Way
Authorization of a Professional Design Contract
TUMF Reimbursement Agreement
Reimbursement Agreement with pipeline easement holders
Approval of Resolution No. 2024-185 will allocate additional TUMF funds and will allow the City to be reimbursed up to $13,000,000 in TUMF funding for the Project.

FISCAL IMPACT:

The current Pass Zone TIP includes a new allocation of $12,000,000 for construction activities for the Sun Lakes Boulevard Extension Project. This action would make those funds available for reimbursement for eligible construction related costs of the Sun Lakes Boulevard Extension Project.

The City is also in receipt of a separate $13,500,000 grant from the Riverside County Transportation Commission (RCTC) Measure A Regional Arterials Program (MARA), bringing a total of $25,500,000 of construction funding available for the roadway project.

WRCOG recently approved a new TUMF Nexus Study which included a revised and increased maximum TUMF obligation of $44,422,000 to the project. As a result, staff anticipates a possible future amendment to the TUMF Reimbursement Agreement. It should be noted that although the TUMF Nexus Study includes an increased estimate of the project it does not indicate that the cash is available in the Pass Zone to cover the full maximum TUMF obligation.

ALTERNATIVES:

Do not approve the recommendation and provide staff with alternative direction.

BUDGETED?:

No
CONTRACT/AGREEMENT:

Yes
ATTACHMENTS:

1. Resolution_2024-185

2. Reso 2024-185 Exhibit A Amendment No. 1 WRCOG TUMF Reimbursement Agreement.pdf

3. CC Resolution No. 2020-097.pdf

4. WRCOG Reimbursement Agreement.pdf

5. Fiscal Year 2024-2025 Pass Zone 5-Year Transportation Improvement Program.pdf 1630
Resolution 2024-185

RESOLUTION 2024-185

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, AUTHORIZING THE CITY MANAGER TO EXECUTE AMENDMENT NO. 1 TO THE

TRANSPORTATION UNIFORM MITIGATION FEE REIMBURSEMENT AGREEMENT WITH WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS FOR UP TO $13,000,000 FOR THE

SUN LAKES BOULEVARD EXTENSION PROJECT
WHEREAS, Western Riverside Council of Government (WRCOG) has developed and administers the Transportation Uniform Mitigation Fee (TUMF) program, a regional fee program designed to provide transportation infrastructure to mitigate the impact of new growth in western Riverside County. The City of Banning is an active member in WRCOG; and WHEREAS, as the program administrator, WRCOG allocates TUMF funds to a variety of agencies, including the Riverside County Transportation Commission (RCTC), Riverside Transit Agency (RTA), Western Riverside Regional Conservation Authority (RCA), western Riverside cities and Riverside County areas through applicable TUMF Zones; and WHEREAS, the City of Banning is part of the Pass Zone along with the City of Calimesa, City of Beaumont and Riverside County (District 5); and WHEREAS, the Pass Zone Transportation Improvement Program (TIP), which included the Sun Lakes Boulevard Extension project, was approved by the WRCOG Executive Committee at its June 21, 2024 meeting; and
WHEREAS, Amendment No. 1 to the TUMF Reimbursement Agreement will provide up to $13,000,000 in TUMF funds in the form of a reimbursement to the City of Banning for expenditures related to the Sun Lakes Boulevard Extension project.

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 Transportation Uniform Mitigation Fee Program Agreement with the Western Riverside Council of Governments for the Sun Lakes Boulevard Extension Project.

SECTION 2. The City Council authorizes the City Manager to make non-substantive changes to the Amendment No. 1 to Transportation Uniform Mitigation Fee Program Agreement and to execute the Amendment No. 1 to Transportation Uniform Mitigation Fee Program Agreement with Western Riverside Council of Governments 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. 1631
Resolution 2024-185

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
1632
Resolution 2024-185

CERTIFICATION:

I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-185, 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
1633
Resolution 2024-185

EXHIBIT A
Amendment No.1
Transportation Uniform Mitigation Fee Program Agreement 1634
Project #06-PS-BAN-1206
AMENDMENT NO. 1 TO TRANSPORTATION UNIFORM MITIGATION FEE

PROGRAM AGREEMENT

SUN LAKES BOULEVARD EXTENSION PROJECT

PA&AD, PS&E AND CONSTRUCTION PHASES
This Amendment No.1 to Transportation Uniform Mitigation Fee Program Agreement (“Amendment No. 1”) is entered into this ______day of _______________, 202_, by and between the WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS (“WRCOG”) and City of Banning, a California municipal corporation (“AGENCY”). WRCOG and the AGENCY are sometimes referred to individually as “Party” and collectively as “Parties.”

RECITALS
A. WRCOG and AGENCY have entered into an agreement titled “Transportation Uniform Mitigation Fee Program Agreement” that is dated June 12, 2020 (“Agreement”). The Agreement provides the terms and conditions, scope of work, schedule and funding amount for the construction of the Sun Lakes Boulevard Extension (hereinafter the “Project”).

C. The Parties desire to amend the Agreement, as amended by Amendment No. 1 by increasing the funding amount pursuant to Sections 6 and 33 of the Agreement.

D. Funds are being increased for this Project because new funding has become available.

AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and subject to the conditions contained herein, the Parties hereby agree as follows:
1635
Project #06-PS-BAN-1206

1. The Funding Amount contained in Section 2 of the Agreement as amended by Amendment No.1 is hereby increased by $12,000,000 (TWELVE MILLION DOLLARS) from $1,000,000 (ONE MILLION DOLLARS) to an amount not to exceed $13,000,000 (THIRTEEN MILLION DOLLARS).

2. The foregoing increase in the Funding Amount is within the Maximum TUMF Share.

3. Section 10 of the Agreement, as amended, is hereby deleted in its entirety and replaced with the following provision:

AGENCY’s Local Match Contribution. AGENCY funding is not required, as shown in Exhibit “A” attached hereto.

4. Exhibits “A”, “A-1”, and “A-2” of the Agreement, as amended by Amendment No. 1 are hereby replaced in their entirety by Exhibits “A”, “A-1”, and “A-2” of this Amendment No. 1, which are attached hereto and incorporated by reference.

5. The above-stated Recitals are hereby fully incorporated into this Amendment No.

1. 6. Except to the extent specifically modified or amended hereunder, all of the terms, covenants and conditions of the Agreement as amended, shall remain in full force and effect between the Parties hereto.

IN WITNESS WHEREOF, the Parties have caused this Amendment No. 1 to be executed by their duly authorized representatives to be effective on the day and year first written above. 1636
Project #06-PS-BAN-1206

WESTERN RIVERSIDE COUNCIL CITY OF BANNING

OF GOVERNMENTS
By: ______________________________ By: ______________________________ Dr. Kurt Wilson, Executive Director Doug Schulze, City Manager

Approved to Form: Approved to Form:

By: ______________________________ By: ______________________________ Steven C. DeBaun Serita Young, City Attorney
General Counsel
Attest:

By: ______________________________
Caroline Patton, Administrative City
Clerk
1637
Project #06-PS-BAN-1206
Exhibit A

SCOPE OF SERVICES

1. SCOPE OF WORK:

PA&ED and PSE Phases
• Project Management
• Project Development
• Preliminary Engineering Design
• Environmental Documentation
• Final Design Reports and Studies
• Final Design Plans, Specifications, and Estimates
• Permitting
• Bidding/Construction Support
CON Phase
• Construction Management
• Field Inspection
• Materials Testing
• Construction costs, including change order to construction contract o Improvement of 1.01 miles of roadway between Highland Home Road and Sunset Ave
o 4 vehicle lanes (2 in each direction) within a 110 right of way. Scope includes road base, asphalt, concrete median curb, curb and gutter, sidewalk, street lights, signage, and striping
o Drainage improvements to collect and convey stormwater on the roadway to project culverts
o Relocation of non-agency owned utilities
• Construction Inspection
1638
Project #06-PS-BAN-1206
EXHIBIT “A-1”

ESTIMATE OF COST
Phase TUMF LOCAL TOTAL
PA&ED $500,000 0 $500,000
PS&E $500,000 0 $500,000
RIGHT OF WAY 0 0 0
CONSTRUCTION $12,000,000 0 $12,000,000
TOTAL $13,000,000 0 $13,000,000
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Project #06-PS-BAN-1206
EXHIBIT “A-2”

PROJECT SCHEDULE
TIMETABLE:

Phase
Estimated
Completion Date Estimated Cost Comments
PA&ED 12/31/24 $500,000
95% Plans
Complete
PS&E 12/31/24 $500,000
95% Plans
Complete

RIGHT OF WAY N/A N/A
CONSTRUCTION 12/31/27 $30,000,000
Include RCTC
Mara Funding
TOTAL $31,000,000
1640
RESOLUTION 2020- 97
ADOPT RESOLUTION 2020-97, AUTHORIZING THE CITY MANAGER

TO EXECUTE A TUMF REIMBURSEMENT AGREEMENT WITH WRCOG
FOR UP TO $ 1,000,000 IN TUMF FUNDS FOR THE SUN LAKES

BOULEVARD EXTENSION PROJECT
WHEREAS, Western Riverside Council of Government ( WRCOG) has developed and administers the Transportation Uniform Mitigation Fee ( TUMF) program, a regional fee program designed to provide transportation infrastructure to mitigate the impact of new growth in western Riverside County. The City of Banning is an active member in WRCOG; and
WHEREAS, as the program administrator, WRCOG allocates TUMF funds to a variety of agencies, including the Riverside County Transportation Commission ( RCTC), Riverside Transit Agency ( RTA), Western Riverside Regional Conservation Authority RCA) and western Riverside cities and Riverside County areas through applicable TUMF Zones; and
WHEREAS, the City of Banning is part of the Pass Zone along with the City of Calimesa, City of Beaumont and Riverside County ( District 5); and WHEREAS, the Pass Zone Transportation Improvement Program ( TIP), which included the Sun Lakes Boulevard Extension project, was approved by the WRCOG Executive Committee at its May 4, 2020 meeting; and
WHEREAS, the TUMF Reimbursement Agreement will provide up to $ 1,000,000 in TUMF funds in the form of a reimbursement to the City of Banning for expenditures related to the Sun Lakes Boulevard Extension project; and WHEREAS, the WRCOG Executive Committee approved the TUMF Reimbursement Agreement at its June 1, 2020 meeting.

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

Section 1. The Banning City Council adopts Resolution 2020- 97 authorizing the City Manager to execute the TUMF Reimbursement Agreement with WRCOG for up to 1,000,000 in TUMF funds for the Sun Lakes Boulevard Extension project.

Section 2. The City Manager or his designee is authorized to record the reimbursement funds and to make all necessary budget adjustments, appropriations and transfers related to the TUMF Reimbursement Agreement for the Sun Lakes Boulevard Extension project.

Resolution 2020- 97 1
1641
PASSED, APPROVED AND ADOPTED this 14th day of July, 2020.

ATTEST:

S~ Deputy City Clerk
City of Banning

APPROVED AS TO FORM
AND LEGAL CONTENT:
7~ %C/44
Kevin G. Ennis, Esq., City Attorney
Richards, Watson & Gershon
Resolution 2020- 97
Daniela Andrade, Mayor
City of Banning
2 1642
CERTIFICATION:

I, Sonja De La Fuente , Deputy City Clerk of the City of Bann ing , Ca liforn ia , do hereby certify that the foregoing Reso lution No. 2020-97 , was adopted by the City Council of the City of Banning at a Regular Meeting thereof held on the 14th day of July , 2020 , by the following vote , to wit:

AYES : Councilmembers Happe, Pingree, Wallace, Welch and Mayor Andrade NOES: None
ABSTAIN: None
ABSENT: None
Sonja uente , Deputy City Clerk
City of Banning
Re solutio n 20 20- 97 3
1643
1644
1645
1646
1647
1648
1649
1650
1651
1652
1653
1654
1655
1656
1657
1658
1659
1660
1661
1662
FY 24-25 FY25-26 FY26-27 FY27-28 FY28-29
Current
Programmed
Phase Balance
Total Phase
Payments/
Expenditures
Original
Programmed
Phase Cost
Last Invoice
Reimbursement
Agreement
Values
Max Share
(2021)
$3,000,000 3,090,000 $ 3,182,700 $ 3,278,181 $ 3,376,526 $ 39,450,456 $ (2,270,007) $ 44,599,976 $ $ $7,279,820 (7,630,180) 19,630,277 $ (8,547,480) $ (6,269,299) $ $22,630,277 10,369,820 $ (4,447,480) $ (5,269,299) $ (2,892,772) $ Phase**
PLN $ - 2,043,316 $ - $ - $ - $ 2,043,316 $ (1,456,684) $ 3,500,000 $ 3,500,000 $ ENG $ - - $ - $ - $ - $ - $ - $ - $ - $
ROW $ - - $ - $ - $ - $ - $ - $ 200,000 $ 200,000 $
CON $ - - $ - $ - $ - $ - $ - $ 1,800,000 $ 1,800,000 $ PLN $ - 124,240 $ - $ - $ - $ 124,240 $ (375,760) $ 500,000 $ 500,000 $ ENG $ - 182,900 $ - $ - $ - $ 182,900 $ (317,076) $ 499,976 $ 500,000 $ ROW $ - - $ - $ - $ - $ - $ - $ - $
CON $ 7,000,000 1,000,000 $ 2,000,000 $ 1,000,000 $ 1,000,000 $ 12,000,000 $ - $ 12,000,000 $ PLN $ - - $ - $ - $ - $ - $ - $ - $ - $
ENG $ - - $ - $ - $ - $ - $ (120,487) $ 250,000 $ 3,000,000 $ ROW $ - - $ - $ - $ - $ - $ - $ - $ - $
CON $ 7,000,000 6,500,000 $ - $ - $ - $ 13,500,000 $ - $ 13,500,000 $ 3,000,000 $ PLN $ 1,000,000 500,000 $ - $ - $ - $ 1,500,000 $ - $ 1,500,000 $ ENG $ - - $ - $ - $ - $ - $ - $ 750,000 $
ROW $ - - $ - $ - $ - $ - $ - $ - $
CON $ - - $ - $ - $ - $ - $ - $ - $
PLN $ - - $ - $ - $ - $ - $ - $ - $
ENG $ - - $ - $ - $ - $ - $ - $ - $
ROW $ - - $ - $ - $ - $ - $ - $ - $
CON $ - $ - $ 2,100,000 $ - $ - $ 2,100,000 $ - $ 2,100,000 PLN $ - 300,000 $ - $ - $ - $ 300,000 $ - $ 300,000 $
ENG $ - 600,000 $ - $ - $ - $ 600,000 $ - $ 600,000 $
ROW $ - 2,100,000 $ - $ - $ - $ 2,100,000 $ - $ 2,100,000 $ CON $ 2,000,000 $ 3,000,000 $ - $ - $ - $ 5,000,000 $ - $ 5,000,000 $ 2,000,000 Total Programmed Capital Expenditures $ $18,000,000 4,100,000 15,350,456 $ 1,000,000 $ 1,000,000 $ 39,450,456 $ 44,599,976 $ Total Programmed Carryover Balance* $7,279,820 (7,630,180) $ (8,547,480) $ (6,269,299) $ (3,892,772) $ FY 24-25 FY25-26 FY26-27 FY27-28 FY28-29
$ 22,630,277 $ 10,369,820 $ (4,447,480) $ (5,269,299) $ (2,892,772) $ 18,000,000 15,350,456 $ 4,100,000 $ 1,000,000 $ 1,000,000 $ 35,557,683.94 $ 39,450,456 $ (3,892,772) $ $ (7,630,180) 7,279,820 $ (8,547,480) $ (6,269,299) $ (3,892,772) $ NOTES:

Available 5-Year Balance
Revenues
N/A
N/AN/A
Total Funded Carryover Balance does not reflect actual available cash.

Carryover
Balance
Cherry Valley Interchange & Highland Springs Interchange funding shown above from part of Beaumont Settlement.

Funded
Programm
ed
Cities of Banning and Beaumont
20-PS-CAL-1208 Singleton Rd/I-10 Interchange $ 38,423,000 Forecast RevenuesCarryover Revenues (As of 4/4/23)
Programmed/Expenditures
** Phase: planning=PLN, engineering=ENG, right-of-way=ROW,construction=CON.

Available Revenues
Summary Table
Fiscal Year
5-Year Total
Available
Forecast/Cash
5-Year Total
Programmed
Highland Springs Avenue Interchange
Sun Lakes Blvd Extension (Highland Home to
Sunset)
Fiscal Year 2024/2025 Pass Zone 5-Year Transportation Improvement Program Cherry Valley Boulevard Interchange
17-PS-BAN-1191
19-PS-BEA-1204
19-PS-CAL-1205
City of BanningCity of BeaumontCity of Calimesa
06-PS-BAN-1206
16-PS-CAL-1189
Potrero Boulevard Interchange (Phase II)
County Line Road Interchange
Fiscal Year
$17,897,000
$14,679,000$25,123,000$18,556,000$36,617,000
11/17/2023
6/21/2023
11/26/2023
N/AN/A
C:\Users\cbrown\WRCOG\Shared Data - Documents\Programs\Transportation\TUMF\Annual TIPs - Projects and Invoices\2024 TIP Update\Pass Zone\2024 Pass Zone 5-Year TIP.xlsx 1 1663

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Doug Schulze, City Manager
MEETING DATE: November 12, 2024
SUBJECT: Consideration of Resolution 2024-186, Approving a Police Chief Employment Agreement & Swearing In
RECOMMENDATION:

Adopt Resolution 2024-186.

BACKGROUND:

Following an internal selection process, which included an external police chief panel, internal management panel, community meet and greet, and City Manager interviews, a decision was made to appoint Lt. Vincent Avila to the position of Police Chief for the City of Banning Police Department. The City Council action is to either approve the attached Employment Agreement or reject the attached Employment Agreement.

The terms of the Employment Agreement are consistent with Resolution 2019-41, approving compensation and benefits in Department Director employment contracts with a few exceptions, including:

Vacation accrual is based on the current BPMA Memorandum of Understanding; Bereavement leave is based on current law;
Retirement is based on employee's current status;
Automobile allowance is not provided since the Police Chief is assigned a take-home vehicle; Uniform allowance is based on the current BPMA Memorandum of Understanding; Education incentives are based on the current BPMA Memorandum of Understanding.

JUSTIFICATION:

The Police Chief position is a Department Director and serves as an at-will employee. Employment Agreements are used to establish compensation and benefits for Department Directors.

FISCAL IMPACT:

The 2024/2025 budget includes funding for the Police Chief position. Fiscal year Estimated Total Compensation (including all Employer contributions for benefits and retirement) 2024/2025 $393,878.69 (annual, not prorated) 2025/2026 $404,552.64 2026/2027 $415,546.82 2027/2028 $ 426,870.82 2028/2029 $438,534.54. The fiscal impact will be minimized by an internal promotion and cost offset by a Lieutenant (which will be unfunded). The savings on an annual basis for a five year projection (by unfunded the Lieutenant, including overtime) is 2024/2025 $463,075.03 (savings of $69,196.34) 2025/2026 $470,770.68 (savings of $66,218.04) 2026/2027 $478,697.21 (savings of $63,150.39) 2027/2028 $486,861.53 (savings of $59,990.71) 2028/2029 $495,270.79 (savings of $56,736.25).

ALTERNATIVES:
1664
Do not adopt Resolution 2024-186 and provide staff with alternate direction.

BUDGETED?:

Yes
CONTRACT/AGREEMENT:

Yes
ATTACHMENTS:

1. Resolution 2024-186, Police Chief Employment Agreement.docx

2. Exhibit A - Employment Agreement - Police Chief - Avila 2024-2029.pdf

3. Reso No. 2019-41 Executive Compensation and Benefits.pdf 1665
Resolution 2024-186

RESOLUTION 2024-186

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

APPROVING A POLICE CHIEF EMPLOYMENT AGREEMENT
WHEREAS, the City Manager selected Vincent Avila for the permanent position of Police Chief of the City of Banning; and
WHEREAS, at the City Council regular meeting on November 12, 2024, the Council considered a Police Chief Employment Agreement between the City of Banning and Vincent Avila; and
WHEREAS, Vincent Avila has confirmed his desire to serve as Police Chief for the City of Banning; and
WHEREAS, the parties agree that Vincent Avila has the necessary qualifications and experience to perform as the Police Chief for the City.

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

SECTION 1. The City Council approves the Police Chief Employment Agreement between the City of Banning and Vincent Avila, attached hereto as Exhibit A, effective November 12, 2024, and authorizes the City Manager to make the necessary non-substantive changes to and execute the Employment Agreement.

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

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

PASSED, APPROVED AND ADOPTED this 12th day of November 2024.

Alberto Sanchez, Mayor
City of Banning
ATTEST:

Caroline Patton, Administrative City Clerk
City of Banning
1666
Resolution 2024-186

APPROVED AS TO FORM:

Serita R. Young, City Attorney
Richards, Watson & Gershon
1667
Resolution 2024-186

CERTIFICATION:

I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-186, 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
1668
Resolution 2024-186

EXHIBIT A
Police Chief Employment Agreement
1669

CITY OF BANNING

POLICE CHIEF EMPLOYMENT AGREEMENT
This POLICE CHIEF EMPLOYMENT AGREEMENT (hereinafter referred to as the "AGREEMENT") is entered into and made effective the 13th day of November, 2024, by and between the CITY OF BANNING, a general law city and municipal corporation (hereinafter referred to as the "CITY") and VINCENT V. AVILA, an individual (hereinafter referred to as "EMPLOYEE"), who is qualified to serve as Police Chief in the State of California. For purposes of this AGREEMENT, CITY and EMPLOYEE may be collectively referred to as the "Parties" or individually as a "Party."

RECITALS
WHEREAS, California Government Code Section 34851 authorizes a city manager form of government, which position is prescribed by state law and the CITY's Municipal Code; and WHEREAS, California Government Code Section 34856 provides that the City Manager, in cities operating under the City Manager form of government, may appoint and dismiss the chief of police and other subordinate appointive offices and employees; and WHEREAS, the duties of the Police Chief are set forth in Exhibit "A" to this AGREEMENT; and
WHEREAS, the CITY requires the services of a Police Chief; and WHEREAS, based on EMPLOYEE's executive and administrative qualifications and ability, the City Manager desires to appoint EMPLOYEE to serve as the Police Chief for the CITY; and
WHEREAS, the Parties agree that EMPLOYEE has the necessary qualifications and experience to perform as the Police Chief for the CITY, including State of California Police Officer Standards and Training (POST) management certification and POST Executive certification; and WHEREAS, EMPLOYEE has served in the roles of Lieutenant, Acting Police Chief, and Acting Captain of the CITY’s Police Department since 2017 and desires to continue to perform and assume responsibility for the provision of Police Chief services to the CITY and the Banning Police Department; and
WHEREAS, the Parties wish to establish the terms and conditions of EMPLOYEE's employment through this AGREEMENT; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the CITY and EMPLOYEE hereby agree as follows:

1.0 EMPLOYMENT & DUTIES

1.1 Duties. The City Manager hereby appoints EMPLOYEE as Police Chief for the CITY to perform the functions and duties of that position, as described in Exhibit "A" to this AGREEMENT, the California Government Code, and such other legally permissible and proper duties and functions as the City Manager shall, from time to time, direct or assign to EMPLOYEE. The CITY reserves the right to amend the Banning Municipal Code, as it deems necessary and appropriate, without requiring EMPLOYEE's acquiescence or an amendment of this AGREEMENT. EMPLOYEE agrees to perform all such functions and duties to the best of his ability and in an efficient, competent, and ethical manner. 1670

1.2 Work Schedule. It is recognized that the Police Chief is expected to engage in the hours of work that are necessary to fulfill the obligations of the position, must be available at all times, and must devote a great deal of time outside the normal office hours to the business of the CITY. EMPLOYEE acknowledges that proper performance of the duties of Police Chief will require EMPLOYEE to generally observe normal business hours, Monday through Friday, as set by the CITY and as may be duly revised from time to time by the CITY, and will also often require the performance of necessary services outside of normal business hours. EMPLOYEE's compensation is not based on hours worked.

Furthermore, the Police Chief position remains an "exempt" classification under the overtime provisions of the federal Fair Labor Standards Act ("FLSA") and EMPLOYEE shall not be entitled to any compensation for overtime nor subject to such overtime provisions of the FLSA.

1.3 FLSA Exempt Status. EMPLOYEE acknowledges and agrees that the Police Chief position is that of an exempt employee of the CITY for the purposes of the FLSA.

1.4 Other Activities. EMPLOYEE shall focus his professional time, ability, and attention to the CITY's business during the term of this AGREEMENT. EMPLOYEE shall not engage, without the express prior written consent of the City Manager, in any other business duties or pursuits whatsoever, or directly or indirectly render any services of a business, commercial, or professional nature to any other person or organization, whether for compensation or otherwise, that is or may be competitive with the CITY, that might cause a conflict of interest with the CITY, or that otherwise might interfere with the business or operation of the CITY or the satisfactory performance of the functions and duties of the Police Chief.

1.5 Employment Status. Upon appointment to the Police Chief position, EMPLOYEE shall serve at the will and pleasure of the City Manager and understands that by accepting the Police Chief appointment, he shall be an "at-will" employee and shall be subject to summary dismissal without any right of notice or pre-disciplinary hearing. The CITY may terminate EMPLOYEE at any time in accordance with Section 3.4 below, and as permitted by all applicable laws, including, but not limited to, the Public Safety Officers Procedural Bill of Rights Act (Government Code sections 3300-3313).

1.6 Exemption from Personnel System. BMC §2.68.020(E) expressly exempts the Police Chief position from the CITY's Personnel System established in BMC Chapter

2.68. EMPLOYEE understands, acknowledges and agrees that EMPLOYEE is exempt from the CITY's Personnel System.

CITY Documents. All data, studies, reports and other documents prepared by EMPLOYEE while performing his duties during the term of this AGREEMENT shall be furnished to and become the property of the CITY, without restriction or limitation on their use. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other materials either created by or provided to EMPLOYEE in connection with the performance of this AGREEMENT shall be held confidential by EMPLOYEE to the extent permitted by applicable law, except as may be required by any governmental agency or court of competent jurisdiction. Such materials shall not be used by EMPLOYEE, without the prior written consent of the City Manager, for any purposes other than the performance of EMPLOYEE's duties. Additionally, no such materials may be disclosed to any person or entity not 1671

connected with the performance of services under this AGREEMENT, except as required by (a) law, (b) any governmental agency, (c) subpoena, or (d) an order issued by a court of competent jurisdiction.

2.0 COMPENSATION AND REIMBURSEMENT

2.1 Salary. For the services rendered pursuant to this AGREEMENT, EMPLOYEE shall be placed at Range D103, Step 11 which at the time of executing this agreement is annually Two Hundred Thirty Thousand Five Hundred-fifty-four Dollars and Thirtyone Cents ($230,534.31) per year ("Salary"), which shall be paid on a pro-rated basis biweekly at the same time as other employees of the CITY are paid, effective on the day EMPLOYEE commences work for the CITY. Such Salary shall be subject to all permissible and required withholdings as determined by state and federal law and as determined appropriate by the City Council.

2.2 Salary Review. EMPLOYEE salary will be reviewed upon completion of a sixmonth probation period and on the annual anniversary date of appointment to position of Police Chief. It is understood that the cost-of-living salary adjustments will be those based upon the Consumer Price Index (CPI), unless a future Compensation Study is approved by the City Council.

2.3 Salary Adjustment. EMPLOYEE's base salary and benefits package have been established by the AGREEMENT. Annual adjustments in the base salary will be consistent with those provided to all Department Directors.

2.4 Business Expense Reimbursements. The CITY shall reimburse EMPLOYEE for reasonable and necessary travel, and other CITY-related business expenses incurred by EMPLOYEE in the performance of his duties. All reimbursements shall be subject to and in accordance with California law, the CITY's adopted policies, and IRS rules for reporting compensation through payroll or reimbursement through accounts payable.

3.0 TERM

3.1 Commencement & Effective Date. EMPLOYEE shall commence service hereunder at 8:00 a.m. Pacific Daylight Time on Wednesday, November 13, 2024.

3.2 Term. The CITY hereby employs EMPLOYEE for an initial term of five (5) calendar years commencing on the AGREEMENT's Effective Date and continuing to and including November 12, 2029, subject to termination by the City Manager or by EMPLOYEE, with or without cause, as hereinafter provided in Sections 3.3 and 3.4, at the conclusion of which this AGREEMENT shall automatically terminate. Prior to such automatic termination, the CITY shall have the option to extend the Term of this AGREEMENT for an additional three (3) years, subject to termination by the City Manager or by EMPLOYEE, with or without cause, as hereinafter provided in Sections 3.3 and 3.4.

Additionally, the Term of this AGREEMENT may be extended upon mutual concurrence from the City Manager and EMPLOYEE, as evidenced by a writing signed by both parties.

The CITY agrees that in the last year of the initial five-year Term of the AGREEMENT, and in the last year of the Term of the AGREEMENT should the Term of the AGREEMENT be extended beyond its initial five years, the annual evaluation will be performed at least six 1672

(6) months prior to the expiration of the term.

3.3 Termination by EMPLOYEE. EMPLOYEE may terminate this AGREEMENT at any time, provided EMPLOYEE provides the City Manager with at least sixty (60) days' advance written notice. In the event EMPLOYEE terminates this AGREEMENT, EMPLOYEE expressly agrees that EMPLOYEE shall not be entitled to any severance pay.

3.4 Termination by CITY. The City Manager may terminate this AGREEMENT at any time with or without cause, by providing written notice of the reason(s). The City Manager's right to terminate EMPLOYEE pursuant to this Section 3.4 shall not be subject to or in any way limited by the CITY's Rules and Regulations of the Personnel System (Resolution No. 1974-22), or any subsequent related resolutions, or past CITY practices related to the employment, discipline or termination of the CITY's employees. EMPLOYEE expressly waives any rights provided for the Police Chief under the CITY's Rules and Regulations of the Personnel System (Resolution No. 1974-22), Municipal Code, or under other local, state or federal law to any other form of pre- or post-termination hearing, appeal, or other administrative process pertaining to termination, except as to rights that by law cannot be waived, including, but not limited to, EMPLOYEE's rights under the Public Safety Officers Procedural Bill of Rights Act (Government Code sections 3300-3313). Nothing herein shall be construed to create a property interest, where one does not exist by rule of law in the position of Police Chief. Notwithstanding this Section 3.4, upon appointment to the Police Chief position, EMPLOYEE remains an at-will employee serving at the pleasure of the City Manager.
(a) Termination by the CITY for Cause. The City Manager may terminate this AGREEMENT at any time by providing EMPLOYEE with five (5) business days' written notice of the termination for cause and the facts and grounds constituting such cause. The term "cause" shall be defined to include any misconduct materially related to performance of official duties, including but not limited to any of the following: 1) breach of this AGREEMENT, 2) willful or persistent material breach of duties, 3) resume fraud or other acts of material dishonesty, 4) unauthorized absence or leave, 5) conviction of a misdemeanor involving moral turpitude (i.e., offenses contrary to justice, honesty, or morality), conviction of a misdemeanor DUI, or conviction of a felony (the CITY may, in its discretion, place EMPLOYEE on paid or unpaid administrative leave until resolution of charges brought against EMPLOYEE), 6) violation of the CITY's anti-harassment policies and/or a finding that legally prohibited personal acts of harassment against a CITY official or employee or legally prohibited personal acts of discrimination or retaliation against a CITY official or employee has occurred, 7) violation of the CITY's Municipal Code, ordinances, rules, and regulations, including but not limited to the CITY's Rules and Regulations of the Personnel System (Resolution No. 1974-22) and Administrative Policies, 8) use or possession of illegal drugs, 9) engaging in conduct tending to bring embarrassment or disrepute to the CITY, 10) any illegal or unethical act involving personal gain, 11) pattern of repeated, willful and intentional failure to carry out materially significant and legally constituted directions or policy decisions of the City Manager, and 12) gross misfeasance or gross malfeasance. If the City Manager terminates for cause this AGREEMENT and the services of EMPLOYEE hereunder, EMPLOYEE shall not be entitled to any severance. 1673

(b) Termination by City Manager Without Cause. By providing EMPLOYEE at least thirty (30) days' prior written notice thereof, the City Manager may terminate EMPLOYEE without cause but rather based upon management reasons such as implementing the CITY's goals or policies, including but not limited to: i) change of administration, or ii) incompatibility of management styles. In the event EMPLOYEE is terminated without cause, EMPLOYEE expressly agrees that EMPLOYEE shall not be entitled to any severance pay as the result of the termination of this AGREEMENT except as provided in Section 4.1 below. In the event employee is terminated without cause, Employee will be placed in the position of Captain, and Employee’s terms of employment shall be governed by the applicable Memorandum of Understanding, Personnel Rules, and any other document in effect at the time governing the terms of employment for Police Captains.

4.0 PERFORMANCE EVALUATIONS

4.1 Purpose. The performance review and evaluation process set forth herein is intended to provide review and feedback to EMPLOYEE so as to facilitate a more effective management of the CITY. Nothing herein shall be deemed to alter or change the at-will employment status of EMPLOYEE as Police Chief (as set forth in Section 1.5 above), nor shall this Section 5.0 be construed as requiring "cause" to terminate this AGREEMENT, or the services of EMPLOYEE hereunder.

4.2 Annual Evaluation. The City Manager shall conduct a formal or informal review and evaluate the performance of EMPLOYEE on an annual basis. Such review shall be conducted on or within four (4) weeks of the anniversary date of EMPLOYEE's appointment to the position of Police Chief, using an evaluation form to be approved by City Manager.

5.0 BENEFITS AND OTHER COMPENSATION

5.1 Professional Development.
(a) The CITY recognizes its obligation to the professional development of its Police Chief, and agrees that EMPLOYEE shall be given adequate opportunities to develop and maintain skills and abilities as a public administrator. EMPLOYEE is expected and encouraged to and does agree to participate in professional organizations and to attend area and regional meetings and conferences related to matters of interest to the CITY consistent with the time required for such attendance in relationship to EMPLOYEE's other responsibilities as determined by the City Manager. As budget permits, the CITY hereby agrees to budget an amount to be determined in the exercise of its sole discretion to pay the cost, travel and subsistence expense of EMPLOYEE for professional and/or official travel, meetings, and occasions adequate to continue professional development of EMPLOYEE and to adequately pursue necessary official functions for the CITY. These activities shall include membership in at least two professional associations (i.e., the International Association of Chiefs of Police, the California Police Chiefs Association), and attendance of at least two annual professional development conferences. EMPLOYEE shall be responsible for maintaining any professional certifications recognized as necessary or desirable in the performance of the duties hereunder. Tuition will be reimbursed to EMPLOYEE for professional and technical courses approved by the City Manager and taken in an accredited educational institution provided that: i) the subject matter of the course relates directly to and contributes toward the Police Chief position with the CITY; ii) EMPLOYEE has received at least a competent proficiency rating on the last performance evaluation report; 1674

and iii) EMPLOYEE has furnished evidence that the course has been completed with at least a "C" or "pass" grade.
(b) As permitted by the budget, and in an amount to be determined at the sole discretion of the CITY, the CITY agrees to budget and pay for travel and subsistence expenses of EMPLOYEE for short courses, institutes, and seminars that are necessary for EMPLOYEE's professional development and for the good of the CITY. As provided for in the budget, the CITY agrees to pay for professional dues and subscriptions of EMPLOYEE reasonably related to the professional growth, development, education and training of EMPLOYEE.
(c) All reimbursable expenses under this Section must be approved in advance by the City Manager.

5.2 Paid Leave.
(d) Sick Leave. EMPLOYEE shall be entitled to ninety-six (96) hours of sick leave annually, with the right to cash in a maximum of ninety-six (96) hours annually. A minimum of forty (40) sick leave hours must be left in the bank at time of cash out. Sick leave shall accrue at the rate of 3.69 hours per pay period. Any sick leave cash out request must be made no later than November 1st of each year, and payment of the cash out shall be made in the last check issued in November. Sick leave may only be accrued to a maximum of four hundred eighty (480) hours at which point sick leave accrual will cease until the accrued hours fall below the maximum of four hundred eighty (480) hours. Sick leave must be used and deducted from accruals on an hourly basis for time missed from normal work hours which for purposes of this section are deemed to be normal CITY operating hours. Upon termination for any reason, EMPLOYEE shall be entitled to one hundred percent (100%) of the unused sick leave on the books then existing.
(e) Vacation Leave. EMPLOYEE shall be entitled to two hundred (200) hours of vacation leave annually, with the right to cash in a combined maximum of eighty (80) vacation leave hours annually from any vacation leave bank. A minimum of eighty (80) vacation leave hours must be left in the regular vacation bank at time of cash out. If EMPLOYEE accrues greater than three hundred (300) hours of vacation time, then he may request an annual cash out of fifty percent (50%) of the total available vacation hours to be paid at his current pay rate. Vacation leave shall accrue at the rate of 7.69 hours per pay period. Vacation leave may only be accrued to a maximum of four hundred eighty (480) hours at which point vacation leave accrual will cease until the accrued hours fall below the maximum of four hundred eighty (480) hours. Vacation leave must be used and deducted from accruals on a hourly basis for time missed from normal work hours which for purposes of this section are deemed to be normal CITY operating hours. Upon termination, for any reason, EMPLOYEE shall be entitled to one hundred percent (100%) of the unused vacation leave on the books then existing.
(f) Executive Leave. EMPLOYEE shall be entitled to ninety-eight (98) hours annual accrual with a maximum accrual cap of two-hundred (200) hours. Leave will be earned at a rate of 3.77 hours per pay period. A maximum of ninety-eight (98) hours of Executive Leave may be cashed out annually.
(g) Holiday Leave. EMPLOYEE shall be granted the following holidays: New Year's Day, Martin Luther King Day, President's Day, Memorial Day, Juneteenth, Fourth of July, 1675

Labor Day, Veteran's Day, Thanksgiving, Day after Thanksgiving, Christmas Eve, Christmas and New Year's Eve. In addition, one (1) floating holiday will be credited to EMPLOYEE's Holiday Leave bank July 1st each year. Leave balances must be used during the fiscal year or they may be cashed out with City Manager approval. If the City Council recognizes an additional holiday for CITY employees, said holiday shall be extended to EMPLOYEE. Holiday leave must be used and deducted from accruals in increments of no less than one hour for time missed from normal work hours which for purposes of this section are deemed to be normal CITY operating hours. (h) Bereavement Leave. In the event of the death of a member of EMPLOYEE's family, including EMPLOYEE's spouse, domestic partner, parent, sibling, child, grandchild, or grandparent or any one of the same relatives of EMPLOYEE's spouse or domestic partner, EMPLOYEE shall be allowed with pay forty (40) hours of bereavement leave for each death of a family member. Bereavement leave must be used and deducted from the total allowed hours in increments of no less than five hours for time missed from normal work hours which for purposes of this section are deemed to be normal CITY operating hours.

5.3 Cafeteria/Health & Welfare Benefits. EMPLOYEE shall be entitled to receive from the CITY an annual cafeteria benefit in an annual amount capped at Twenty Thousand Dollars ($20,000.00), for the purchase of health and welfare benefits under any approved plan provided by the CITY. Said contribution shall first be used to provide for health insurance for EMPLOYEE. EMPLOYEE may use funds for any of the CITY's medical plans or, upon proof of coverage under another acceptable health plan as determined by the CITY's Human Resource Department, this amount may be taken as taxable income or converted to a 457 Plan or CITY-sponsored Medical Savings Account. EMPLOYEE may increase the benefit annually using CPI or the average of all CITY health insurance premium increases as long as it stays within the maximum parameters established by City Council for department heads. EMPLOYEE may elect to receive ninety-two and five-tenths percent (92.5%) of the balance in cash as CalPERS non- includable taxable income or converted to a 457 plan or CITY-sponsored Medical Savings Account.

5.4 Retirement.
(a) Retirement Plan. EMPLOYEE will be enrolled in the CITY's retirement plan with the California Public Employees' Retirement System (CalPERS), subject to the applicable benefit formula, terms and conditions provided in the contract between the CITY and CalPERS and also subject to applicable state law and regulations. It is the understanding of the Parties that Employee is an “Existing Classic Employee" under the Public Employees' Pension Reform Act of 2013 and will be covered by the 3% at 50. In the event of any conflict between this Agreement and the CITY's CalPERS contract or the applicable laws and regulations, the latter shall prevail.
(b) Employee Contribution. The CITY will continue to contribute 4% to the CalPERS employer paid member contributions for the retirement plan.

5.5 Automobile. EMPLOYEE's duties require that the Chief of Police shall have the exclusive and unrestricted use at all times during employment of a CITY vehicle for municipal purposes. The CITY shall provide all attendant operating and maintenance 1676

expenses and insurance. EMPLOYEE shall be governed by any and all CITY policies regarding the use of CITY vehicles. In the event the CITY vehicle provided to EMPLOYEE is unavailable or its use restricted from take-home use, EMPLOYEE shall receive a Two Hundred Fifty Dollar ($250.000) per month car allowance for use of a personal vehicle in pursuit of recognized official duties.

5.6 CITY Flexible Spending Plan. EMPLOYEE is entitled to participate in the CITY's Flexible Spending Plan to the same extent as enjoyed by any other employee.

5.7 Life Insurance. In addition to the annual cafeteria benefit, the CITY will pay annual premiums for life insurance for EMPLOYEE with a benefit/coverage amount of One Hundred Fifty Thousand Dollars ($150,000.00) during EMPLOYEE's employment.

5.8 Business Equipment. The CITY will finance at no interest to EMPLOYEE the purchase of any job-related personal tools or equipment, such as a computer, cell phone, etc., that serve the professional development of EMPLOYEE. Such tools or equipment shall be approved in advance by the City Council at its sole discretion and the amount financed shall not exceed the value of one month's base salary of EMPLOYEE. Repayment to the CITY shall be made by payroll deductions until the amount loaned is completely repaid. The maximum period for repayment shall be two (2) years. Should EMPLOYEE terminate employment, then the remaining loan amount repayment shall be accelerated and become fully due and owing as of the termination date.

5.9 Bonding. The CITY shall bear the full cost of any fidelity or other bonds required for EMPLOYEE under any law or CITY ordinance.

5.10 Education Pay. The CITY agrees to pay to EMPLOYEE the sum of Two Hundred and Seventy-Five Dollars ($275.00) per month as supplemental pay for having a Master's Degree. Education pay will increase to a sum of Five Hundred and Twenty-five Dollars ($525.00) per month as and for an education incentive for possessing a P.O.S.T.

Management Certification. Upon obtaining P.O.S.T. Executive Certification, education pay will increase to Six Hundred Dollars ($600.00) per month as and for an education incentive

5.11 Uniform Allowance. EMPLOYEE shall receive a Two Hundred Dollars ($200.00) per month uniform allowance for purchase of uniforms. The CITY shall provide EMPLOYEE with standard uniform items (5 shirts, 3 pants, tie, belt, jacket, shoes, duty belt & accessories) and an initial dress uniform, including pants, shirt, jacket, tie, hat, etc.

5.12 Utility Allowance. Should EMPLOYEE reside within the CITY limits, then EMPLOYEE shall be entitled to receive a utility credit in the amount of One Hundred Fifty Dollars ($150.00) per month against the cost of electric and water service during the period of such residency. In the event EMPLOYEE's spouse or a member of EMPLOYEE's household also is employed by the CITY and is eligible for this utility allowance, only one of either EMPLOYEE or EMPLOYEE's spouse or member of EMPLOYEE's household shall be eligible for such utility allowance.

5.13 Disability Program. EMPLOYEE agrees to pay the cost of membership in the CITY-approved short-term/ long-term disability insurance program. EMPLOYEE agrees that such premiums will be paid with after-tax dollars in order to maintain the tax-free benefit status to both the CITY and EMPLOYEE in the event benefits are paid. 1677

6.0 INDEMNIFICATION
To the extent mandated by the California Government Code, the CITY shall defend, hold harmless, and indemnify EMPLOYEE against any tort, professional liability, claim or demand, or other legal action arising out of an alleged act or omission occurring in the performance of EMPLOYEE's services under this AGREEMENT. This section shall not apply to any intentional tort or crime committed by EMPLOYEE, to any action outside the course and scope of EMPLOYEE's employment, or any other intentional or malicious conduct or gross negligence of EMPLOYEE.

7.0 OTHER TERMS - CONDITIONS OF EMPLOYMENT

7.1 The City Manager, in consultation with EMPLOYEE, shall establish any such other terms and conditions of employment as it may determine from time to time, provided such terms do not exceed the maximum salary and benefits approved by the City Council and are reduced to writing and signed by EMPLOYEE and the City Manager.

7.2 EMPLOYEE shall complete the California Police Officer Standards and Training (POST) management certification within eighteen (18) months after the first date of employment.

7.3 [RESERVED]

8.0 GENERAL PROVISIONS

8.1 Entire AGREEMENT. This AGREEMENT represents the entire AGREEMENT and understanding between the Parties and supersedes any and all other agreements and understandings, either oral or in writing, between the Parties with respect to EMPLOYEE's employment by the CITY and contains all of the covenants and agreements between the Parties with respect to such employment. No ordinances or resolutions of the CITY governing employment, including the Personnel System, shall apply unless specified herein. Each Party to this AGREEMENT acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by either Party, or anyone acting on behalf of either Party, which are not embodied herein, and that no other agreement, statement or promises not contained in this AGREEMENT shall be valid or binding upon either Party.

8.2 Amendment. This AGREEMENT may be amended at any time by the mutual consent of the Parties by an instrument in writing, which amendment shall require City Council approval.

8.3 Notices. Any notice required or permitted by this AGREEMENT shall be in writing and shall be personally served or shall be sufficiently given when served upon the other Party as sent by United States Postal Service, postage prepaid and addressed as follows:

To CITY:

City Manager City of Banning
P.O. Box 998
Banning, California 92220
To EMPLOYEE:

Vincent V. Avila
[On file with Human Resources Dept.]
1678

Notices shall be deemed given as of the date of personal service or upon the date of deposit in the course of transmission with the United States Postal Service.

8.4 Conflicts Prohibited. During the term of this AGREEMENT, EMPLOYEE shall not engage in any business or transaction or maintain a financial interest which conflicts, or reasonably might be expected to conflict, with the proper discharge of EMPLOYEE's duties under this AGREEMENT. EMPLOYEE shall comply with all requirements of law, including but not limited to, Sections 87100 et seq., Section 1090 and Section 1126 of the Government Code, and all other similar statutory and administrative rules.

8.5 Effect of Waiver. The failure of either Party to insist on strict compliance with any of the terms, covenants, or conditions of this AGREEMENT by the other Party shall not be deemed a waiver of that term, covenant, or condition, nor shall any waiver or relinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or any other times.

8.6 Partial Invalidity. If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.

8.7 Governing Law. This AGREEMENT shall be governed by and construed in accordance with the laws of the State of California, which are in full force and effect as of the date of execution and delivery by each Party hereto.

8.8 Government Code §§ 53243 - 53243.4. Assembly Bill 1344, which was subsequently enacted as Government Code §§ 53243 - 53243.4, sought to provide greater transparency in local government and institute certain limitations on compensation paid to local government executives. These statutes also require that contracts between local agencies and its employees include provisions requiring an employee who is convicted of a crime involving an abuse of his office or position to provide reimbursement to the local agency. These statutes are incorporated herein by reference. Accordingly, the Parties agree that it is their mutual intent to fully comply with these Government Code sections and all other applicable law as it exists as of the date of execution of this AGREEMENT and as such laws may be amended from time to time thereafter. Specifically, the following Government Code sections are called out and hereby incorporated by this AGREEMENT:
§53243. Reimbursement of paid leave salary required upon conviction of crime involving office or position.
§53243.1. Reimbursement of legal criminal defense upon conviction of crime involving office or position.
§53243.2. Reimbursement of cash settlement upon conviction of crime involving office or position.
§53243.3. Reimbursement of non-contractual payments upon conviction or crime involving office or position.
§53243.4. "Abuse of office or position" defined.
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EMPLOYEE represents that EMPLOYEE has reviewed, is familiar with, and agrees to comply fully with each of these provisions if any of these provisions are applicable to EMPLOYEE, including that EMPLOYEE agrees that any cash settlement or severance related to a termination that EMPLOYEE may receive from the CITY shall be fully reimbursed to the local agency if EMPLOYEE is convicted of a crime involving an abuse of EMPLOYEE's office or position.

8.9 Independent Legal Advice. The CITY and EMPLOYEE represent and warrant to each other that each has received legal advice from independent and separate legal counsel with respect to the legal effect of this AGREEMENT, or had the opportunity to do so, and the CITY and EMPLOYEE further represent and warrant that each has carefully reviewed this entire AGREEMENT and that each and every term thereof is understood and that the terms of this AGREEMENT are contractual and not a mere recital. This AGREEMENT shall not be construed against the Party or its representatives who drafted it or who drafted any portion thereof.

IN WITNESS WHEREOF, the CITY has caused this AGREEMENT to be signed and executed on its behalf by its Mayor, and duly attested by its officers thereunto duly authorized, and EMPLOYEE has signed and executed this AGREEMENT, all in triplicate. [SIGNATURE PAGE FOLLOWS]
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CITY OF BANNING POLICE CHIEF
Douglas Schulze, City Manager Vincent V. Avila
APPROVED AS TO FORM:

Serita Young, City Attorney
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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 2024-07 UA, Approving a Reimbursement in the Amount of $127,613.58 to the Banning Heights Mutual Water Company for Consultant Expenses Related to the San Gorgonio Flume Project
RECOMMENDATION:

Adopt Resolution 2024-07 UA.

BACKGROUND:

In the early 1900s, Consolidated Reservoir and Power Company, a Southern California Edison (“SCE”) predecessor, initiated construction of a hydroelectric project, including water conveyance facilities, which eventually consisted of two diversion dams on the East and South forks of the Whitewater River, concrete lined canals, two steel forebay tanks, two penstocks, two powerhouses, and associated transmission lines (“San Gorgonio Hydroelectric Project No. 344 Water Conveyance Facilities” or “San Gorgonio Flume” or “Project”).

Use of the Project by SCE was discontinued in 1998 after storms destroyed one of the powerhouse forebay tanks. Subsequently, SCE decided to not restore the power generation components of the project and to surrender its Federal Energy Regulatory Commission (“FERC”) power license. Discussion soon followed between SCE, the City of Banning, Banning Heights Mutual Water Company (“BHMWC”), and San Gorgonio Pass Water Agency (collectively referred to as “Parties”) on the transfer of ownership of the Project. In June of 2010, the Parties entered an “Agreement for Transfer of San Gorgonio Hydroelectric Project No. 344 Water Conveyance Facilities”, the agreement is also known as the “Four Party Transfer Agreement”, which recognizes the City, BHMWC and the San Gorgonio Pass Water Agency as the Participating Entities. As part of the Four Party Transfer Agreement, it was determined that SCE would restore and repair the facilities and transfer ownership to the City of Banning and BHMWC. Additionally, Section 4.b “Regulatory Approvals - Use Permit, Long Term Easement or Power License” obligates the Participating Entities of acquiring all necessary approvals for the continued operation of the Project.

On March 26, 2013, City Council approved Resolution 2013-07UA, approving an “Agreement for the Rehabilitation and Maintenance Allocation of Responsibilities and Rights for San Gorgonio Hydroelectric Project No. 344 Water Conveyance Facilities” (“Flume Maintenance Agreement”). The Flume Maintenance Agreement defines the terms by which the City of Banning and BHMWC will continue to operate the San Gorgonio Flume once it is transferred to the Parties.

Specifically, and pertaining to Resolution 2024-XXUA, Article 4.0 “Design, Alternative Restoration Plan and Power Generation", Section 4.1 “Design and Permitting Team” of the Flume Maintenance 1689
Agreement obligates the City of Banning to contract, pay for, and direct the consultants, with BHMWC having unrestricted access to these consultants. Additionally, Section 4.1 recognizes Mr. Steve Stockton as member of the “Permitting Team”.

Aspen Environmental Group
The San Gorgonio Flume is located in part on National Forest System lands managed by the United States Forest Service (USFS), and in part on City-owned lands. In and around 2014 the USFS took a firm position that in order for the San Gorgonio Flume to remain on National Forest System lands, the Parties would have to prepare and submit a Special Use Permit application and eventually acquire a Special Use Permit from the USFS.

Recognizing that the City would require assistance in negotiating with the USFS and eventually preparing an SUP application, City Council approved Resolution 2015-68, “Approving a Professional Services Agreement with Aspen (“Aspen”) Environmental Group to Provide Environmental and Permitting Services Related to the Flume”. The agreement with Aspen was amended on May 24, 2016 by City Council’s approval of Resolution 2016-07UA to increase the contract amount.

On September 13, 2016 SCE received a letter from Christine A. Hill, USFS District Ranger, stating that a SUP would have to be received by January 3, 2017 or the temporary use permit would be revoked and the temporary pipeline which delivered water to the communities of the City of Banning and BHMWC would cease to operate. The responsibility of preparing the SUP application fell on the City and BHMWC as stated in the Four Party Transfer, Section 4.b, as mentioned above.

Soon after receiving the letter from Christine Hill, it was identified that the City’s contract with Aspen was nearly exhausted. It was also noted that the level of effort to accomplish completing the SUP application and back up documentation would require that the work commence as soon as possible. At that time it was determined that due to scheduling constraints in getting an amendment to the Aspen contract on a City Council agenda for approval, the quickest way to begin the work would be to have BHMWC enter into a contract with Aspen to commence the work in order to the meet the January 3, 2017 deadline.

BHMWC entered into a contract with Aspen with the understanding that the City would reimburse BHMWC due to the City’s responsibility to pay for consulting expenses as required in Section 4.1 of the Flume Maintenance Agreement as described above. The amount spent by BHMWC for work on the SUP application amounted to $94,394.50.

Steve Stockton
Mr. Steve Stockton has been an active participant (e.g. meeting attendance, design review, etc.) in the Flume negotiations since the execution of the Flume Maintenance Agreement. BHMWC was paying for Mr. Stockton’s consultant services, which should have been an expense paid for by the City per Section

4.1 of the Flume Maintenance Agreement. The expense from February, 2016 to November, 2021 amounts to $31,816.44.

JUSTIFICATION:

Per Section 4.1 of the Flume Maintenance Agreement, the City is obligated to pay for all consultant expenses related to the design review and permitting efforts. BHMWC has covered costs associated with these activities that should have been paid for by the City.

FISCAL IMPACT:

If approved, the City would reimburse BHMWC a total of $127,613.58, which will first be credited to BHMWC to cover any outstanding balances and the remainder, if any, will be paid from Account No. 660-6300-471.33-11.

ALTERNATIVES:

Do not approve Resolution 2024-07 UA and provide staff with alternative direction, if any. 1690
BUDGETED?:

No
CONTRACT/AGREEMENT:

No
ATTACHMENTS:

1. Resolution 2024-07 UA.docx

2. 2010 Transfer Agreement between SCE and PEs - 4 party .pdf

3. 2013 Agreement Banning BHMWC Rehab and Maint Responsibilities COB Signed.pdf

4. 9-13-16 C_Hill Letter.pdf

5. CC Resolution No. 2015-068 Aspen Award 7.14.15.pdf

6. Resolution No. 2016-07 UA Aspen Amendment.pdf

7. Resolution No. 2017-07 UA-Aspen Environmental.pdf

8. UA Resolution No. 2018-19.pdf

9. Banning Heights Bill Payments Aspen Enviro.pdf

10. Banning Heights Bill Payment Stephen Stockton.pdf
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Resolution 2024-07 UA

RESOLUTION 2024-07 UA

A RESOLUTION OF THE UTILITY AUTHORITY OF THE CITY OF BANNING, CALIFORNIA, APPROVING A REIMBURSEMENT IN THE AMOUNT OF $127,613.58 TO BANNING HEIGHTS

MUTUAL WATER COMPANY FOR CONSULTANT EXPENSES RELATED TO THE SAN

GORGONIO FLUME PROJECT
WHEREAS, since the early 2000’s Southern California Edison (“SCE”) has been in the process of surrendering its Federal Energy Regulatory Commission (“FERC”) power license to operate and maintain San Gorgonio Hydroelectric Project No. 344 Water Conveyance Facilities, which said water conveyance facilities (“Project”) provide the communities of the City of Banning and Banning Heights Mutual Water District (“BHMWC”) with a local vital supply of water; and WHEREAS, in June of 2010, the City of Banning, BHMWC, SCE and the San Gorgonio Pass Water Agency (“SGPWA”), entered into an “Agreement for Transfer of San Gorgonio Hydroelectric Project No. 344 Water Conveyance Facilities”, the agreement is also known as the “Four Party Transfer Agreement”, which recognizes the City, BHMWC and the Pass Water Agency as the “Participating Entities”; and
WHEREAS, the Four Party Transfer Agreement obligates the Participating Entities of acquiring all necessary approvals (e.g. regulatory permitting, etc.) for the continued operation of the Project; and
WHEREAS, on March 26, 2013, City Council approved Resolution 2013-07UA, approving an “Agreement for the Rehabilitation and Maintenance Allocation of Responsibilities and Rights for San Gorgonio Hydroelectric Project No. 344 Water Conveyance Facilities”, (“Flume Maintenance Agreement”); and
WHEREAS, the Flume Maintenance Agreement obligates the City of Banning to contract, pay for, and direct the consultants, with BHMWC having unrestricted access to these consultants more whereas statements as needed; and
WHEREAS, BHMWC incurred consultant costs in the amount of $127,613.58 related to the planning/design oversight and regulatory permitting that should have been paid for by the City of Banning associated with Aspen Environmental Group and Steve Stockton.

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

SECTION 1. The Banning Utility Authority approves the reimbursement in the amount of $127,613.58 to Banning Heights Mutual Water Company for consultant expenses related to the San Gorgonio Flume Project.

SECTION 2. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions. 1692
Resolution 2024-07 UA

PASSED, APPROVED AND ADOPTED this 12th day of November 2024.

Alberto Sanchez, Chairperson
Banning Utility Authority
ATTEST:

Caroline Patton, Secretary
Banning Utility Authority
APPROVED AS TO FORM:

Serita R. Young, Authority Counsel
Richards, Watson & Gershon
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Resolution 2024-07 UA

CERTIFICATION:

I, Caroline Patton, Secretary of the Banning Utility Authority, do hereby certify that the foregoing Resolution 2024-07 UA, was duly adopted by the Utility Authority 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, Secretary
Banning Utility Authority
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075)

AGREEMENT FOR REHABILITATION AND MAINTENANCE

ALLOCATION OF RESPONSIBILITIES AND RIGHTS FOR
SAN GORGONIO HYDROELECTRIC PROJECT NO. 344

WATER CONVEYANCE FACILITIES

THIS AGREEMENT FOR REHABILITATION AND MAINTENANCE OF
SAN GORGONIO HYDROELECTRIC PROJECT NO. 344 WATER CONVEYANCE FACILITIES (" Agreement') is effective as of - A6- 10 by and between the CITY OF BANNING, a municipal corporation (" Banning"), and, BANNING HEIGHTS MUTUAL WATER COMPANY, a California corporation (" Banning Heights"), both of which may be collectively referred. to herein as " Parties" and individually referred to herein as " Party." REC' ITAL: S
A. Recitals and Capitalized Terms. The recitals in this Agreement constitute part of this Agreement and each Party shall be entitled to rely on the truth and accuracy of each recital as an inducement to enter into this Agreement. The capitalized terms used in these Recitals and throughout this Agreement shall have the meaning assigned to them in Article 1.

Any capitalized. teams not defined in Article 1 shall have the meaning otherwise assigned to them in this Agreement, or apparent from the context in which they are used.

B. Previous Agreements. Historical events and previous agreements relating to this Agreement include, but are not limited to, the following:

1. In the early 1900s, Consolidated Reservoir and Power Company Consolidated"), a Southern California Edison (" SCE") predecessor, initiated construction of a hydroelectric project, including water conveyance facilities, which eventually consisted of two diversion dams on the East and South forks of the Whitewater River, concrete lined canals, two steel forebay tanks tone of which has been removed), two penstocks, two powerhouses, and associated transmission lines (" Project").

2. On January 13, 1913, Consolidated entered into an agreement with the Banning Water Company, a Banning predecessor, to provide Banning Water Company with water from the Project after Consolidated used. the water for generating power. Banning planned to use the water for domestic and irrigation purposes ( the " 1913 Banning Agreement").

3. On December 30, 1913, Consolidated entered into a conveyance to Banning Heights granting Banning Heights certain water conveyance facilities and Consolidated' swater rights, subject to use ofthe water by Consolidated for its Project and to the terms of the 1913 Banning Agreement ( the " 1913 Banning Heights Conveyance").

4. On July 1, 1933, San Gorgonio Electric Corporation, another SCE predecessor, entered into an agreement with Banning Heights on allocating the costs of maintaining the Project water conveyance facilities from the Whitewater River to the second power plant ( the " 1933 Maintenance Ageemment"). The 1913 Banning Agreement, the 1913 Banning Heights Conveyance and the 1933 Maintenance Agreement shall be referredto collectively as the " Flume Agreements."
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S. By order entered on April 23, 1928, in Book 1 of Orders of Determination,

predecessor to the State Water Resources Control Board, Banning Heights, San Gorgonio Power Company, another SCE predecessor, and Banning Water Company, a Banning predecessor, are jointly entitled to divert 13. 26 cubic feet per second of the natural flows of the Whitewater River f_
the " Whitewater River Adjudication") into the Project, subject to provisions of the Flume Agreements, arr. ong other things, as referenced in the Agreement for Transfer of San Gorgonio Hydroelectric Project No. 344 Water Conveyance Facilities, dated February 1, 2008 (" Transfer Agreement").

6. In 1926, the San Gorgonio Power Company, a predecessor to SCE, was issued License 550 by the then Department of Public Works, Division of Water Rights for 13. 26 cubic feet per second ( which is understood to be approximately 9, 600 acre feet per year) the amount Banning, Banning Heights and SCE arc entitled to divert from the Whitewater River pursuant to the Whitewater River Adjudication.

7. SCE' s predecessor obtained a license from the Federal Energy Regulatory Commission (" FERC"), which agency was at that time named the Federal Power Commission, to operate the Project in 1923. The Project is designated on the FERC license as San Gorgonio Hydroelectric Project No. 344. I:

8. SCE, obtained a new license from FERC in 1983, which license expired. on April 26, 2003. FERC has issued annual licenses to SCE for the Project until the ultimate disposition of the Project is determined, which is pending as SCE' s September 28, 2010 Application. for Surrender of License for the San Gorgonio Nos. 1 and 2 Hydroelectric Project E. RC No. 344)(" Application to Surrender").

C. Intent of the Parties.

1. SCE has not operated the Project to generate electricity since 1998 due to failure of the 900, 00 gallon steel forebay tank (Tank No. 1) located above Powerhouse No. 1 and due to failure of the Project canal below Raywood Flat.

2. Banning and Banning Heights desire to obtain title to the water conveyance facilities associated with the Project, which are more fully described and defined herein as the " Facilities" under Article 1 ( Definitions), and SCE desires to convey title to the Facilities on the terms and cone itions set forth ir. the Transfer Agreement.

3. Banning and Banning Heights shall be parties to any agreement with SCE regarding repair and disposition of the Facilities, it different from. the current form of the Statement of. Work attached as Exhibit "D" to the Transfer Agreement.

4. It is the intent of Banning and Barreling Heights to work cooperatively to insure that their respective citizens have a plentiful supply of clean potable water. To that end, each Party will support all efforts undertaken by the other Party to carryout the provisions of this Agreement and the Transfer Agreement.
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5. The Facilities' capacity, as restored and repaired by SCE, shall not be less than 13 26 cubic feet per second, though the Parties recognize that said quantity may downsize over its course through and toward the end ofthe Facilities, which is located in or near Banning and Banning Heights.

6. Though the San Gorgonio Pass Water Agency (" Pass Agency") was a party to the four -party Transfer Agreement, the Pass Agency is not a patty to this Agreement nor
does the Pass Agency have any ownership or other rights with regard to the Facilities, however, the Parties seek to maintain a good working relationship with the Pass Agency.

7. There is an unquantifcd. value associated with the Facilities, including its rights -of -way and water conveyance capability. There is an unquantified cost to developing hydro -electric power in. the Facilities as well as an , inknown value to such power generation.

There is an unquantified cost associated with the maintenance of the Facilities to ensure the maximum conveyance of water to Banning Heights and Banning. There is an unquantified value associated with 13a- raing providing a secondary water supply to Banning Heights from Banning' s underground water supply in Banning Canyon. Finally, Banning Heights with a small customer base has limited ability to pay for large- scale costs. Quantifying these costs and values is probably speculative, and thus an exchange based upon the Parties' • differing interests is a reasonable approach.

D. SCE Transfer Agreement

1. The Transfer Agreement (which is attached as Exhibit 1 to this agreemcnt) requires SCE to: (i) restore the Facilities to an acceptable condition as set forth below in Recital D. 3; and ( ii) proceed with its pending Application to Surrender or to take other appropriate steps to facilitate the transfer of the Project and title to the Facilities to the Parties, which could include SCE withdrawing its Application to Surrender to file an application to transfer its existing license to Banning or the Parties ( Transfer Agreement, Section 4. a (License Surrender and Transfer)).

2. The Transfer Agreement requires Banning and Banning Heights to proceed with due diligence in seeking approval from the Federal Energy Regulatory Commission FERC"), the United States Forest Service, and any other appropriate agency for the right to locate, operate, and maintain the Facilities in. the repaired/ restored. condition to be completed by SCE ( Transfer Agreement, Section 4. b (Use Permit, Long -Term Easement, or Power License)).

3. Pursuant to the Transfer Agreement, SCE is required to undertake the work to restore and repair the Facilities as set forth in the Statement of Work attached as Exhibit D" to the Transfer Agreement, Bach that Banging and Banning Heights shall not become responsible for undertaking completing restoration or repair of the Facilities, nor shall SCE sirnply provide Banning or Banning Heights with a payment or other consideration for Banning or Banning Heights to undertake such repairs prior to conveyance ofthe Facilities.

4. Although. the Transfer Agreement requires SCE to rehabilitate the facilities and transfer them in their rehabilitated condition to Banning Heights, it does not resolve the issue of their long term maintenance but provides that this would be resolved through a 3 1731
subsequent agrcement between. Banning and Banning Heights and this Agreement i.s such agreement.

E. This Agreement. This Agreement establishes the terms by which Banning and Banning Heights will operate and maintain the Facilities after SCE restores/ repairs the Facilities as set forth in this Agmm. cnt and the Transfer Agreement.

F. Mutual Agreement. It is in the best interests of the Parties to execute this A. greernent because the Facilities will be restored/ repaired by SCE, allowing the Parties to receive water delivered through and by the Facilities. Banning Heights owns certain facilities but does not have the resources to deal with the natural and challenging terrain on which much of the Facilities are located nor does Banning Heights have the resources for future on -going and significant maintenance that may arise. Banning is a major entity in the San Gorgonio Pass area with facilities in five groundwater basins. Banning is entitled to overflow from water not used by Banning Heights, which provides great value to Banning

AGREEMENT
NOW THEREFORE, in consideration of the mutual promises and covenants herein contained, and having determined that the forgoing recitals are true and correct and should be and hereby are incorporated into this .A. greement, the Parties agree as follows:

ARTICLE 1. 0

DEFINITIONS
In the event of conLlict between • the definition of a term as found in State law or regulations or Banning ordinances, and this Agreement, the definition in this Agreement shays., unless otherwise mutually agreed to in writing by the Parties, supersede the definition found elsewhere.

1. 1913 Banning Agreement " 1913 Banning Agreement" means the agreement entered into on January 13, 1913 between Consolidated and the Banning Water Company to provide Banning Water Company with water from the Project after Consolidated used the water for generating power.

1. 2 1913 Banning Heights Conveyance. " 1913 Banning Heights Conveyance" means the agreement entered into on December 30, 1913 between. Consolidated and Banning Heights
water rights,
which
subject
granted
to
Banning
use of the
Heights
water
certain
by Consolidated
water conveyance
for its Project
facilities
and
and
to the
Consolidated' s
terms of the
Banning Water Company contract.

1. 3 1933 Maintenance Agreement. " 1933 Maintenance Agreement" means the agreement entered into on July 1, 1933 between San Gorgonio Electric Corporation and Banning Heights on allocating the costs of maintaining the Project water conveyance facilities from the Whitewater river to the second power plant.
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1. 4 Agreement. " Agreement" means this Agreement, including all exhibits and attachments which are incorporated herein by reference, as this Agreement may be amended.

The exhibits include the following:

Exhibit "A": Map ofthe Facilities
Exhibit "B": Map ofBanning Heights Territory
Exhibit " C": Agreement for Transfer of San Gorgonio Hydroelectric Project No. 344 Water Conveyance Facilities and Exhibits ( Transfer Agreement)
Exhibit "D": Water Rate Charges to Banning Heights

1. 5 Agreements. ". Agreements" means, in adcition to dais Agreement, the agreements identified above in Recital B.

1. 6 Alternative Restoration Plan. " Alternative Restoration Plan" shall have the meaning as set forth below in Section 4. 2.

1. 7 Applicable Law. " Applicable Law" means all statutes, case authorities, rules, regulations, guidelines, actions, determinations, permits, orders, or requirements of the United States, State, County, City and local and regional government authorities and agencies having applicable iurisdiction, that apply to or govern the Facilities, the Project or the performance of the Parties' respective obligations hereunder, including any of the foregoing which concern health, safety, fire, environmental protection, labor relations and prevailing wages, if applicable„ mitigation monitoring plans, building codes, zoning, and licensing and permitting of the Facilities for ownershp, transfer, maintenance, or operation.

1. 8 Application to Surrender. " Application to Surrender" means SCE' s application pending before the FERC entitled " Application for Surrender of License for the San Gorgonio Nos. 1 and 2 Hydroelectric Project ( FERC No. 344)."

1. 9 Assignment. " Assignment" shall have the meaning as set forth below in Article

13. All forms of use of the verb " assign" and the nouns " assignment" and " assignee" shall include all contexts ofhypothecations, sales, conveyances, transfers, leases, and assignments.

1.0 Banning. " Banning" means the City ofBanning, a municipal corporation.

1.1 Banning H. eights. "Banning IIeights" means Banning Heights . Mutual Water Company, a California nnutual benefit corporation.

1.2 Banning Water Company. " Banning Water Company" means the predecessor to Banning that entered into the 1913 Banning Agreement, as identified. above in Recital B.

1.3 Best Management Practices (" BMP"). "Best Management Practices," "BMP," or " BMPs," means structural, nonstructural, and managerial techniques recognized to be the most effective and practical means to repair, maintain, and operate the Facilities. - 5 1733

1.4 CEPA. " CEQA" means the California Environmental Quality Act ( California • Public Resources Code §§ 21000 et seq.) and its implementing regulations and guidelines California Code of Regulations, Title 14, §§ 21000 et seq.) including future amendments to or re -codification thereof.

1.5 City Council. "City Council" means the governing body of l3anning.

1.6 City Manager. " City Manager" means the City Manager ofBanning.

1.7 Claims or Liabilities. " Claims or Liabilities" means any challenge by water customers of either Party or any other third party (1) to the legality, validity or adequacy of the Transfer Agreement or Ibis Agreement, (ii) concerning the repair, maintenance or operation of the Facilities, whether an act or omission by either Party or other regulatory agencies pertaining to the repair, ina ntenance, or operation of the Facilities, or ( iii) for personal injury, liability, damages or loss arising from or consequential to repair, maintenance, or operation of the Facilities.

1.8 Consolidated Reservoir and Power Company. " Consolidated Reservoir and Power Company" means the SCE predecessor that initiated construction of the Project, and entered into the 191. 3 Banning Agreement and the 1913 Banning Heights Conveyance as identified above in Recital 3.

1.9 Consolidated. " Consolidated" means Consolidated Reservoir and Power Company.

1. 20 Design and Permitting Team. "Design and Permitting Team" or " Team" shall have the meaning as set forth below in Section 4. 1.

1. 21 Developed Acre. " Developed Acre" means any acre or legally divided portion thereof that is developed for residential use or agricultural production, but excludes all other land until such time as it so developed.

1. 22 Director. ' Director" moans a member of the Board of Directors of Banning Heights.

1. 23 Director of Public Works. " Director of Public Works" means Banning' s Director ofPublic Works or the Director of Public Works' designee.

1. 24 Drought Conditions. " Drought Conditions" means an extended period of months or years when a
region sustains a deficiency in its water supply whether surface or underground water, which may occur when a
region receives consistently below average
precipitation, and may be established by a declaration of drought from an authorized representative of a State, County, or local entity for that region.

1. 25 Effective Date. " Effective Date" means the date this Agreement becomes effective as set forth above on page 1, after being fully executed and duly approved by Banning Heights and Banning.
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1. 26 Environmental Law. " Environmental Law" means any federal, state or local statute, ordinance, rule, regulation, order, consent decree, judgment or common- law doctrine, and provisions and conditions of permits, licenses and other operating authorizations relating to:
i) pollution or protection of the environment, including natural resources; ( ii) exposure of persons, including employees, to Hazardous Materials or other products, raw materials, chemicals or other substances; (iii) protection of the public health or welfare from the cflbcts of by- products, wastes, emissions, discharges or releases of chemical substances from industrial or commercial activities; or, (iv) regulation of the manufacture, use or introduction into commerce of chemical substances, including, without limitation, their manufacture, formulation, labeling, distribution, transportation, handling, storage and disposal.

1. 27 Facilities. " Facilities" shall refer to and mean the current water conveyance facilities, including the flume, depicted in Exhibit " A" attached to this A. greement and as described in Recitals " 3' and " K" ofthe Transfer Agreement, which are fully incorporated herein. by reference. A copy of the Transfer A. greernent is attached to this Agreement as Exhibit "C".

1. 28 Federal Energy Regulatory Commission. " Federal Energy Regulatory Commission" means the federal agency that regulates, monitors, and investigates, among other things, electricity and hydropower for licensing of non- federal hydroelectaic projects, overseeing related environmental matters, and inspecting non- federal hydropower projects for safety conditions and compliance with terms and conditions in a FERC License.

1. 29 FERC. "FERC" means the Federal Energy Regulatory Commission.

1. 30 FERC License. " FERC _license" means a license from FERC to operate a nonfederal hydroelectric project.

1. 31 FERC No. 344. " FERC No. 344" means the license teat FERC first granted to Consolidated in the early 1900s, reissued to SCE in 1983, and which is now the subject of the pending Application to Surrender.

1. 32 First Tier Rates. " First Tier Rates" shall have the meaning as set forth below in Section 8. 2.

1. 33 Force Majeure. ". Force Majeure" shall have the meaning as set forth below in Section 17. 8.

1. 34 Flume Agreements. " Flume Agreements" means the 1913 Banning Agreement, the 1913 Banning Heights Conveyance, and the 1933 Maintenance Agreement, as identified above in Recital B.

1. 35 Inter -Tie. "Inter -Tie" means a water supply connection between the water systems ofBanning and Banning Ileights,

1. 36 License. " J ieense" means a license, and the process related to acquisition of the license, for a Use Permit fror.. n. the United States Forest Service, as identified below in Section

5. 2.
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1. 37 License # 550. " License # 550" means the license granted to the predecessor of SCE by the State Water Resources Control Board for the joint right to divert 13. 26 cubic feet per second from the Wbitewater River, as part of the Whitewater River Adjudication.

1. 38 Local Agency. " Local Agency" means any public agency authorized to levy, create, or issue any form of land -secured financing over all or any part of the Project; including, but not limited to, Banning_

1. 39 Mascaro Litigation. " Mascaro Litigation." means the pencirg litigation initiated on April 7, 2011 by Stephen J. Mascaro and Betty D. Massaro entitled Mascaro v. Banning Heights liluual Water Company, Southern California _Edison Company, City of Banning, Lany Walborn, Robert Poland, Michael Sichta, Charles Perkins, and Does 1 through 100, Inclusive, San Bernardino Superior Court Case No. CWDS110447.

1. 40 NEPA. " NEPA" means the means the National Environmental Policy Act 42 United States Code, §§ 21000 et seq.) and its implementing regulations and guidelines including future amendments to or re -codification thereof:

1. 41 Overflow. " Overflow" means water that is not used by Banning and Banning Heights for direct domestic, stock watering, and irrigation purposes, and that which Burling is entitled to under the Whitewater River Adjudication to spread and store underground in San. Gorgonio Canyon to be used at a later time for beneficial purposes.

1. 42 Pass Agency. " Pass Agency" means the San Gorgonio Pass Water Agency which is a California special district and also a party to the Transfer Agreement.

1. 43 Project. " Project" means the hydroelectric project, including water conveyance facilities, as set forth above in Recital B.

1. 44 Reasonable Amount of Water. " Reasonable Amount of Water" means four (4) acre- feet ofwater per year for each Developed Acre.

1. 45 Reduced Water Threshold. " Reduced Water Threshold" shall have the meaning as set forth below in Sections 8. 2.

1. 46 Rehabilitation. " Rehabilitation" shall have the meaning as set forth below in Section 5. 1.

1. 47 Report of licensee. " Report of Licensee" means the triennial reports required by the State Water Resources Control Board for licenses it has issued.

1. 48 Restoration Plan. " R. cstorati on P lan" means restoration of the Facilities, as set forth below in Article 5 and more fully in. the Transfer Agreement.

1. 49 San Gorgonio Electric Corporation. " San Gorgonio Electric Corporation" means the predecessor to SCE that entered into the 1933 Maintenance Agreement, as set forth above in. Recital B.
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1. 50 SCE. " SCE" means Southern California Edison.
131 Southern California Edison. " Southern California Edison" is an investor -owned public utility company that provides electricity throughout Southern California, and is the current owner of the :Project, F. RRC license No. 344, and SWRCB License # 550, and also is a party to the Transfer Agreement.

1. 52 State Water Resources Control Board. " State Water Resources Control Board" is a public agency within the California Environmental Protection Agency, which, among other things, regulates surface water diversions in the State of California.

1. 53 SWRCB. "SWRCB" means the State Water Resources Control Board.

1. 54 Tiered Rates. " Tiered. Rates" shall have the meaning as set forth below in Section 9. 2.

1. 55 Transfer Agreement. " Transfer Agreement" means the Agreement fcr Transfer of San Gorgonio Hydroelectric Project No. 344 Water Conveyance Facilities, dated February 1, 2008, by and between Banning, Banning Heights, SCE, and the Pass Agency.

1. 56 Use Permit. " Use Permit" .means a
perrnit granted by the United States Forest
Service (" USES") to use Forest Service land in a way that provides a benefit to the general public, including protection of natural resources.

1. 57 Water Emergency. " Water Emergency" or " Water Emergencies" means a condition or circumstance in which an insufficient amount ofpotable water is available to meet the needs of a community, and such Emergency may be declared by Banning pursuant to Water Code §§ 350 et seq.

1. 58 Water Rights. " Water Rights" in this Agreement means the rights that Banning, Banning Heights, and. SCE arc entitled to in the Wh itewater River under the Flume Agreements and the Whitewater River Adjudication.

1. 59 Whitewater River Adjudication. " Whitewater River Adjudication" means the statutory adjudication of the Whitewater River system that culminated in the Order of Determination entered on April 23, 1928 and entered in Book 1 of Orders of Determination,

ARTICLE 2. 0
TERM

2. 1 Term.. The covenants, conditions and restrictions contained in this Agreement shall remain in effect for a period of forty (40) years from the date this Agreement was executed.

At the expiration of said forty (40) year period the tern of this Agreement shall be automatically renewed for successive five ( 5) year periods, unless one of the Parties provides the other Party written notice of its intent not to extend the term within one hundred twenty ( 120) days prior to the expiration of the initial team or any extended term. 9 1737

2. Survival of Certain Provisions. All indemnifications, representations and warranties of the Parties herein, and any other rights and obligations of the Parries expressly stated to survive the termination of this Agreement, shall survive such termination.

2. 3 Effective Date. The Effective Date is the date set forth above under Section 1. 25.

2. 4 Termination for Breach. This Agreement may be terminated due to the occurrence of a breach in accordance with the procedures set forth below in Article 14.

ARTICLE 3. 0

OWNERSHIP AND CONSIDERATION

3. 1 Conveyance. ' The Facilities and related obligations as set forth in the Transfer Agreement and in this Agreement shall be conveyed from. SCE to Banning Heights and immediately, if not concurrently, from Banning Heights to Banning for the consideration. provided in this Agreement; however, there should be no upfront monetary consideration from either Party.

3. 2 Consideration. As consideration for this Agreement, and except for: (i) Drought Conditions or Water Emergencies; (ii) regulatory changes beyond the control of Banning that adversely impact the Facilities, water supplies or delivery of water from. the Facilities; or, iii) Acts of God impacting the Facilities' water delivery and as otherwise as qualify as Force Majeure, Banning will operate and maintain. the Facilities so as to convey to Banning Heights a portion of its historic Water Rights as described herein, without cost to Banning Heights, which for purposes of this Agreement shall be deemed to he a Reasonable Amount of Water for each Developed Acre among its total existing 850 acres.

3. Payment of Rehabilitation of the Facilities.._ Pursuant to the Transfer Agreement, SCE will pay ninety percent ( 90%) and Bmning will pay ten percent ( 10%) of the actual cost for completing repairs as set forth in Exhibit " D" of the Transfer Agreement.

Notwithstanding the foregoing, nothing herein shall require Banning to pay more than One Million Two Hundred Thousand Dollars ($ 1, 200, 000.) unless otherwise approved by Banning explicitly in writing. Banning Heights is not responsible for any cost of said work.

ARTICLEIE 4. 0
DESIGN, ALTERNAITVE RESTORATION PLAN; AND POWER GENERATION

4. 1 Design and Permitting Team. The Parties shall establish a Design and Permitting Tearn (" Team") for the rehabilitation of the Facilities (the " Rehabilitation"), with the Parties' goal being to develop a system which will minimize future maintenance expense. The Permitting Team will consist of the following; whc will perform the designated responsibilities:
i) Steve Stockton, ( rehabilitation design and construction management); ( ii) Roy McDonald, permitting processes and costs of the consultants associated with seeking the License); (iii) ail SCE Representative, and ( iv) the City .Director of Public Works ( Chair and Tearn 1, eader.). The Team shall also consist of a
representative from SCE. Banning will contract, pay for, and direct the consultants, with Bannirg Heights having unrestricted access to these consultants. 10 1738
Banning will provide Banning Heights with written notice along with cost estimates and a sixty- day (60) period to determine ifBanning Heights will participate;
b) Banning Heights may elect a percentage participation in the power generation. project; but not less than a ten percent ( 10%) share; In exercising its election, Banning Heights must pay Banning a deposit based off its elected percentage share of the estimated cost ( including contingencies);
d) Banning Heights shall be responsible for its elected percentage share of the ultima: c actual cost, and shall pay any such shortfall over the deposit, or receive reimbursement within sixty ( 60) days of the Notice of Completion of the project; and
Although any construction shall be undertaken through contacts led by Banning, Banning Heights shall be entitled to frilly monitor construction.

If Banning Heights elects not to participate in installing and maintaining power generation and distribution equipm. ent, or ifBanning Heights fails to make the deposit or pay its percentage costs when such becomes clue and payable, Banning Heights shall not have a right to
receive power or to receive a share in any revenue generated from such. operations.

4. 2 Alternative Restoration Plan. Restoration of the Facilities within the existing F3RC footprint, anticipated to be via tunneling or a trestle system, is the Parties' preferred method but this method may not be feasible. If such method is determined not to be feasible by the Parties' Design and Permitting Team as identified above at Section 4.1, diversion at Raywood Flats through Burnt Creek may be the most likely direction for the Facilities, in which ease third -party casement andlor property acquisition from a private landowner may become neces sary.

4. 3 Power Generation. Banning may explore generation of power from the Facilities as required by, and wifnin the time stated in, the FERC License. Such power generation shall be at Banning' ssolo discretion subject only to the requirements of the FERC license. If Banning decides to proceed with power generation from the Facilities, Banning shall offer to Banning Heights the opportunity to participate as follows:
a)
0)
e)
ARTICLE 5. 0

LICENSING AND PERMITTING

5. 1 New Use Permit License. A new license should be pursued by Banning as the applicant and licensee for the operation of the Facilities, at some undetermined later point in time. The license process is the Use Permit process through the United State Forest Service USFS") (the " License"). Banning would be the permit applicant, due in part to the Parties' understanding that a joint permit is unacceptable to USFS. Banning reserves the exclusive right to control decisions in seeking- the License, and, ifpursued, Banning shall pay for retaining the necessary consultant and permitting costs to process the this application and to obtair the 11 1739
License, which is estimated to be One Million Dollars ($ 1, 000,00. 0). Banning Heights shall support all efforts by Banning to obtain the License.

5. 2 SWRCB License. SCE holds a license granted by the SWRCB ( License # x550) for the jointly held diversion right that was granted pursuant to the Whitewater River Adjudication to SCE, Banning and Banning Heights. Banning Heights shallsupport all efforts by Banning to have License #550 transferred from SCE to Banning.

5. 3 CEQA and NEPA. In accordance with the requirements of CBQA and N' BPA, appropriate studies, analyses, reports and documents will be prepared by Banning, as the lead agency, and considered by the City Council, in the event that compliance with Envirorrmeital Law is required due to ( i) the initial project for repair as set forth in Exhibit D attached to the Transfer Agreement, ( ii) actions undertaken by Banning including without limitation consultation or support regarding the Facilities, or ( iii) repair, maintenance, or operation of the Facilities. Banning Heights shall support all efforts by Banning to obtain necessary regulatory and Environmental Law approvals. Banning shall implement any mitigation monitoring program developed as part ofEnvironmental law.

5. 4 Other Licensing and Permitting. To the extent Banning bears the obligation or deems it necessary to obtain regulatory approvals, including licensing or permitting, in addition to those set forth above, Banning shall apply in a timely manner for such other permits
and approvals as may be required from other governmental or quasi -governmental agencies having jurisdiction as may be required for the repair, Jnai. ntenance, or operation of the Facilities, and Banning Heights shall cooperate with Banning in its efforts to obtain such permits and approvals and Banning Heights shall siso use reasonable efforts, to the extent possible, in coordinating the implementation of the Transfer Agreement and this Agreement with other public agencies, if any, having jurisdiction over repair, maintenance, or operation of the Facilities.

ARTICLE 6. 0
OWNERSHIP: WATER HI( YHTS AND FACILITIES

6. 1 Water Rights. Nothing in the Transfer. Agreement or this Agreement shall affect the Whitewater River Adjudication, including the water rights granted to Banning and Raining Heights. Specifically, the Parties agree that nothing herein shall be deemed to be inconsistent with the Parties' Water Rights or the Agreements, and that nothing in this Agreement alters, changes, or modifies in any way the Water Rights ofBanning Heights or Banning as set forth in the A. greements and reaffirmed in the Whitewater River Adjudication, nor shall any event subsequent to this Agreement becoming effective alter, change, or modify the Water Rights, unless at some future time both Parties unequivocally do so explicitly in writing.

6. 2 Facilities. Notwithstanding Section 6. 1 set forth above, it is expressly understood title to all water facilities shall' transfer to Banning which shall thereafter have tb. e right to operate, manage, maintain, alter, pledge, transfer, hypothecate, such facilities, subject to performing its obligations as provided herein.
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6. 3 No Storage or Transferring Water Rights. Banning Heights shall not bank, store, or transfer, permanently or temporarily, any surplus water delivered to Banning Heights pursuant to this Agreement, nor shall Banning Heights transfer its Water Rights, except as provided for in this Agreement. Banning Heights wan -ants that it will not market to sell, lease, or otherwise transfer, temporarily or permanently, water from the Facilities, including water delivered from Banning, beyond its existing service area, or shareholders' area as depicted in the Map of Banning Heights Territory" (attached to this Agreement as Exhibit " B"), though additional development to the maximum provided herein may occur within said area.

Notwithstanding the foregoing, Banning may approve within its sole discretion. for Banning Heights to serve other parcels which Banning is not capable of serving so long as Banning Heights maintains at least a ratio of not less than one ( 1) water meter per acre, preceded by Banning providing notice to Banning Heights pursuant to Section 16. 9 (Notices) as set forth below for a hearing to be scheduled as an open public hearing item at a regularly -scheduled City
Council meeting within thirty (30) days nctice, subject to any legal requirements including but not limited to the Ralph M. Brown Act (Government Code §§ 54950 et seq.) and Proposition 218 Constitution Article X717 C and D), as applicable. k3anninig Heights may, within its sole discretion, decline to provide such service if to clo so would adversely impact its status as a mutual water company exempt from regulation by the California Public Utility Commission.

ARTICLE 7. 0

WATER SERVICE

7. 1 Delivery. Banning will deliver a Reasonable Amount of Water to Banning Heights at a Banning/ Banning Heights system Inter -Tie, with Banning Heights to pay for the costs of constructing the system Inter -Tie. Maximum development within Banning Heights' existing service area is projected to be not more than double the current units.

7. 2 Delivery Schedule. Banning will dclivcr a Reasonable Amount of Water based on the usual and customary industry practice for retail delivery of water.

7. 3 Reductions. Drought Conditions, Water rrergencies, acts of God, regulatory restrictions, and other conditions beyond Banning' scontrol, including those set forth below in Section 17. 8 (Force Majeurc), may adversely impact Banning' sability to dclivcr water to its customers. In such circumstances, Banning' sobligation ` o provide Banning Heights with a Reasonable Amount of Water may be suspended during the term of such conditions, and Banning' sobligation to provide Banning Heights a Reasonable Amount of Water at no cost to Banning Heights may be reduced by the same percentage as the percentage reduction in Banning' s ability to serve water to its own customers, consistent with Water Code §§ 350 through 359, which governs the standards for a public water supplier to declare and implement Water Emergencies and shortages.
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ARTICLE 8. 0

WATER RATES

8. 1 Rates. Banning Heights shall not be subsidized by other Banning customers for water delivered to Banning Heights. Banning will provide water to Banning Heights at customary rates, consistent with the rates reflected in Exhibit D attached to this Agreement and as set forth herein.

8. 2 Tiered Rates. Banning shall provide Tiered Rates for water delivered through the Facilities. First Tier rates will be at no charge to Banning Heights for a Reasonable Amount of Water for a Developed Acre so long as the water comes from the Facilities. If in any year:
1) Banning provides Banning Heights with more than a Reasonable Amount of Water; (ii) the circumstances provided above in Section. 7. 3 apply to a Reduced Water Threshold; or iii) circumstances as otherwise provided in this Agreement apply for water delivered to .Banning Heights other than through the Facilities, then Second Tier rates will be the Banning' scustomary rate( s) to Banning Heights. The calculation will be made allowing credit for each meter served by Banning Heights, in accordance with Exhibit D.

8. 3 Modification To Baiiuinu Water Rates. Banning reserves the right to modify its water rates for Second Tier rates as those rates are currently reflected in Exhibit D, as deemed. necessary by Banning and pursuant to applicable: procedural. and substantive legal requirements under State law and as may otherwise exist, namely through compliance with. the procedural and the substantive standards set forth in Proposition 218 codi5ed in Articles XILIC and XMIID of the California Constitution following statewide voter approval in 1996.

ARTICLE 9. 0

ANNUAL INSPECTION, REPORTS & RECORDS

9. 1 Annual Inspection.. Each Spring, Banning or its designee will perform an annual inspection of the Facilities, and prepare a
report that lists all of the recommended repairs and
maintenance needed on the Facilities. A representative ofBanning Heights may accompany the Banning representative on the inspection.

9. 2 Emergency Repairs. Notwithstanding the inclusion ofrecommended repairs for the coming year in the Annual Report, Banning may undertake any necessary emergency repairs for the preparation and efficientoperation of the Facilities, giving Banning Heights such notice as may be appropriate under the circumstances, and under any such circumstances, :Banning shall include any such work in its report set forth below in Section 9. 3.

9. 3 Annual Repair Reports. Banning - will prepare a written annual report consisting of a list of repairs and maintenance undertaken during the previous year, and the list of recoYnn, encled repairs and maintenance needed after the Annual Inspection, The Annual Report should also project necessary projects in the coming year, and within the next five (5) years. A copy of the report will be provided timely to Banning Heights upon written request from Banning Heights for the report, which shall be submitted to the City as set forth below in Section

16. 9 (Notices).
14 1742

9. 4 Water Delivery Records. Banning shall maintain for a period of. thirty- s;x (36) months complete and accurate records of the water delivered to Banning Heights.

9. 5 Water Metter Records. Banging Heights shall maintain for a period of thirty- six 36) months complete and accurate records for all of Banning Heights' water meters in order to ensure a Reasonable Amount of Water is delivered and the appropriate rate is charged. Upon reasonable notice to Banning Heights, Banning or its designee may examine Banning Heights' records pertaining to the water meters, which may include powerlelectrieity invoices or other information that may be used to determine water usage.

9. 6 SWRCB Reports. Banning will prepare and submit to the SWRCB, the :Reports of Licensee that are required once License #550 has been transferred from SCE to Banning.

ARTICLE 10. 0

OPERATION

10. inter -Tie. Barming Heights will benefit from an Inter -Tie given that the .Inter - Tie, as set forth above in Section 8.1, with Banning' swater system provides security for when the Facilities cannot deliver water, whether due to the initial Rehabilitation, future maintenance, or other circumstances including those set forth above in Section 9. 2 significantly limiting Banning' sability to deliver water through the Facilities to Banning Heights.

10. 2 General Performance Standards. Banning shall comply with performance standards throughout the Term of this Agreement, with those standards being consistent with accepted practice( s) for comparable facilities, sound managei ient, and operations practice, as well as any applicable standards provided for in the. Transfer Agreement, and applicable law pertaining to he Facilities.

10. 3 Environmental Performance Standards. Banning shall comply with applicable environmental laws and regulations in performance of Banning' sobligations set forth in this Aerccment.
a)
b)
0)
Air Quality. Earning shall operate the Facilities in compliance with all requirements, recommendations, and BMPs for minimization and mitigation of air quality impacts, including but not limited to, compliance with all California Air Resources Board (" CARB") and SCAQMD standares, rifles, and regulations.

Hazardous Materials Standards. Banning shall operate, maintain, and repair, when necessary, the Facilities in compliance with all applicable requirements, recommendations, and BMPs for minimi7atiorr and mitigation of hazards and hazardous materials impacts.

Biological Resources Standards. Banning shall operate, maintain, and repair, when necessary, the Facilities in such a manner as to minimize impacts to biological resources.
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Clltural Resources Standards. Banning shall operate, -maintain, and repair, when necessary, the Facilities in such a manner as to minimize impacts to cultural resources.

Water Quality Standards. Banning shall operate the Facilities in compliance with all requirements and BMPs for minimization of water quality impacts.

10. 4 Operations Obligations. Banni. n.gshall maintain the Facilities in good working order and repair.
a)
h)
Banning shall engage qualified and competent personnel, whether l3anning employees or an independent contractor retained by Banning, in numbers for safe and efficient Facilities operation.

Banning may utilize independent contractors at its sole cost to perform the work for which Banning retained the independent contractor. All independent contractors shall be licensed as required under Applicable Law, including, if required, acquisition and maintenance of a business license from Banning
c) Banning shall employ all equipment necessary for the effective operation of the Facilities substantially in accordance with reasonable care according to industry standards and any Applicable Laws.

10. 5 Limitation. Banning shall not use or permit the use of the Facilities for any purposes other than those contemplated by this Agreement, the Transfer Agreement, or the Flume Agreements.

ARTICLE 11. 0

MAINTENANCE

11. Maintenance. Banning, as owner of the Facilities, shall be responsible for all of the maintenance of the Facilities, and Banning shall have exclusive discretion for identifying potential repairs, replacements, and improvements of the Facilities, and determining which of are importance. All maintenance and repair should follow Best Management Practices, though the Parties recognize spccilic circumstances may arise that allow other measures to be taken.

11. 2 Best Management Practices. Within a reasonable twine after the Parties execute this Agreement, Banning shall form a committee formulated at its sole discretion for formulating Best Management Practices to be utilized for maintaining the Facilities, without any obligation of having a Banning Heights representative on the committee. Banning Heights shall be given the opportunity to comment on draft BMPs, but Banning is not obligated to incorporate any such comments.

1.3 Repairs. Banning shall diligently repair, replace, or restore the Facilities as Banning determines necessary to remedy damage to, or destruction of, any part of the Facilities that impedes delivery of the Water Rights, which may occur as determined necessary by Banning 16 1744
from time to time or as part of the Annual Inspection as set forth above in Section 9. 1. The completed work of compliance, maintenance, repair, replacement, or restoration shall be equal in. quality and use to the condition of the Facilities before the event giving rise to the work, except as expressly provided to the contrary herein.

11. 4 Performance Standards. Banning shall maintain the Facilities consistent with the performance standards provided above in this Article.

11. 5 Access. Authorized representatives ofBanning Heights, as approved by Banning, shall be provided access for inspection of the Facilities, but if and only Banning Heights tees to indemnify and hold harmless Banning from any loss or liability resulting, directly or indirectly, from such entry; as set forth below in Article 15.

ARTICLE 12. 0

TRANSFER

12. Transfers Require Approval. Banning shall not Transfer this Agreement, or any interest in the Facilities, directly or indirectly, except as provided for under State law, including Public Utilities Code §§ 10051 et seq., which identifies the processes and standards governing the sale or disposal of a public utility that is owned by an incorporated municipal corporation, such as Banning, which may include public notice pursuant to Government Code 6066 and a public hearing pursuant to Public Utilities Code § 10061( e) for evaluating proposals for acquisition ofthe public utility.

12. 2 Exceptions. The requirement for approval shall not apply to any of the following:
a) The granting of easements or dedications to any appropriate governmental entity or utility or permits to facilitate the operation, repair, or maintenance ofthe Facilities.
b) A sale or transfer ofthe Facilities to a subsidiary ofBanning. c) As permissible pursuant to Public Utilities Code §§ 10051 et seq., as described above in Section 12., or other applicable law, as the case may be.

12. 3 Assumption. of Obligations. No attempted transfer or any of Banning' s obligations hereunder shall be effective unless and until the successor party executes and delivers to Banning 'Heights an assumption agreement in a form approved by Banning Heights assuming such obligations. Following any such assignment or transfer of any of the rights and interests of Banning under this Agreement, the exercise, use, and enjoyment shall continue to be subject to the terms of this Agreement to the same extent as if the assignee or transferee were Banning.

12. 4 Release of Banning. Upon delivery to Banning Heights of the assumption agreement referenced. above in Section 12. 3, Banning is released and relieved from all obligations under this Agreement
17 1745

12. 5 No Assignment of Claims or Causes of Action. The Parties warrant that they have made no assignment, and will make no assignment, of any claim., cause of action, right of action or any right of any kind whatsoever, embodied in any of the provisions referred to herein.

12. 6 Successors and Assigns. This Agreement, and all the terms and provisions hereof, shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, legal representatives, successors and assigns.

ARTICLE 13. 0

AMENDMENTS

13. Initiation of Amendment. Either Patty a3,- propose an amendment to this Agreement.

13. 2 Procedure. Except as set forth in this Article, the procedure for proposing and adopting an amendment to this Agreement shall be the same as the procedure required for entering into this Agreement in the fast instance, consisting of communications between and approvals by authorized representatives ofBanning and Batwing Heights.

13. 3 Consent. Except as expressly provided in this Agreement, uo amendment to all or any provision of this AgF- eement shall be effective unless set forth in writing and signed by duly authorized representatives of each ofthe Parties hereto.

13. 4 Minor Modifications. Implementation of Facilities operations, repairs, or maintenance may require minor modifications of the details of the Parties under this Agreement.

The Parties desire to retain a certain degree of flexibility with respect to those items covered in general terms trader this Agreement. Therefore, non -substantive and procedural modifications of the Facilities operations, repairs, or maintenance shall not require modification of this Agreement.
a) Modification will be deemed non -substantive and/ or procedural if it does not result in a material change in water deliveries or payment of Water Rates.
b) Notwithstanding the foregoing, Banning will process any change to this Agreement consistent with State law and will hold public hearings therein if so required by State law.
133 Effect of Amendment to this Agreement. The Parties agree that except as expressly set forth in any such amendment, an amendment to this Agreement will not alter, affect, impair, modify, waive, or otherwise impact any other rights, duties, or obligations of either Party under this Agreement, nor will the Parties' Water Rights he affected. 18 1746
ARTICLE 14. 0
INS URAN C. , INDEMNLFICATION AND HOLD HARMLESS

14. Indemnification and Hold Harmless. Banning agrees to indemnify and hold harmless Banning Heights, its agents, ero. pioyees and officials against any and all claims, demands, damages, liabilities, costs, suits, or expenses arising out of any act or omission of any officer, agent or employee of Banning arising from performance or non- performance pursuant to this Agreement including those set forth above in Section 1.7 (Claims or Liabilities). Banning Heights agrees to indemnify and hold harmless Banning, its agents, employees and officials against any and all claims, demands, damages, liabilities, costs, suits or expenses arising out of any act or omission of any officer or employee of Banning Heights arising from performance or non- performance pursuant to this Agreement including those set forth above in Section 1.7 Claims or Liabilities). It is also understood and agreed that Banning shall indemnify, defend, and hold. Banning Heights harmless from any liability imposed for injury ( as defined by Government Code § 810.) occurring by reason of any acts or omissions on the part ofBanning under or in connection with any work, authority, or obligations delegated to Banning under this Agreement, and Banning Heights shall indemnify, defend, and hold Banning harmless from any liability imposed for injury (as defined by Governrneant Codc§ 810.) occurring by reason of any acts or onni. ssi. on. s on the part of Banning Heights under or in connection with any work, authority, or obligations delegated to Banning Heights under this Agreement.

14. 2 Survival. All indemnity obligations. set forth herein shall survive termination of this Agreement.

14. 3 Iu. suraucc.
a) Insurance Requirements. Each Party shall, at its sole cost and expense, secure and maintain the insurance provided for herein in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property, which may arise from or in connection with. the performance and/ or obligations of each Party, their respective agents, employees and. officials. Each Party shall maintain the types and amounts of insurance coverage, together with related specified deductibles, listed below or required by applicable law, whichever is greater.
b) Minimum Limits of Insurance.
1) General Liability: 51, 000,00 per occurrence, S2, 000,00 for bodily injury, personal injury and property damage. If Comprehensive General Liability Insurance or other form with a general aggregate limit is used, either the general. aggregate limit shall apply separately to the activities related to this Agreement or the general aggregate limit shall be twice the required occurrence limit. 2) Commercial Auto Liability: $ 1, 000,00 per accident for bodily injury, including accidental death, and property damage that may arise from operations pursuant to this agreement.
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3) Workers' Compensation and Employers' Liability Insurance:

Workers' Compensation. as required by the Labor Codc of the State of California and Employers Liability limits of at minimum $ 1, 000,00per accident. 4) Insurer' sRating: The insurance required by this Agreement shall be with insurers that are A. M.. Rest A- rated or better. 5) Adj ustment in Amount of Insurance. The Parties acknowledge that the Market for insurance is subject to unforeseeable events which can affect the amount of coverage neededand pricing therefor. Accordingly, in the event that either Party determines that the services under this Agreement create an increased or decreased risk of loss to that Party, that Party agrees that the minimum limits of the insurance policies required by this Article may be changed accordingly upon receipt of written notice from the other Party.

ENFORCEMENT
Alt: I.TCL E15. 0

15. Legal and Equitable Remedies. The Parties acknowledge that both Parties shall have all legal and equitable remedies as provided by law following the occurrence of a breach.

The Parties acknowledge and agree that any material violation o= this Agreement is likely to result in immediate and irreparable harm for which monetary damages may be inadequate, difficult or impossible to determine. Accordingly, the Parties consent to injunctive and other appropriate equitable relief including the remedy of specific performance, upon the institution of proceedings by any of the Parties to protect the rights of the Parties under this Agreement in the event of any violation or threatened violation of any provision.

15. 2 Other Rights of the Parties. In the event of any violation or threatened violation of any of the provisions ofthis Agreement, then in addition to, but not in lieu of, any of the rights or remedies the Parties may have to enforce the provisions hereof, the parties shall have th, eright to seek additional relief to which the Parties may be entitled at law or in equity.

15. 3 Cumulative Remedies. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies ofthe Parties are cumulative and the exercise by any Party of one or more of such rights or remedies shall not preclude the exercise by it whether seeking equitable or monetary relief, at the same or different tunes, of any other rights or remedies for the same default or any other default by any other Party.

15. 4 Waiver. Failure to insist on compliance with any term, covenant or condition contained in this Agreement shall not bc deemed a waiver of that teen, covenant or condition, nor shall any waiver or relinquishment of any right or power contained in this Agreement at any one time or more times be deersed a waiver or relinquishment of any right or power at any other time or times.

15. 5 Governing Law and Venue. This Agreement is made and entered into in the State of California, and shall in all respects bc interpreted, enforced and governed. under the laws of said State without giving effect to conflicts of laws principles. Any action at law or in equity arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or 20 1748
deterrnping the validity of any provision of this Agreement shall be fired and tried in the Superior Court of the County ofRiverside, State of California, or the United States District Court for the Central District of California. The Parties waive all provisions of law providing for the removal or change of venue to any other court.

15. 6 Right to Terminate. No breach of this Agreement shall entitle any Party to cancel, rescind or otherwise terminate this Agreement, or excuse the perfonnance of such Party' s obligations hereunder; except as provided herein. Notwithstanding the obligations and provisions of this Agreement, and as may otherwise exist between. the Parties, (i) should a license, permit, application, or other approval sought from a regulatory agency associated with
maintenance or operation of the Facilities not be approved or s, antcd, or ( ii) if approved or granted but is made subject to conditions that in either Party' s sole discretion makes it unlikely
that the water deliveries they have historically received will continue throngh the Facilities ( e.g., environmental mitigation could make future flows insufficient), or (iii) ifBanning determines that it is unable to fund its obligations hereunder, in its sole, absolute discretion, or (iv) for SL: VI, AR OR any other reason either Party wishes to terminate this Agreement then: the Parties shall meet and confer as set forth below in Section 15. 7 to seek agreement on modifications to this Agreement. Accordingly, before this Agreement may be terminated or action may be taken. to obtain judicial relief the Party seeking relief for a breach (" Nonbreaching Party") shall comply the meet andad confer, and notice and cure, provisions set forth in this Article.

15. 7 Meet and Confer. Following the effective date of this Agreement, if a Party develops a concern with a Party' s obligations in, or the provisions of, this Agreement, that Party shall make good -faith efforts to meet and discuss that concern with the other Party at a niutuallyagreeable time and .location., by giving notice to the other Party as set forth below in Sections

15. 8 and 16. 9 of the concern and proposed time and location. Should the Parties meet and confer, such discussions shall occur, whctl. crin multiple meetings as the case and circumstances may be, for a minimum of one month at the end of which either Party may terminate the meet and confer process and a Party, at its sole discretion, may pursue remedies as set forth in this Agreement including mediation, without the obligation to so mediate with the right to walk away, prior to pursuing other remedies including claims or litigation. Failure by either Party to exercise good faith efforts to meet and. to discuss such a concern may be offered for consideration in any subsequent administrative or legal proceeding relating to resolution of that concern.

15. 8 Notice of Breach and Opportunity to Cure. A Nonbreaching Party in its discretion may elect to declare a breach under this Agreement in accordance with the procedures hereinafter set forth for any failure or breach of the other Party (" Breaching Party") in its performance of a material duty or obligation of said Breaching Party under the terms of this Agreement. However, the Nonbreaching Party must provide written notice to the Breaching Party setting forth the nature of the breach or failure and the actions, if any, required by Breaching Party to cure such breach or failure ("Default Notice"). The Breaching Party shall be deemed in "default" under this Agreement, where: (i) said breach or failure can be cured, but the Breaching Party has failed to fully cure within thirty ( 30) days after the date of the Default Notice ( subject to the provisions below), or ( ii) a monetary default remains uncured for ten ( 10) days ( or such lesser time as may be specifically provided in this Agreement). ti
21 1749

15. 9 Non -Monetary Defaults; Longer Cure Period. The Breaching Party en a non - monetary breach shall not be deeaxucd in broach of this Agreement, and such breach shall be waived, if such non -monetary breach cannot reasonably be cured within the above -prescribed thirty (30) clay period, so long as the purported Breaching Party does each ofthe following:
a) Notifies the Nonbreaching Party in writing with a reasonable explanation as to the reasons the asserted breach is not curable within the thirty ( 30) day period;
b) Notifies the Nonbreaching Party of the Breathing Party' s proposed cause of action to cure the breach;
c) Commences action to cure the breach within the thirty (30) day period. d) Makes periodic reports to the Nonbreaching Party as to the progress of the program of cure; and
e) Diligently prosecutes such cure to completion.

15.0 Termination Upon Breach. ' Upon receiving a Default Notice, should the Breaching Party failto timely cure a breach, or fail to diligently pursue such cure as prescribed above, and should the Meet and Confer process have failed pursuant to Section 15. 7, the Nonbreaching Party may, in its discretion, provide the 'Breaching Party with a written notice of intent to terminate this Agreement and other Agreements (" Termination Notice"). The Termination Notice shall state that the Nonbreaching Party will elect to terminate the Agreement within thirty ( 30) days and state the reasons therefore ( including a copy of any specific charges ofbreach) and a description of the evidence upon which the decision to terminate is based.

15.1 Right of Reversion. IfBanning fails to perform any of its obligations set forth in this Agreement relating to operation, repair, or maintenance of the Facilities, or ifBanning fails to provide water to Banning Heights as set forth in this Agreement, then Banning Heights, without paying any compensation or incurring any liability for damages or losses of any kind, shall have the right to terminate all right, title; and interest held by Banning in the Facilities in the manner providedby law for the exercise and enforcement of this power of ternli: aatio: rz, with the exception of Banning' sWater Rights, which shall not be subject to reversion, forfeiture, or any other loss due to failure to perform an obligation pursuant to this Agreement. Upon proper completion of such termination or reversion, Banning shall provid. c and deliver to Banning Heights a deed reflecting the same. 11 reversion of the Facilities wcrc to occur, then the acquiring person or entity hears fall responsibility to deliver to Banning its Water Rights. Under no circumstance are Banning' sWater Rights su" aject to reversion.

15.2 Attorneys' Fees and Costs. If any Party to this Agreement is required to initiate or defend any action or proceeding in any way arising out of the Parties' agreement to, or performance of 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 attorney' sfees from the other. As used herein, the " prevailing party" shall be the party determined as such by a court of law pursuant to the definition in Code of Civil Procedure 1032( a)( 4), as it may be subsequently amended. Attorney' sfees shall include attorney' sfees 22 1750
on any appeal, and in addition a party entitled to attorney' sfees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.

ARTICLE 16. 0

MISCELLANEOUS

16. Assistance of Counsel. The Parties each specifically represent that they have consulted to their satisfaction with and received independent advice from their respective legal counsel prior to executing this Agreement concerning the terms and conditions of this Agreement, and each Party acknowledges and represents that its execution of this Agreement is free and voluntary.

16. 2 Severability. Should any portion, word, clause, phrase, sentence or paragraph of this Agreement be declared void or uncnforceahle, such portion shall be considered independent and severable from the remainder, the validity ofwhich shall remain unaffected.

16. 3 Ambiguity. The Parties acknowledge that this Agreement was jointly prepared by than, by and through their respective legal counsel, and any uncertainty or ambiguity existing herein shall not be interpreted against any of the Parties, but otherwise shall be interpreted according to the application of the rules on interpretation of. contracts.

16. 4 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes any and all other agreements, understandings, negotiations, or discussions, either oral or in writing, express or implied between the Parties to this Agreement.

The Parties to this Agreement each acknowledge that no representations, inducements; promises, agreements, or warranties, oral or otherwise, have been made by them, or anyone acting on their behalf, which are not embodied in this Agreement, that they have not executed this Agreement in reliance on any such representation, inducement, promise, agreement or warranty, and that no representation, inducement, promise, agreement or warranty not contained in this Agreement, including, but not limited to, any purported supplements, modifications, waivers, or terminations of this Agreement shall be valid or binding, unless executed in writing by all of the Parties to this Agreement.
163 Waivers. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Party' sright to insist and demand strict compliance by the other Party with the teens of this Agreement thereafter. Once Banning and Banning Heights have approved all of the Agreements, Banning Heights shall be deemed to have waived any claim that any condition of the development approvals is improper or that the approval constitutes a breach ofthe provisions ofthis Agreement. 23 1751
F

16. 6 Construction of This Agreement. The language of this Agreement shall be r>
construed as a whole and given its fair meaning with liberal construction and interpretation. The captions of the sections and subsections are for convenience only and shall not influence construction. This Agreement shall be governed by the laws of the State of California. This Agreement shall not be deemed to constitute the surrender or abrogation of any of Banning' s P'
governmental powers.

16. 7 Time of Essence. Time is of the essence in the performance of the provisions of t this Agreement as to which time is an. element, and the resolution of any dispute which niay arise concerning the obligations ofBanning and Banning Heights as set forth in this Agreement.

16. 8 Force Majeure. The time within which Banning or Banning Heights shall be required to perform any act under this A. greerent shall he extended by a period of time equal to the number of days during which performance of such act is delayed due to ati uncontrollable circumstance, including circumstances described in this 4g -cement and by reason of acts of God, earthquakes, droughts, floods, storms, explosion, fires, labor troubles, strikes, insurrection, riots, acts of the public enemy, or federal, state, or local law, order, rule, or regulation, that prevents, in whole or in part, Banning or Banning .Heights may perform their respective obligations under this Agreement. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the uncontrollable circuxxistancc, if written notice by the Party claiming such extension is sent to the other Party within thirty (30) days of knowledge of the commencement of the uncontrollable circumstance.

Any act or failure to act on the part of a Party shall not excuse performance by that Party.

16. 9 Notices. Any notice, demand, request, document, consent, approval, or communication that any Party to this Agreement desires or is required to give to the other Party, or any oL1i r
person or entity regarding this Agreement, shall he in waiting and either served personally or sent by prepaid, certified first- class mail, facsimile, or other means by which delivery to the Parties' designated representatives provided ( or their successors) below can be eoniirmed. Notice shall be d. eerned effectve upon the delivery of such notice to the party for whom it is intended at the address set forth below:

To Banning Heights:

With a copy to:

Banning Heights Mutual' Water Company
President, Board of Directors
7901 Bluff Street
Banning, California 92220
Telephone: (951) 849-420
Facsimile: (951) 849- 6068
Johvi G. McClendon, General Counsel
Lcibold McClendon & Mann, P. C.
23422 Mill Creek Drive. Suite 105
Laguna Ilills, California 92653
Telephone: ( 949) 457- 6317
Facsimile: (949) 457- 6305
1752
To Banning:

With a
copy to:

City ofBanning
Director of Utilities
99 East Ramsey
Banning, California 92220
Telephone: (951) 922- 3105
Facsimile: (951) 922- 3128
David T. Aleshire, City Attorney
Alesbire & Wynder, LLP
18881 Von Kaman Avenue, Suite 1700
Irvine, California 92612

16.0 Counterparts. This Agreement may be executed ir. multiple counterparts, each of which shall be considered an original but all of which shall constitute one agreement.

16.1 No Third Party Beneficiaries. The only Parties to this Agreement are Banning and Banning Heights. There are no third party beneficiaries, A I d this Agreement is not intended, and shall not be construed, to benefit or be enforceable by any other person whatsoever.

16.2 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent necessary to implement this Agreement.

Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if' reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement.

16.3 .Authority To Sign. The persons executing this Agreement on behalf of the Parties hereto represent and warrant that: (i) such Party is duly organized and existing; (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party and to bind. that Party, including its members, agents and assigns; ( iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement; and, (iv) the entering into this Agreement does not violate any provision of any other agreement to which said Party is bound.

SIGNATURE PAGE FOLLOWS]
25 1753
IN WITNESS WHEREOF, the undersigned have executed this Agreement, consisting of a total of 26 pages, on the dates set forth below.

BANNING HEIGHTS"
Date& , 2013 BANNING HEIGHTS MUTUAL WATER

COMPANY
By.

Its:

ATTEST:

By.

Its:

APPROVED AS TO FORM:

Dated: , 2013
BANNING"
Dated: , 2013

APPROVED, S
TO FORM:

Dated: tt Z/ , 2017
26 JOHN G. McCLENDON, FSQ.

LELBOLD McCLENDON & MANN, P. C.

By:

Its:

CITY OF BANNING
By:

Its:
2, daivit4itia/ 414_,
Mayor
ATTEST:

Its:
774) A1, 9
City Clark

JENKINS & HOGIN, LLP
By: / Z.

Its: I
Interim City Attorney
1754
Exhibit " A"
Map of the Facilities
27 1755
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28 1758
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1759
Exhibit "C"
trr Bement for Transfer of San Gorgonio Hvdroelectric Project No. 344 Water Conveyance Facilities and Exhibits ( Transfer Agreement)
29 1760
E) b;

AGREEMENT FOR TRANSFER OF SAN GORGONIO HYDROELECTRIC
PROJECT NO. 344 WATER CONVEYANCE FACILITIES
This Agreement for Transfer of San Gorgonio Hydroelectric Project No. 344 Water Conveyance Facilities (" Agreement") is effective as of February l., 2008 by and between Southern California Edison Company, a California corporation (" SCE"), San Gorgonio Pass Water Agency, a California special district (" San Gorgonio"), Banning eights Mutual Water Company, a California mutual benefit corporation (" Banning Heights"), and City of Banning, a California municipal corporation (" Banning"). San Gorgonio, Banning Heights and Banning shall be collectively referred to as " Participating Entities." All ate Agreement signatories may be referred to as the "Parties."

RECITALS
A. In the early 1900s, Consolidated Reservoir and Power Company Consolidated"), a SCE predecessor, initiated construction of a hydroelectric project, including water conveyance facilities, which eventually consisted of two diversion dams on the East and South Forks of the Whitewater River, concrete lined canals, two steel forebay tanks ( one of which has been removed), two penstocks, two powerhouses, and associated transmission lines (" Project").

B. On January 13, 1913, Consolidated entered into an agreement with the Banning Water Company, a Banning predecessor, to provide Banning Water Company with water from the Project after Consolidated used the water for generating power.

Banning planned to use the water for domestic and irrigation purposes (the 1913 Banning Agreement").

C. Thereafter, on December 30, 1913, Consolidated entered into a conveyance to Banning Heights granting Banning Heights certain water conveyance facilities and Consolidated' swater rights, subject to use of the water by Consolidated for its Project and to the terms of the Banning Water Company contract (the " 1913 Banning Heights Conveyance").

D. On July 1, 1933, San Gorgonio Electric Corporation, another SCE • predecessor, entered into an agreement with Banning Heights on allocating the costs of maintaining the Projject water conveyance facilities from the White Water River to the second power plant (the " 1933 Maintenance Agreement"). The 1913 Banning Agreement., the 1913 Banning Heights Conveyance and the 1933 Maintenance Agreement shall be referred to collectively as the "Flume Agreements." E. By order entered Apri123, 1928, in Book 1 of Orders of Determination,

Rights, Banning Heights, San Gorgonio Power Company, another SCE predecessor, and Banning -Water Company are jointly entitled to divert 13. 26 cr: bic feet per second ofthe natural flows ofthe Whitewater River into the Project water conveyance facilities subject to provisions of the Flume Agreements, among other things. This Agreement is not 1 1761
intended to change that. Order or otherwise alter the allocation among the Parties of the rights to the waters of the Whitewater River under the Flume Agreements.

F. SCE' s predecessor obtained a license from the Federal Energy Regulatory Commission (" FERC"), which agency was at that time named the Federal Power Commission, to operate the Project in 1923. The Project is designated on the FERC license as San Gorgonio Hydroelectric Project No. 344. SCE obtained a new license from FERC in 1983, which license expired on April 26, 2003. FERC has issued annual licenses to SCE for the Project until the ultimate disposition of the Project is determined.

G. SCE has not operated the Project to generate electricity since 1998 due to failure of the 900, 00 gallon steel forebay tank ( Tank No. 1) located above Powerhouse No. 1 and due to failure ofthe Project canal below Raywood Flat. SCE does not plan to restore Project power generation and no longer considers the Project to be a power generating facility.

H. With assistance from San Gorgonio as ' ead representative, Banning Heights and SCE entered into an " Agreement for the Constmction and Operation of an Emergency Water Diversion and Pipeline" effective June 20, 2002 pursuant to which SCE agreed to construct, operate and maintain temporary facilities, including a diversion structure and a pipeline from Burnt Canyon to the Powerhouse No. 1 tailrace, and to operate the Project water conveyance facilities at SCE' scost pursuant to SCE' s prior
contractual obligations.

I. On October 8, 2003, FERC issued an order affirming the validity of an annual license for the Project and requiring the filing of a surrender application.

J. The Project' scurrent water conveyance facilities include the water diversion structures on the East and South Forks of the Whitewater River and Black Wheel Creek in the San Bernardino National Forest in San Bernardino County, which are connected to a concrete flume and pipe system that proceeds in a southerly direction through the San Bernardino National Forest to an area called Raywood Fiat. The conveyance system ends shortly after Raywood Flat and the water is released in a westerly direction down the Burnt Canyon natural channel. Near the confluence of Burnt Canyon and Sawmill Creek, the water is diverted through a diversion structure and temporary pipeline that crosses Banning Canyon and eventually back into the Project concrete flume at the tail race of Powerhouse No. 1. The water proceeds through the flowline, the penstocks for Powerhouse No. 2, the Powerhouse No. 2 structure, and from there to the terminus at the Banning Heights storage tank. The pipeline from Powerhouse No. 2 to the Banning Heights storage tank is owned and operated by Banning Heights.

The Project facilities to be transferred from SCE to the Participating Entities include the water conveyance system described above and Powerhouse No. 2, which are together referred to as the " Facilities", and are more particularly described in Exhibit " A" and shown on Attachment " 1" to Exhibit "A." SCE will also transfer to the Participating Entities any easements for the Facilities to the extent that SCE owns the property or holds an existing easement that may be transferred to the Participating Entities, as set forth in 1762
Exhibit " R." SCE will also transfer a one -acre parcel of land in the Raywood Flat area that is not part of the Project and which land is more particularly described in Exhibit aca
K. Portions of the water conveyance system that traverse an unstable area on the mountainside above the southerly side of Burnt Canyon south of Raywood Flat, which portions will not constitute part of the Facilities, had been out of service rine to frequent landslides and slope failures that damaged the conveyance system. Water from the flowline is now released to Burnt Canyon due to the damage to the conveyance system. A diversion dam and temporary pipeline are in place to capture the water flowing out of the flume down into Burnt Canyon. The Participating Entities replaced the initial Burnt Canyon diversion dam, which was damaged in severe storms during 2005. As described in the Statement of Work, SCE will replace and relocate the existing temporary pipeline from the Burnt Canyon Diversion dam to the water conveyance flowline down gradient of the Powerhouse No. 1 site. The Burnt Canyon Diversion dam and pipeline from that dam constitute part ofthe Facilities.

L. San Gorgonio has been acting as lead representative for the Participating Entities with regard to the transfer and improvement of the Facilities since the year 2000.

M. SCE currently operates and maintains the Facilities and continues to assume responsibility for repairs. SCE wishes : o decommission the power generation components of the Project and divest the Facilities and related real properties. SCE needs approval from FERC and possibly other responsible agencies for decommissioning and divestiture.

N. Participating Entities seek title io the Facilities once they are restored or otherwise repaired by SCE to an acceptable condition. Participating Entities will need approval from the United States Forest Service and other responsible agencies to operate and maintain the Facilities for continued water diversion and delivery to the extent the Facilities are on Forest Service land and otherwise under the jurisdiction of other responsible agencies. Participating Entities will take title to the Facilities pursuant to this Agreement in the name of a public entity consisting of one or any combination of the three Participating Entities, which title shall be determined prior to closing as set forth in this Agreement.

O. Participating Entities desire to obtain title to the Facilities and SCE desires to convey title to the Facilities on the terms and conditions in this Agreement.

NOW THEREFORE, in consideration ofthe promises set forth in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree as follows:

1. Conveyance of Facilities and Real Property.
a. Facilities Condition Upon Conveyance. SCE shall convey the Facilities in the condition described in Section 3 below. 3 1763
b. Facilities and Real Property to be Conveyed. Subject to all of the conditions set forth in this Agreement, SCE shall convey to Participating Entities and Participating Entities shall accept: (i) ownership of the Facilities as evidenced by a Bill of Sale for the Facilities, which shall be in the form attached as Exhibit " A"; (ii) easements held by SCE for the Facilities if SCE has the authority to transfer those easements, free and clear of all recorded and unrecorded ( but known to and under the control of SCE prior to the Close of Escrow) liens, options, leases; and taxes, except for the 1914 Trust Indenture encumbrance, for which SCE will have one year from the date of transfer to remove the Trust Indenture lien, and in the form set forth in the "Assignment" attached as Exhibit "B"; (iii) ownership of the one -acre parcel in the form of the Grant Deed attached hereto as Exhibit " C."
c. Payment of Purchase Price for One Acre Parcel. Participating Entities shall deposit into Escrow within five days before Close. of Escrow the amount of 12, 000. as the purchase price for the one acre parcel. The parties agree that the 12, 000. purchase price is the fair market value of the one acre parcel. The appraisal prepared for the parcel is attached to this Agreement as Exhibit " E".

2. Escrow. Within 10 days after the date of this Agreement, SCE and Participating Entities shall establish escrow with Fidelity National Title (" Escrow Holder"). This Agreement constitutes the joint escrow instructions of SCE and Participating Entities, and the Escrow Holder to whom these instructions are delivered is hereby empowered to act under this Agreement. The Parties agree to do all reasonable acts necessary to close this escrow in the shortest feasible time. As soon as feasible after the opening of the escrow, SCE will deposit the executed Bill of Sale in the form of the attached Exhibit "A", the executed Assignment in the form of the attached Exhibit " B" with the Escrow Holder on the Participating Entities' behalf, and the Grant Deed in the form of the attached Exhibit " C". SCE and Participating Entities agree to deposit with the Escrow Holder any additional instruments as may be necessary to complete this transaction and close escrow. Escrow Holder shall immediately order a Preliminary Report together with copies of all exceptions shown on it from Fidelity National Title for any real property to be transferred from SCE to the Participating Entities. Escrow Holder shall obtain evidence of title in the form of an ALTA 2006 Owner' sPolicy of title insurance, subject only to those exceptions approved by Participating Entities (" Title Policy"). Escrow shall provide for closing 30 days after the completion of all the contingencies to the close of Escrow, as set forth in Section 6 of this Agreement. Close ofEscrow shall mean the date the Bill of Sale, Assignment and Grant Deed are recorded in the office of the Riverside County Recorder.

3. Condition of Facilities.
a. SCE Restoration and Warranty ofFacilities. SCE shall restore and repair the Facilities as set forth in the Statement of Work attached as Exhibit " D". SCE warrants that at the time of Facilities transfer to Participating Entities, the Facilities have been restored/ repaired and are operating according to the Statement of Work, including any specifications developed by the Joint Design Review Team, except to the extent that 4 1764
the Facilities do not meet the specifications due to Participating Entities' failure to meet their maintenance obligations after SCE restoration/ repair.. The Parties expect that the work will be performed between June and October due to inaccessibility to the Facilities between November and May. The Parties anticipate that SCE will complete the work during one summer construction season, assuming that all regulatory approvals are received by June 1S` of the year of construction. If approvals are not received until after June 1' of any year, construction is not expected to begin until the next construction season. The Participating Agencies acknowledge and accept that water diversion and delivery may not be able to occur during construction. SCE will request proposals from contractors to perform the work such that water deliveries are not completely interrupted for more than one construction season. SCE shall provide for contractor penalties if construction goes beyond the contracted for construction period and shall pass through to the Participating Entities any delay -related penalties payable by the contractor to SCE.

The SCE contractor penalty provisions shall be conform to industry standard as documented by the Participating Entities. SCE shall provide to the Participating Entities the documentation of the cost of performing the Statement of Work activities that occurred on Facilities beginning with the Project diversion structures to the Raywood Flat area.
b. Participating Entities Qption to Restore Facilities. The Participating Entities may choose to take full responsibility for the repairs/ replacements described in Conditions Nos. 1, 4, 5, and 6 in Exhibit " D," Statement of Work, by giving written notice thereof to SCE within 45 days after SCE receives at least three qualified bids for completing those conditions in the Statement of Work. If so, SCE will pay the Participating Entities ninety percent of the bid price plus reasonable construction management costs for those items. The bid price will be the average cost estimate in response to at least three responsible bids for the work by qualified contractors. 1he bid descriptions and construction management cost estimate will be developed under the JURT design review process. The hid process is anticipated to take place in 2008. SCE will make payment. in full directly to the Participating Entities, o; rtsidc of escrow, within forty-ive (45) days following approval by the California Public Utilities Commission CPUC"). If CPUC approval is not obtained within one year of receipt of the bids, or if SCE decides not to seek specific CPUC approval, then the Participating Entities may at their discretion either ( 1) revoke their exercise of their option pursuant to this Section 3(b) by written notice to SCE, or (2) request SCE to pay, and SCE shall pay, for the hid price and construction management costs by making monthly payments for reasonable costs incurred, all payments to be complete within six months after completion of - construction. In the event that SCE shakes monthly payments rather than payment in full, Participating Entities shall not be required to take full responsibility for particular repairs or replacements until payment for each particular repair or replacement is received by Participating Entities from SCE.
c. SCE Option to Pay Participating Entities. Should the Forest Service, or any other agency with jurisdiction, not provide the Participating Entities with a necessary approval for the Facilities operation, repair, or maintenance, or if the Participating Entities do not obtain Fores: Service, or any other agency, necessary 5 1765
regulatory approval within 39 months of this Agreement' sexecution date or 18 months after SCE receives FERC approval for the surrender of the Project license, whichever is later, then SCE shall have the option of providing the Participating Entities ninety percent of the amount of money required to complete the work in the Statement of Work as estimated by a new round of bids in accordance with the bid process set forth in Section 3(b) plus reasonable construction management costs for that work; prior responsible bids may be used if the contractors' bids are still valid. In turn, upon receipt of all of the monies, the Participating Entities shall, except as otherwise stated in Section 3(e), ( i) be fully responsible for conducting all operation, repair, maintenance, and decommissioning of the Facilities, and (ii) indemnify SCE for any costs, losses, expenses, or damages incurred due to the operation, repair, maintenance, or decommissioning of the Facilities.

The Participating Entities obligations under this section do not include any responsibility or indemnity regarding the Project works that are not considered " Facilities" and are not to be transferred to the Participating Entities.
d. Maintenance of Facilities. Except as the Participating Entities take responsibility for repairs/ replacements pursuant to Section 3(b). or as SCE makes full payment of monies pursuant to Section 3(c), until the completion of each repair item listed on the Statement ofWork, SCE shall maintain the Facilities in good working condition. If no work is required under the Statement of Work for a part of the Facilities to be transferred, then the Participating Entities shall have maintenance responsibilities for those Facilities from the effective date of this Agreement. Participating Entities shall take maintenance responsibility for each item listed on the Statement of Work after SCE satisfactorily performs the required work associated with that item according to the Scope ofWork and JDRT specifications or pays for that item pursuant to Section 3(b) or Section 3(c)_
e. SCE Contribution Upon Catastrophic Event. Not -withstanding anything to the contrary in Sections 3(b), 3(c) or 3(d), if a storm or other cause of damage under Civil Code Section 1511( 2) occurs that causes damage to.he Facilities requiring funding in excess of the amount provided by SCE to complete the Statement of Work prior to the Close of Escrow, then, upon receipt of documentation of the actual cost of the repair, SCE will reimburse the Participating Entities fur (1) 90 percent of the reasonable incremental price for the repair resulting from. that specific event occurring after SCE payment under Section 3(b) but before Close of Escrow or ( 2) 50 percent of the reasonable incremental price for the repair resulting from that specific event if the event occurs within two years after SCE payment under Section 3(c) butbefore Close of Escrow. The Participating Entities may provide such documentation to SCE on a monthly basis, but no later than one year after such expenses are incurred. If the Participating Entities are eligible for Federal Emergency Management Agency (FEMA) and/ or Office of Emergency Services ( OES) funding, they must apply for and diligently pursue such funds. If FEMA or OES funds are received, SCE will pay the difference between those funds and the actual cost of repair, up to ( 1) 40 percent of the incremental cost of repairs for that specific event after SCE payment for the cost of repairs under Section 3(h) or (2) 10 percent of the incremental cost of repairs for that specific event after SCE payment for the cost of repairs under Section 3(c). 6 1766
r:

Environmental Condition ofPowerhouses. SCE shall have the sole responsibility for the identification, investigation, monitoring and remediation and cleanup of any substance, chemical or waste due to or arising from SCE operations or use of the Facilities or related property that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation (collectively " Hazardous Substance") present on or affecting the real property transferred in this agreement prior to the date of the transfer. SCE shall indemnify, defend and hold harmless Participating Entities from any and all costs, damages, claims of liability and losses (collectively Claims") relating to the mercury switch for Tank No. 1. SCE' sobligations pursuant to this Section 3( t) shall survive the Close of Escrow.

4. Regulatory Approvals.
a. License Surrender and Transfer. SCE shall proceed with due diligence in seeking approval from FERC for surrender of the license for the San Gorgonio Hydroelectric Project No. 344. SCE shall proceed with due diligence to obtain all other approvals related to the license surrender from federal, state, and local agencies with jurisdiction over the Project or the Facilities. However, ifthe Participating Entities file with FERC an application for a new license, then SCE shall take appropriate steps to facilitate the transfer of the Project to the Participating Entities. For example, SCE may need to withdraw its surrender application and file an application to transfer the existing license to the Participating Entities.
b. Use Permit. Long -Term Easement, or Power License.

Participating Entities shall proceed with due diligence in seeking approval from the FERC, Forest Service, and any other appropriate agency for the right to locate, operate and maintain the Facilities in the repaired/ restoredcondition set forth in the Statement of Work for water supply and, at their option, possibly also for power generation.

Participating Entities shall proceed with due diligence to obtain all other approvals related to the operation of the Facilities from federal, state, and local agencies with jurisdiction over the Facilities. •

5. Escrow Holder Duties. The duties of the Escrow Holder in connection with the cscrow• shall be as follows:
a. To retain and safely keep any funds, documents and instructions deposited with it;
b. Following Close of Escrow, to deliver to the Parties entitled thereto any funds, documents, and instruments to be delivered through Escrow; c. To cause the recordation in the Offices of the County Recorders of Riverside and San Bernardino County, California, of all documents to be recorded pursuant to this Agreement;
7 1767
d. To comply with the terms of this Agreement and any additional instructions jointly executed by SCE and the Participating Entities; c. Pay any amount necessary to place title in the condition necessary to satisfy Section 2 of this Agreement and charge SCE upon SCE' s written approval; f. Pay any escrow fees, charges and costs payable and charge the Participating Entities;
g. Disburse any funds and deliver the Bill of Sale, Assignment, Grant Deed and Title Policy when condition of this escrow have been fulfilled by SCE and the Participating Entities.
h. Calculate the amount of funds to be disbursed taking into consideration any prepayment offunds or expenditures made by SCE pursuant to other provisions of this Agreement.

6. Conditions to Close of Escrow. Close of Escrow is subject to the following conditions precedent:
a. SCE' s
satisfactory performance of the Statement of Work set forth in Exhibit "D," Participating Entities' written waiver thereof and SCE payment therefore pursuant to Section 3(b) or SCE payment therefore pursuant to Section 3(c). SCE will expeditiously complete the Statement of Work once all regulatory approvals are received, vicluding any agency approvals of construction plans. At its sole discretion, SCE may elect to implement individual elements of the Statement of Work prior t receiving all approvals for the license surrender and/ orlicense transfer and prior to the Participating Entities receipt of the Forest Service easement, when and if any necessary regulatory approvals are received for individual work elements.
b. Participating Entities' acceptance in writing, or written waiver thereof, of the condition of the Facilities as meeting the criteria set forth in the Statement of Work, subject to the reasonableness of any disapproval. Participating Entities shall have the right, at their expense, to conduct inspections, investigations, tests, surveys, and other studies of the Facilities (" Inspections"). SCE shall make the Facilities available for all Inspections during business hours after 4S hours notice to SCE. Participating Entities shall complete these Inspections and notify SCE within 14 days after SCE' s completion
of the improvements in the Statement of Work of any items reasonably disapproved.

Participating Entities' disapproval shall be considered reasonable if the work or facility disapproved is not in substantial compliance with the specifications set forth in the Statement of Work. Should Participating Entities give written notice of disapproval, SCE shall make repairs to, or correct, any items reasonably disapproved by Participating Entities.
t
F
L
8 1768
c. SCE' s
obtaining FERC approval of the surrender of SCE' s FERC license or the transfer of SCE' sFERC license to Participating Entities for the Project, and CP1IC approval of the transfer, ifrequired.
d. Participating Entities' obtaining regulatory approvals from the U. S.

Forest Service for a
long- term easement or equivalent use permit for operating the Facilities for water supply purposes, or from the FERC for operating the Facilities for continued power generation and water supply.
e. Compliance with the California Environmental Quality Act associated with the execution of this Agreement.
f. SCE' sperformance of all its obligations under this Agreement.

B. Escrow Holder being prepared to issue the -Title Policy subject only to exceptions approved by Participating Entities.
b. Upon receipt of all regulatory •approvals, per Section 4l( a) above.

Banning shall deposit ten percent of the documented SCE cost to perform the activities in the Statement of work on the flowline and diversion structures from the Whitewater River to Raywood Fiat, unless such amount is already deducted from SCE payments pursuant to Sections 3(b) or 3(c) above. Escrow Holder shall provide these funds to SCE upon close of Escrow.

1. Participating Entities' deposit into Escrow of the purchase price for the one acre parcel.
j. Determination among the Participating Entities as to the entity or entities that will take title of the real and personal property to be transferred herein.

7. General Provisions.
a. Entire Agreement. This Agreement, together with the Exhibits attached hereto, constitutes the entire agreement between the Parties with respect to the transfer of the Facilities and the conditions precedent. All rights and obligations of SCE under the -Flume Contracts referenced in the Agreement and any other agreements among SCE, its predecessors, and the Participating Entities and their predecessors with regard to the Facilities will be deemed terminated upon the Close of Escrow. However, the Flume Contracts shall remain in full force and effect as between Banning and Banning Heights. including any allocation among them of the rights to the waters ofthe Whitewater River. b. Governing Law and Venue. This Agreement, including (without limitation) its existence, validity, construction, interpretation, and operation, and the rights of each of the Parties, shall be determined in accordance with the laws of the State of California. Any state action commenced relating to this Agreement shall be filed in the Riverside County Superior Court.
9 1769
c. Construction. Each of the Parties has contributed to the drafting of this Agreement, and no provision thereof shall be construed against any Party on account of being the draftsperson of that provision. This Agreement shall be construed without regard to any presumption or other rule requiring construction against the party causing this Agreement to be drafted. Nothing herein is intended to create any third party beneficiaries to this Agreement, and no person other than the Parties and their permitted successors and assigns shall be authorized to enforce the provisions of this Agreement. d. Notices. Unless otherwise provided herein, all communications and notices given under this Agreement shall be in Writing and shall he given by certified mail, facsimile, or other means by which delivery to the Parties' designated representatives provided ( or their successors) below can be confirmed. Notice shall be deemed effective upon the delivery of such notice to the party for whom it is intended at the address set forth below:

SCE:

San Gorgonio:

Banning Heights:

Banning:

Southern Califor: tiaEdison Co.

Manager Eastern Hydro
300 North Lone Hill Avenue
San Dimas, CA 91773
Telephone: (909) 394- 8720
Facsimile: ( 909) 394- 8967
San Gorgonio Pass Water Agency
General Manager
1210 Beaumont Avenue
Beaumont, CA 92223
Telephone ( 951) 845- 2577
Facsimile: ( 951) 845- 0181
Banning Heights Mutual Water Co.

President: Board of Directors
790I Bluff Street
Banning, CA 92220
Telephone: (951) 849-420
Facsimile: ( 951) 849- 6068
City of Banning
Director of Utilities
99 East Ramsey
Banning, CA 92220
Telephone: (951) 922- 3105
Facsimile: (951) 922- 3128
e. A. uthority. Each of the undersigned signatories represents and warrants that he/ she is authorized to execute this Agreement on behalf of the Party to the 10 1770
Agreement that he/ she represents and that this Agreement, when executed by those Parties; shall become a valid and binding obligation, enforceable in accordance with its • terms.
f. Alternative Dispute Resolution. Any dispute as to the construction, interpretation or implementation of this Agreement or any matter in any way relating to this Agreement shall be heard as a
reference, pursuant to California Code
of Civil Procedure Section 638 et seq., with venue set in the Riverside County Superior Court. If the parties cannot agree on a referee, then either party may request such court to appoint a referee. The parties initially will divide the cost of the references, including the referee' sfee, equally, but the prevailing party in the reference shall be entitled to recover its half of the cost of the reference as an item of costs. g. Attorney' s Fees. If any legal action,. including a reference under Section 7( f), is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney' sfees from the other party. These fees, which may be set by the court in the same action or in a separate
action brought for that purpose, are in addition to any other relief to which the prevailing party may be entitled.
h. Modification. Notwithstanding the above conditions, this agreement, or portions of this agreement, may be modified or terminated at any time upon written consent of all parties to the agreement.
i. Implementing Agreement. The Participating Entities agree that Banning and Banning Ileights will meet and confer in good faith to negotiate The terms of an agreement governing the implementation of this Agreement (" Implementing Agreement"). The Implementing Agreement shall, at a minimum, provide for how title to the :Facilities and one acre parcel shall be taken and how collective decisions of the Participating Entities shall be made. Banning and Banning Heights shall make a good faith effort to enter into an Implementing Agreement prior to. the Close of Escrow. In the absence of an Implementing Agreement, decisions of the Participating Entities shall be made unanimously.
iN WITNESS WHEREOF. the Parties hereto have executed this Agreement as of the dates set forth below.
3v g SOUTHERN CALIFORNIA EDISON COMPANY
By:
t;ss Krieger, V. e President
11 1771
Banning Heights Mutual Water Company Signature Page for Agreement for Transfer of San Gorgonio Hydroelectric Project No. 344 Water Conveyance Facilities 2010
2010

BANNING HEIGHTS MUTUAL WATER COMPANY
and Simmons,
President, Board of Directors
BANNING HEIGHTS murtu R COMPANY
By:
onaid Ayers
Secretary, Board ofDirectors
1772
2008
2008'

SAN GORGONIO PASS WATER AGENCY
By:

President, Board of Directors

BANNING HEIGHT' S MUTUAL WATER COMPANY
By:

Charles Perkins,
President, Board of Directors
2008 • CITY OF
By:

TO
nda Salas
Mayor
12 F
I
1773

9. Powerhouse No. 1 structure and its associated fence, structure, garage, storage bunker, and perimeter fencing

10. Penstack No. 2 between Tank No. 2 and Powerhouse No. 2

11. Powerhouse No. 2 structure, Powerhouse No. 2 electrical generation equipment, and .fence immediately surrounding the powerhouse

12. l3urnt Canyon Diversion

13. Existing Burnt Canyon pipeline and a proposed Burnt Canyon Diversion pipeline from the diversion to Powerhouse No. 1 tailrace
SCE agrees to have and to hold the said facilities unto the Participating Entities, and their successors and assigns forever.

IN WITNESS WHEREOF, SCE has caused this Bill of Sale to be executed by its duly authorized officer this 3° day of .`. 1-''''- e , ° #8.

Russ W. Krieger
Vice President, Power Production
Southern California Edison Company
The Participating Entities agree to accept title and ownership to the above listed facilities.

SAN GORGONIO PASS WATER AGENCY
By:,/.

John er
President, Board of Directors
2 1774
By:

Signature Page for Bawling Heights MAtual Water Company for Exhibit A B: 11 of Sale

BANNING HEIGHTS MUTUAL WATER COMPANY
ichard Simmons
President, Board of Directors

BANNING IIBIGHTS M ' ATER COMPANY
By:.
ona • Ayers
Secretary, Board ofDirectors Wi"
1775
BANNING HEIGHTS MTJTUAL WATER CO.

Bv:

Charles Perkins,
President, Board of Directors

CITY OF BANNING
Br{ da Salas
Mayor
3 1776
ATTACHMENT 1 TO EXHIBIT A

MAP OF TRANSFERRED FACILITIES
1777
FXI 713IT " B"

ASSIGNMENT
1778
EXHIBIT "C"

GRANT DEED
1 1779
i.'
EXHIBIT " D"

STATEMENT OF WORK

1. SCE will repair or replace the flowline from the East Fork Dam to the turnout at Raywood Fiat. The repair will allow for the continued diversion of water at Black Wheel Creek.

2. SCE will repair and restore the diversion dams and sand boxes as follows:
a. Where it would not harm the integrity of the dam, remove vegetation from darns ( e.g. alders growing out of the face of the East Fork Diversion Dam); b. Repair the undercut portion of the toe of the East Fork Diversion Dam that is exposing the dam structure to ensure dam stability;
c. Repair the foundation of the sand box at the East Fork Diversion Darn damaged by erosion, and to the extent practicable repair the leaks; and d. Replace/ repairthe sand box at the South Fork Dam.
e. Replace/ repairthe pipe leading from South Fork Dam to the sandbox.

3. SCE will install break away gates at the South Fork Dam. The gates will be designed to give way when large flows of water are present at South Fork Dam.

4. SCE will improve the Burnt Canyon pipeline by removing the temporary pipeline and installing a permanent underground pipe. The pipe will be designed with the capacity to convey approximately 11 cubic feet per second ( cfs), or the capacity to carry the volume of flows authorized to be diverted from Project diversions by the FERC and/ or the San Bernardino National Forest, whichever is less, at velocities of not greater than ten cubic feet per second.

5. If determined necessary, SCE will install a well or other recovery mechanism to recover project water documented to be lost to surface diversion or groundwater extraction by the Participating Entities due to seepage in Burnt Canyon. The need for the well or other recovery device will be reasonably determined by the Joint Design Review Team ( JDRT), described below.

6. SCE will repair or replace damaged sections of the canal between Powerhouse No. 1 and Tank 2. This will include approximately 416 feet of outer wall, 469 feet of inner wall, and 21 feet of canal floor. In addition, SCE will replace the unusable or missing covering boards with redwood, cedar, or other suitable wood, as appropriate and available.

7. SCE will construct an electric distribution line to the site of the recovery mechanism, to be located near San Gorgonio No. 1 Powerhouse, at no cost to San Gorgonio, Banning Heights and Banning.
1 1780
8, Within 30 days after the effective date of the Agreement, the Participating Entities and SCE will form a Joint Design Review Team ( JDRT) to carry out a Joint Design Review Process ' o review the engineering design of the Work Statement elements described above. The design review will be based on, and incorporate, the following principles:
a. The Participating Entities will have design approval of the facilities to be constructed by SCE for purposes of determining that, in their reasonable discretion, such facilities will comply with sections 1 through 6, above and will not adversely affect the safety, operation, maintenance or any applicable regulatory requirements of the San Gorgonio project as a viable water supply projec:.
b. The JDRT will be composed of one representative from the Participating Entities and one representative from SCE. Once the JDRT has reached consensus on a design, the proposal will be shared with all parties. Both representatives will utilize licensed engineers for design review. c. The JDRT will meet as frequently as necessary for the duration of the planning, resign and construction of the elements described in Sections 1 through 6, above.

9. The Joint Design Review Process will include the following. a. Schedule. The JDRT shall develop project planning and design schedules of key design -phase milestones, deliverables and meeting dates to support construction schedules. A draft summary schedule will be prepared by the JDRT and distributed to all parties for review. Comments from the parties will be incorporated into a final schedule.

Review of Design Basis. The JDRT wi' 1 review and evaluate the basis for the design for each of the Statement of Work' s elements identified in the above Sections 1 through 6. The Basis of Design will document the relevant design criteria, present the conceptual design, and summarize the plan for implementation.

This review will consist of an evaluation of the design basis upon operational, safety, and long- term maintenance performance considerations. The buildability, bidability, efficiency of design, and choice of components suitable for project purpose and addressing the potential environment impacts of project operation will also be considered. Except as otherwise provided herein or as subsequently agreed to by the parties, SCE shall not be required to repair the Facilities based on a design more advanced than the Project' soriginal infrastructure and equipment.
1781
b. Review of Preliminary Design. The JDRT will -conduct a review of the preliminary design. The preliminary design submittal will consist of an updated Basis of Design, preliminary design drawings, and supporting documentation. The prelimhiary design shall provide sufficient detail for a
thorough evaluation of the suitability of the design to meet the established Statement ofWork elements and to identify any potential constraints to implementation. Further detail or documentation may be requested by the JDRT to facilitate the completion of its preliminary design review.
c. Review of Final Design. JDRT review of final design will consist of review of the construction plans and specifications for compliance with the Statement of Work elements. Subsequent to the Final Design Review, any changes to the design other than those recommended by the JDRT' s shall be submitted for review by the JDRT.

10. Construction Review. hi addition to the technical review during design development, the JDRT will assist with the development of a plan for monitoring of the execution of the approved design package during construction. The plan will also address final inspection, testing and commissioning. .

11. Guidelines. In working cooperatively to develop a bid package and a final constructed product of high quality, the Joint Design Review Team will consider the following design guidelines to the extent feasible and consistent with the other sections of this Statement ofWork. •
a. Soil shall be stable before any new reinforced concrete walls and/ or floors are installed or placed on the soil. Saturated soil will be evaluated and addressed as needed.
b. To the extent needed, walls and floor of the flume shall be reinforced with gunite or other suitable material, including concrete or concrete block.

The liner material shall provide a relatively smooth and watertight surface along the entire length of the improved flowline. The flowline shall be designed for a hydraulic capacity that is the lesser of (1) the amount allowed by the US Forest Service Special Use Permit, or (ii) approximately 5 cfs between the East Fork and South Fork diversions and approximately 11 cfs between the South Fork diversion and Raywood Flat.
c. Where pipe sections are used for improvements, the transition from rectangular fiowline to the round pipeline shall be smooth and watertight as practical.
d. Material used for lining of the flume shall be suitable for freezing temperatures for extended periods of time during a winter season. e. Any pipe material used shall be non -corrosive, such as polyethylene, polyvinyl chloride (PVC), or concrete.
f. Sufficient pieces of wood planking shall he provided to cover the fiowline where it is an open channel and where wood planking is replaced, full cut 3 F5:
1782
planking similar to the existing planks shall be used. The wood shall be redwood, cedar, or other material that resists decay and is suitable for outdoor service.

When reconstruction of the flowline is required, the finished f;owline shall have a constant grade and be free of low and/ orhigh spots to the extent practical.
1783

EXHIBIT F

APPRAISAL FOR RAYWOOD FLAT PARCEL
1784
4 a.

FJ' r:5 .•
r . ..
oriel ..•.
ri .
e.

BI- IMWC
Orator
Tank
1- ERC NonProject
Facility)
sr•
1 ofSate: 1 • ••.. ; `
San.

Gorgwri
n
clecrrl
liyd
ro
c
Pr* c
Transferral ! •
o
an ! ._
kles + `.

Diversion , '
South
F
ork
r' . R .
rmt
Canyon
Diversion
FERC Non- L(
ProjectFadity)
LaPowerhouse N .
2 Silo
ForebayTank No.
2 f
ei
and
Ro ad
Grate
Black
Wheel
Creek
Diversion'
x •
rp
powerhouse
No . 1o .
1 Site • • :
i•
r+`: joal ssAv A
ROW
PA ' Wile
I
end
No. 2
siod: rro•
No.
a
P90MAt3
Bard
error,
rorebl b'
Pipe (
Edol7n9?
F
Buml
CArysla
DeeN1
Pipe (
Finn
oeill
RZF
r ..
1•
East
Pork
Reyw
ood'
CD
Kt.,... ,.
ri7?:..,•
1785

RECORDING REQUESTED BY

SOUTHERN CALIFORNIA EDISON
COM? ATW

WHEN RECORDED MAIL TO

SOUTHERN CALIFORNIA EDISON

COMPANY
14799 CHESTNUT STREET
WESTMINSTER, CA. 92683
ATTN; TITLE & REAL ESTATE SERVICES

ASSIGNMENT
Location: Unincorporated
A. P. N. 0580-11- 07
0580- 441- 0
DOCUMENTARY TRANSFER TAX $

COMPUTED ON RILL VALUE
OR COMPUTED ON FULL4 LIE LESS IENS AND

ENCUMBRANCES RE GAT TIME LE

EDISON CO
SPACE ABQh.` VE THIS
7 ' 74-
S}
FpROPERr CONVEYED
SIGNATURE OF DECLARANT OR AGENT 1[ NOT
FOR A VALUABLE CONSIDERATION, receipt of whit, 4zs hereby acknowledged, SOUTHERN CALIFORNIA EDISON COMPANY, a corporation, successor in f kest tote Consolidated Reservoir & K hk
Power Company, does hereby assign, tra s r and convey to 1 i
y , all of its right,
title and interest in and to that ccr yen' fpot wide Right of WOfor Canal from Southern Pacific i . a ' t recorded on March
Land Company to ConnsolidsatP. d
Re Evbrri fsa Po' r4 ornpan3, by i) No. _
23, 1923 in Book 580, page 33 of Da ds, iaa4the office n° ILCouty Recorder of Riverside County, State s2-' of California. ', ra: aWV' c:, ;,
IN WITNESS WHEREOF, this '} Srunnent " executed this day of zy: F
Y?' O J' THERN CALIFORNIA EDISON CO/ ANYYIP/
4-a corporation
NE FOR REG: 1RDER' S USE
s .'
SER. 6750 7pV J.O.
i-Approved

CORPORATE REAL ESTATE
BY JG DATE 11119107
rr
s
y
r
of California
CountAf.
tyti On before me,
By
NAME
Laura Verdugo
Right of Way Agent
Corporate Real Estate Dept.

Real Estate Operations Division
a Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence; to be the persons? whos`. rname( s) is/ are subscribed to the within instrument and acknowledged to me that he/ she/ thy executed the same in his/er/ their authorized capacity( ies), and that by his/er/ their signatures) on the instrument the person( s), or the entity upon behalf of which the person( s) acted, executed the instrument.
1 certify under PENAL' rY OF PERJURY under tine laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature
1786

RECORDING REQUESTED BY

SOUTHERN CALIFORNIA EDISON

COMPANY

WHEN RECORDED MAIL TO

SOUTHERN CALIFORNIA EDISON

COMPANY
14799 Chestnut Street,
Westminster, Ca. 92683
Attn: Title & Real Estate Services

GRANT DEED
Location: Unincorporated
A. P. N. 0580-11- 08
affects SCE iDocizment
242977
SPACE ACOVE THIS '. INE FOR RPG! DER' S USE

DOCUMENTARY TRANSFER TAX
COMPUTED ON FULL VA? ° yQF PRO 6rt- GONVEYED
CR COMPUTED ON FULL VA ., LICNS AND
ENCUMBRANCES REMAINING E OF SALE. AI IF. F. N GO,

SIGNATURE OF DECLARANT OR AGENT DETER' MINING T( FIR
MS6.

SER. C7307A

APPROVED

CORPORATE REAL

ESTATE DEPART ENT
GiNO: •
3Y , 1G . DATE 11706107
FOR A VALUABLE CONSIDERATIO: a
CALIFORNIA EDISON COMPANY, a corpora
Compel - 1y by , nergei creinafter
to '. .
of A. s' hereby acknowledged, SOUTHERN
success4S ' tn interest to California Electric Power
erred to as " Grantor») hereby GRANTS
40 u
r
hereinafter refer s to as " Gratifee") that cent
r ' real property' in the County of San Bernardino,
r,,
Stare of Califorij' iawescribecl+_' yk1.::: atceStain Deed. and Assignment between San Q; crgonio Electric Corporation attd (: 1j1` ornia E1e tE over Company, recorded November 2, 1949 in Book 1121, page 1 of Official .. cords in the Office of the County recorder of Riverside County and record er 2C, 19441in Book 2492, page 482, of Official Records in the Oi:: ce of the County recor,. a
of San18 ardino C ity y -described as follows:
fr
4, e1 "...( m) Appro tely o
y.•
acre of land located in Sec. 31. T. 1. S., R. 2. E., S. B. B. & M., as ed to San Gor . nio Eltctrie Corpora: icn by deed from Edward W. Bertram and Eva I'.

Berty , his wife , dat t
November 30, 1936 and recorded. December 15, 1936, in Book 1177, page 266, Ciftial Records o an Bernardino County, California„ 1 '•,
Sai ' fled fr Edward W. Bertram and ' a H. Bertram, his wife, dated November 30, 1936 and recorde" e
ber 15, 1936, in Book 1177, page 266, Official Records of San• Bernardinc County, Califon , is described as follow:

That portion of Section 31, Township 1 Sov. th, Range 2 East, S. B. B. 8;, M, described as follows:

Beginning at a point which bears S 30° 07' 30" E., a distance of 983. 64 feet from the Northwest corner of said Section 31; ther_ ce N. 87° 55" 30" W., a di. stai_ ce of 14. 23 feet; thence S 51° 15' 30" W., a distance of 90. 55 feet; thence S. 0° 55' W., a distance of 44.1 feet, thence S. 71° 02' Imo., a distance of 182. 00 feet; thence N. 86° 07' E., a distance of 138. 00 feet; thence NW. 1° 13' E., a MAIL TAX STATEMENTS TO:
1787
Grant Deed
S. C. E. Co., a corp., to
City of Banning and Banning Heights Mutual Water Company Serial No. 67307A
Affects SCE Document No, 242977
distance of 73.6 feet; thence S. 78° 5S' W., a distance of 139. 90 ft.; thence N. 87° 55' 3D W., a distance of 93. 37 ft. to the point of beginning, containing 1 acre, more or less." The real property hereby conveyed is not necessary or useful in the, rformai 0e of tile duties of said Southern California Edison Company to the public. f. .ata itc '. s.

SUBJECT TO current real property taxes and to covenants, c,o, iticns, trictions, reservations, exceptions, rights and easements of record. `' IN WHEREOF, said Southern Califon& k ',
WPC,
on Company h
aq this
instrument to be executed this day of '<-, s ;. 20______. - 4: y „,*,' Or • , ::

SO1THit` r tt.CALANIA EDISON COMPANY.
a corporatie • is.-,',
1,'.::
jj4 •
may.
r
f;.: • I. ...
c.:.,`
v '
Laura Verdugo
f = + , Operations Support
l. )' te Estate Operations Division
s}%- , 1' Corpprate Real Estate Department
State of California e:-. 9 ) TB -
County of _} 3. tv` " a :
iv .-.. %,.:.

Jv
j".:. . a+ , i.•.». tam

1.-
On». ... efore rne, ,
a Notary Public, personally
appearec:. i
i,'. :, _ who roved to me an the basis of satisfactory
a..

P
evider4ce to be " tt .- person{ S); zwli4 names) is/ are subscribed to the within instrument and ack' bwledged to m'` lhat he/ sbe1 hey executed the same in his/er/ their authorized capacity( ies), ti .
0: 4
that by his/erJVi~ Seir sign iziise( s) on the instrument the person( s), or the entity upon behalf of hi the person( s) ac{ , executed the instrument.
1 cercif . der PENAL OF PERJURY - under the laws of the State of California that the foregoing paragrapgis true an t.

WITNESS myt` l i - and official seal.

Signature
2-
1788
sOu7HERN CALrFORNIA
EDISON
An F. D1SON INTF- RNATiOhALe Company
Nino Mascolo
Law Aepai1inent
Candace helm
Hydro
August 14, 2007
Subject: SCE Project 344 Conveyance ofWater Facilities
San Gorgonio area
In response to your request, 1
have researched the information provided and have also
completed an appraisal of the land rights proposed to be acquired. The following appraisal is reported in a Summary Appraisal Report for the valuation of land in the San Bernardino National. Forest for sale purposes to Banning Heights Mutual. -Water Compaq.

The following rep= is intended to comply with the reporting requirements set forth in the Uniform. Standards ofProfessional Appraisal Practice ( USPAP) for the specific type ofappraisal and report. This report incorporates, by referGnc.', the data ana valuation analysis contained in the office file. The irforrnation contained intbis report iS specific and confidential to the needs of The Southern California Ed soa Company ( the client); the appraiser is not resaonsibie for unauthorized use ofthis report. Additional s,, µppor- inginformation is coniaired in the appraiser/ company work file and may be provided u_un request.

ClientIntended User: SCE Corporate Real Estate Dept, and other SCE personnel as required.

TD establish a value for sale purposes. Intended Use:
ldentificafon of Real
Estate: The subect property consists of a one -air: parcel located approxima' Lelyl0 miles northeast ofthe city of Bating, CA.

The site is located within the. San Bernardino National Forest a-. an e- J. evation. of approximately 7, 000 feet. The Assessors Parcel Number is 0580-11- 08 (San Bernardino County).

Type ofvalue appraised: Fair market vain.

Effective date ofappraisal
date ofreport; . Both as of August 14, 2007
Ownership: Southern California Edison ( SCE) Company. The property was orignall. y granted to California Electric Power, a SCE predecessor company, in October 1949.
1789
San Gorgonio Hydro Project 344 Conveyance
Vacant land excess to utility needs
Resource Conservation ( County of San Bernardino)
Res- Conservation, Preservation, or 1, 1itigation uses.

Limited access with no to limited 'utilities.

Fee simpler
Current Use:

Zoning:
iligbest and Best Use:

Real Property Interest
Valued:

Purpose of the
Assignment:

Effective Date ofValue
Opinion:

Date of Report:

Use ofreal estate at
Date ofvalue;
Scope of Work:

Sas Appsi #201094
To develop an opinion of the market value ofthe subject property for sale purposes as outlined in the draft " Agreement for Transfer of San Gorgonio Hydroelectric Project No. 344 Water Conveyance Facilities".

August ] 4, 2007
August 14, 2007
Vac- int land
The appraisal process used in this report consisted ofsearching coraparaablc sales of similar use land near the subject property, ara' yzir. gthe data and performing a valuation analysis using appropriate appraisal procedtre for the valuation of easements.

Zordng and use restrictions were ' verified with County of San Bernardino sources. Where possible, comparable sales were verified with a paityto or e. real estate broker involved in tae transaction. Seeoud. a'ysources such as First American Real Estate Services, Costar Comps, and brokers Internet websites were relied upon for data. Supporting data is retained in the appraiser' s
wont. Be.

The Sales Comparison Approach to value was used to
determine an unencumbered fee unit value of the land. The subject property is vacant forest land and does not generate income as is required in the Income Capitalization approacli.

Therefore. the Income approach is not applicable or
appropriate to value the unencumbered fee. The Cost
Approach is typically used in the valuation of improved properties. Since the subject property being appraised is vacant land, the Cost Approach is considered not applicable or appropriate.

Therefore, the only applicable and appropriate method to estimate the value of the unencumbered fee land is the Sales Comparison_ Approach.

Southern California Edison Company 2 of5 internal Document 1790
San Gorgonio Hydro -Project 344 Conveyance -
SCE Apps14207094
For the purposes ofthis appraisal, the unit of comparison used is the price per square foot or price per acre. These units are COITITTIOTI units pfcomparison used by buyers and sellers of land in this area.

Vauadon: The subject property is a one- arw: eparcel that was included in the sale of hydroelectric facilities from the San Gorgonio Electric Corporation to the California Electric Power Company in : 949. The sale included hydroelectric power plan'., • transmission lines, water rights, federal power licenses; rights of way, operating leases, and other i ;seellaneous documents and rights. The = rent agreement conveys these same
facilities from. SCE to a group of "Participating Entities" that consist ofthe San Gorgonio Pass Water Agency, Banning
Heights Mutual Water. Company and the City of B nming, CA_ It is prominently noted that this appraisal only values the one -acre parcel ofreal property defined in the agreement and no other heal or personal or other intangible property. interests.

A search was conducted for sales of vacant acreage in the area that was devoted to open space or mitigation uses. There were very few of these type sales in the Sotrthern California area.

The following chart illustrates the best available sales:
ocaftiona 1; i :
r,• t' :. ; : •"-::: •:- ...- :: , a I t Conservation
1) Mountain I nter, near i 635- 440. 0. 640 f
121812008 i $ 3, 02.,00 $ 4, 725
kiyDxlki, CA i
i
George M Mew- to Friends of he Desert Mountalas a
2) C. bazon aree, CA
t
514- 250- 004, elal 731. 4E 312312005 f $ 6, 000.00 ` $6, 203 Conservation LezerTr. -raFriendsofthe Desert Moart# sins r 1
Conservation3; 5x ; 700 $ 11, 850
Le Verne area, CA 8678- 015-10, etal ! 126. 5 # 2/ 6/006 $'•, J Sandra LaHsye to City of t.aVerne 1~ 1 -
4) Lake Forest area, CA ' 856- 011- 22 25. 38 l
2/2/005 1 $ 1, 900, 000 $ 81, 266 i C onservet n
1 1 --
Live Oak • Plaza, LLC to FoothiWEstern Transporiafion Corridor Agency Ext orninary •
Assumptions: It is assumed that the right being sold is the full fee intcres .

The appraiser reserves the right to revise the valuation based on any changes to the interest being sold.

It is also assumed that the property is vacant. Dee to the extreme location, a physical inspection. was not possible- and instead was analyzed with aerial photography. The appraiser reserves the right to revise the valuation ifany improvements are on the prop s.
1 ourl: en Cn7ifarniaEdi onampant' 3 of
Internal Document
1791
San Gorgonio Hydra Project 344 Conveyance
Hypothetical
Conditions:

Indicated
Exposure Time:

None
SCE Appsl P- 21094
Since this is considered a special use property —within a National Forest with limited access and developability, there is not data from which to derive an expos- zretime.

Reconciliation/ Conclusion:

The sales noted above represent recent sales ofland for conservation uses in the Riverside, San Bernardino, Los Angeles and Orange County areas.

Although the sa= es noted above are ali larger in size, small parcels as• the subject rarely transact in the market. The higher valued data above have some development potential ( good access, possibility of zoning change, etc...) and thus warrant a higher value. The subject property has virtually no likelihood ofdevelopment, 133. S. topographical challenges, limited access no access in winter) and therefore should not be considered in the' pe= part ofthe range of rata.

Taking these factors into consideration, and weighing the appropriateness, quantity and quality of the daata to support a value, it is my conclusion that the sales were determined to be applicable comparable unit values of the subject property.

Considering the 1Dfomation provided above as well as my professional judgment and experience as an appraiser, it is my opinionthat a reasonable unit value forthe subject property is S1Z, DQ0. 4dper acre:

Property Calculations: The subjectproperty is one acre in size. Therefore; the. . appraised value of the subject property is:

S12, 000 (Twelve Thousand Dollars)
Sattflzcr, L California EtiiBafl COmoam' 4 pf
j
Internal Aacutneni
1792
San Gorgonio ; hydro Project 344. Conveyance
CERTIFICATION:

SCE Appst 0201 094
I certify that to the best ofmy ]arowledge and belief:

The statements of fact contained in this report w e true and correct.

The reported analyses, opinions, and conclusions are limited only by the reported assumptions and limiting conditions and are my perm* impartial, and unbiased professional analyses, opinions, and eenc] usions. .

I have no present orprospective interest in the property that is the subject ofthis report and no personal .interest witb respect to the parties involved.

I bave no bias with respect to he property that is the subject ofthis report or to the parties involved with this assignment
My engagement in this assignment was not contingent upon developing or reporting precle' l
rmined results.

My compensation for completing this assignment is not coatngent upon he development or reporting of a predetermined value cc direction in value that favors the cause of the client, Elie amount ofthe value opinion, the Fttnirleent of a stipulated result, or the occurrence ofa subsequent event directly related to the intended use ofthis appraisal.

The reported analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with he requirements ofthe Code ofProfessional Ethics & Su ids of Profess oval Appraisal practice o° t're Appraisal Institute; which include #hc Unpror7u S' tarrdar• dsTr Professional Appraisal Pr, atice.

The use ofthis report is subject to tic reguiretncnl ofthe Appraisal Instate relating to review by its duly authorized representatives.
1 have not madc a personal inspection oftine property that is the subject ofthis report. • No one provided significant real property appraisal assistance to the person signing this ce: ti1cation.

I have the ]mowleige and experience required to complete tat assignment competently.

This appraisal assignment was not based on s requested minimum vane, valuation, a specific valuation, nor provides a value estimate for he approval of a lean ( federally or privately funded).

David L. Guder, CCEvl
Project Manager
Corporate Real Estate
t?AGC19$ 44
The Dfctiontn y ofRsai Estate Appraisal, The Appraisal ]nsrsate, 4th Carahcrs CaErffruia Edison Company
5 of5
Internal 3' locumexi
1793
Exhibit "D"
Water Rate Charges to Banning Heights
Banning Heights will pay for Second Tier water served by Banning to Banning Heights through the Facilities and water served by Banning to Banning Heights through infrastructure other than the Facilities at the customary rates for the commodity charge levied by Banning to its residential and agricultural customers for treated domestic water. The fixed monthly service charge will riot apply.

Banning has a three tier rate structure based on consumption. At the time of the signing of this _ agreement, the tiers are 0 to 9 Hundred Cubic Feet ( IICF), 10 to 29 HCF and 30 plus HCF. As usage increases, the commodity charge increases.

The water served to Banning Heights subject to this commodity charge will be taken in the aggregate. That is, Banning and Banning Heights will agree as to the total metered quantity served, Banning Heights will provide the total number of meters in service for the period, and the quantities to be billed at each tier will be determined by dividing the total amount of water served by the total number of meters in service, allowing for the correct number of mouths the water was served. The determination of tiers will not be done on a meter by meter basis.

The rate paid by Banning Heights for Second Tier water delivered the facilities will be capped, on a calendar year basis, at 50% ofthe total Operations and Maintenance costs incurred by the City in providing the service to Banning Heights, which are generally the costs for operating Well #6 or any substitute facilities for the calendar year in which the water was served. 1794
EXHIBIT " D"
DATE
CoNSU MPTION
READ CCFiUNITS) M. G. DAYS
04/9/1 50238. 00 0.0 0.0 0
05/8/1 78832. 00 28594. 00 21. 39 29
05/ 13/ 01 82700. 00 3868. 00

0.0 2. 89 5
05/ 24/ 01 82700. 00 0.0 0
06/7/1 105135. 00 22435. 00 16. 78 14
07/ 10/ 01 185806. 0 80671. 00 60. 34 33
08/1 259193. 00 73387. 00 54. 89 29
09/ 10/ 01 354682. 00 95489. 00 71. 43 33
10/ 08/1 399677. 00 44995. 00 33. 66 28
11/ 06/1 439877. 00 40200. 0 30. 07 29
12/ 06/1 467000. 0 27123. 00 20.9 30
01/8/2
02/7/2
493333. 00
516281. 00
26333. 00 19. 70 33
22948. 00 17.7 30
03/8/2 533016. 00 16735. 00 12. 52 29
04/8/2 546754. 00 13738. 00 10. 28 31 - __
05/8/2 566148. 00 19394. 00 14. 51 30
06/2 597837. 00 31689. 00 23. 70 29
07/8/2 639664. 00 41827. 00 31. 29 32
08/6/2 666274. 00 26610. 00 9.0 29
09/6/2 688730. 00 22456, 00 16. 80 31
10/ 07/2 716479. 00 27749. 00 20. 76 31
11/ 06/2
12/ 06/2
728952. 00 12473. 00 9. 33 30
729075. 00 123. 00 0.9 30
12/8/ 02 729075. 00 0.0 0.0 12
06/ 10/ 05 11778. 00 0.0 0.0 0
07/ 12/ 05 13702. 00 1924. 00 1. 44 32
08/9/5 16203. 00 2501. 00 1. 87 28
09/ 12/ 05 16391. 00 188. 00 0. 14

0. 28
34 10/ 07/5
11/ 08/5
16769. 00
17253. 00
378. 00 25
484. 00 0. 36 32
12/ 07/5 18130. 00 877. 00 0. 66 29
01/9/6 18191. 00 61. 00 0.5 33
02/8/6 18193. 00 2. 00 0.0 30
06/8/6 18197. 00 4. 00 0.0 28
07/ 11/ 06
07/ 30/ 07
18200. 0
18203. 0

3. 00 0.0 33

3. 00 0.0 18
07/ 30/ 07 10. 00 0.0 0.0 0
10/ 08/7 584. 00 574. 00 0. 43 28
11/ 05/7 913. 00 329. 00 0. 25 28
686165. 00 513. 25 985
AVG 696.1 0. 52
LOW
129, 364. 12
MID
164, 713. 62
HIGH I
185, 772. 90
3,17. 02 4, 223. 00 4, 763. 40
1795

CONSUMPTION
DATE READ CCF( UNITS) M. G. DAYS
04/9/1 50238. 00
05/8/1 78832. 00 28594. 00 21. 39 29
05/ 13/ 01 82700. 00 3868. 00 2. 89 5
05/ 24/ 01 82700. 00 0.0 0.0 0
06/7/1 105- 35. 00 22435. 00 16. 78 14
07/ 10/ 01 185806. 0 80671. 00 50. 34 33
08/1 259193. 00 73387. 00 54. 89 29
09/ 10/ 01 354682. 00 95489. 00 71. 43 33
10/ 08/1 399677. 00 44995. 00 33. 66 28
11/ 06/1 439877. 00 40200. 0 30. 07 29
12/ 06/1 467000. 0 27' 1.3. 00 20.9 30
416762. 00 311. 74 230
AVG/ Day 1, 812. 01 1. 36
Total Billed Amount in 2001 $ 41, 130. 27
Total if Billed Using Middle
Tier $ 36, 675. 06
Difference $ 4,55. 21
1796

CONSUMPTION
DATE READ CCF( UNITS) M. G. DAYS
01/8/2 493333. 00
02/7/2 516281. 00 22948. 00 17.7 30
03/ 38/ 02 533016. 00 36735. 00 12. 52 29
04/8/2 546754. 00 13738. 00 10. 28 31
05/8/2 566148. 00 19394. 00 14. 51 30
06/2 597837. 00 31689. 00 23. 70 29
07/8/2 639664. 00 41827. 00 31. 29 32
08/6/2 666274. 00 26610. 00 19. 90 29
09/6/2 688730. 00 22456. 00 16. 80 31
10/ 07/2 716479. 00 27749. 00 20. 76 31
11/ 06/2 72. 8952. 00 12473. 00 9. 33 30
12/ 06/2 729075. 00 123. 00 C. 09 30
12/8/ 02 729075. 00 0. 00. 0.0 12
Total 235742. 00 176. 34 344
AVG/ Day 685. 30 0. 51
Total Billed Amount in
2002 $ 25, 989. 28
Total if Billed Using
Middle Tier $ 20, 745. 30
Difference $ 5, 243. 98
1797

CONSUMPTION
DATE READ CCF( UNITS) M. G. DAYS
06/ 10/ 05 11778. 00
07/ 12/ 05 13702. 00 1924. 00 1. 44 32
08/9/5 16203. 00 2501. 00 1. 87 28
09/ 12/ 05 16391. 00 188. 00 0. 14 34
10/ 07/5 16769. 00 378. 00 0. 28 25
11/ 08/5 17253. 00 484. 00 0. 36 32
12/ 07/5 18130. 00 877. 00 0. 66 29
Total 6352. 00 4. 75 180. 00
AVG/ Day 35. 29 0.3
Total Billed Amount in
2005 $ 9, 446. 02
Total if Billed Using
Middle Tier $ 8, 130. 56
Difference $ 1, 315. 46
1798

CONSUMPTION
DATE READ CCF( UNITS} M. G. DAYS
01/9/6 18191, 00
02/8/6 18193. 00 2. 00 0.0 30
06/8/6 18197. 00 4. 00 0.0 28
07/ 11/ 06 18200, 00 3. 00 0.0 33
Total 9. 00 0.1 91
AVG/ Day 0. 10 0.0
Total Billed Amount in
2006 $ 1, 632. 4
Total if Billed Using
Middle Tier $ 11. 52
Difference $ 1, 620. 9
1799

CONSUMPTION
DATE READ CCF( UNITS) M. G. DAYS
07/ 30/ 07 18203. 00
07/ 30/ 07 10. 00 0.0 0.0 0
10/ 08/7 584. 00 574. 00 0. 43 28
11/ 05/7 913. 00 329. 00 0. 25 2S
Total 903. 00 0. 68 56
AVG 16.3 0.1
Total Billed Amount in
2005 $ 2, 945. 38
Total if Billed Using
Middle Tier $ 1, 210. 02
Difference $ 1, 735. 36
r:
k
L
1800
1801
1802
RESOLUTION NO. 2015- 68

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

CALIFORNIA, APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH

ASPEN ENVIRONMENTAL GROUP TO PROVIDE ENVIRONMENTAL AND

PERMITTING SERVICES RELATED TO THE FLUME
WHEREAS, in order to obtain a U. S. Forest Service (" USFS") Special Use Permit and other applicable permits or authorizations to repair, upgrade, operate and maintain existing water conveyance facilities the City deemed it necessary to obtain an environmental and permitting services consulting firm; and
WHEREAS, staff solicited proposals and statement of qualifications from consultants that demonstrated strong capabilities in environmental review and permitting complex infrastructure systems on National Forest System Lands; experience permitting for water conveyance systems; experience with USFS permitting; the full range of NEPA and CEQA analysis and compliance; and strong technical expertise in resource areas such as public utilities and ground water; and
WHEREAS, staff advertised a Request for Qualifications (" RFQ"), attached as Exhibit A", on May 18, 2015 in the Press Enterprise and on the City' swebsite and the RFQ is provided as Exhibit " B"; and
WHEREAS, following the evaluation committee recommendations, attached as Exhibit C" interviews were held on June 18, 2015, resulting in the selection of Aspen Environmental Group; and
WHEREAS, the fee schedule is attached as Exhibit " D" and a contract award in the amount of $82, 098.0will be funded by Account No. 663-00- 471. 96- 35 (Flume Project).

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

SECTION 1. The Banning City Council adopts Resolution No. 2015- 68 approving a Professional Services Agreement with Aspen Environmental Group ofAgoura Hills, California in an amount of $82, 098.0.

SECTION 2. The Administrative Services Director is authorized to make necessary budget adjustments and appropriations and transfers related to the project.

SECTION 3. The Interim City Manager is authorized to execute the Professional Services Agreement with Aspen Environmental Group of Agoura, California, in a form approved by the City Attorney.

Reso. No. 2015- 68
1803
PASSED, ADOPTED AND APPROVED this 14th day of July, 2015.

Deborah Franklin, Mayor
City of Banning
ATTEST:

Marie A. Calderon, City Clerk
City of Banning

APPROVED AS TO FORM AND
LEGAL CONTENT:

David J. Aire, City Attorney
Aleshire & Wynder, LLP
Reso. No. 2015- 68
2 1804
CERTIFICATION:

I, Marie Calderon, City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution No. 2015- 68, was duly adopted by the City Council of the City of Banning, California, at a Regular Meeting thereof held on the 14th day of July, 2015, by the following vote, to wit:

AYES:

NOES:

ABSTAIN:

ABSENT:

Reso. No. 2015- 68
Councilmembers Miller, Moyer, Peterson, Welch, Mayor Franklin Marie A. Calderon, City Clerk
City of Banning, California
3 1805
RESOLUTION NO. 2015- 68
EXHIBIT " A"

RFP ADVERTISEMENT
Reso. No. 2015- 68
1806

REQUEST FOR QUALIFICATIONS ( RFQ) FOR

ENVIRONMENTAL AND PERMITTING SERVICES
The City ofBanning ( City) is soliciting Statements of Qualifications ( SOQs) from qualified consulting firms to provide environmental and permitting services to the City for the purpose of obtaining a US Forest Service ( USFS) Special Use Permit and any other applicable agency penuits or authorizations, to repair, upgrade, operate, and maintain existing water conveyance facilities. In addition, the City may pursue a Federal Energy Regulatory Commission ( FERC) license to operate the existing conveyance system as a hydroelectric power plant, consistent with its historic use.

The City anticipates the need to consult with multiple agencies to identify issues and concerns, prepare environmental review documents under the National Environmental Policy Act ( NEPA) and California Environmental Quality Act (CEQA), and prepare a number of technical studies to support the Special Use Permit application.

A complete copy of the Request for Qualifications may be obtained by visiting the City of Banning website at http:// www. ci. banning. ca. us/ index. aspx? nid= 19or by contacting Ms. Holly Stuart, Public Works Analyst by email at hstuart@ci. banning. ca. us or by phone at ( 951) 922- 3138. The Proposals are due by Monday, June 1, 2015 by 10: 00 a. m. to the City ofBanning, City Clerk located at 99 E. Ramsey Street, Banning, CA 92220.

BY ORDER OF THE CITY CLERK of the City ofBanning, California. s/ Marie A. Calderon, City Clerk
City ofBanning, California
DATED: May 14, 2015
PUBLISH: May 18, 2015
1807
RESOLUTION NO. 2015- 68
EXHIBIT " B"

REQUEST FOR PROPOSALS
Reso. No. 2015- 68
1808
Request for Qualifications (RFQ)
Environmental and Permitting Services
Proud History
Prosperous Tomorrow
Responses Due:

City ofBanning
Public Works Department
99 E. Ramsey Street
Banning, CA 92220
951) 922- 3130
May, 2015
07/1/ 15
1809

TABLE OF CONTENTS

1. 0 INTRODUCTION

1. Project Description and Objectives

1. 2 Background Information
1 1
1 2. 0 CONSULTANT QUALIFICATIONS 1

2. 1 Project Administration and Coordination 2

2. Qualifications and Understanding 3

2. 3 Project Team 3

2. 4 References 4

2. 5 Schedule 4

2. 6 Workshops and Meetings 4

3. 0 PROPOSAL SUBMISSION 4

3. 1 RFP Time Schedule 4

3. 2 Number of Copies and Delivery 5

3. Format and Content 5

3. 4 Proposal Evaluations 6

3. 5 Negotiations 6

4. 0 CONTRACT REQUIREMENTS AND SUBMITTALS

4. 1 City of Banning Requirements
7 7
07/1/ 15 II
1810

1. 0 INTRODUCTION

1. PROJECT DESCRIPTION AND OBJECTIVES
The City of Banning ( City) is soliciting Statements of Qualifications ( SOQs) from qualified consulting firms to provide environmental and permitting services to the City for the purpose of obtaining a US Forest Service ( USFS) Special Use Permit and any other applicable agency permits or authorizations, to repair, upgrade, operate, and maintain existing water conveyance facilities. In addition, the City may pursue a Federal Energy Regulatory Commission ( FERC) license to operate the existing conveyance system as a hydroelectric power plant, consistent with its historic use.

The City anticipates the need to consult with multiple agencies to identify issues and concerns, prepare environmental review documents under the National Environmental Policy Act ( NEPA) and California Environmental Quality Act ( CEQA), and prepare a number of technical studies to support the Special Use Permit application.

1. 2 BACKGROUND INFORMATION
The City and its partner agencies ( Banning Heights Mutual Water Company and San Gorgonio Pass Water Agency) hold water rights to surface waters originating at stream diversions on the South Fork and Middle Fork of the Whitewater River, at about 7, 200 feet elevation. The water is currently conveyed to the Banning Heights Mutual Water District via a flume and penstock system that is owned by Southern California Edison SCE), under license by FERC ( San Gorgonio Hydroelectric Project No. 344). The conveyance system is located in part on National Forest System lands managed by the San Bernardino National Forest ( SBNF), and in part on City -owned lands. The conveyance system has been damaged by storms and erosion, and is not in operation for power generation; however, it continues to convey water. The system provides about 30 percent of the City' s municipal water supply, and 100 percent of the Banning Heights Mutual Water Company' ssupply. SCE has applied to FERC to surrender its license; that application is currently under FERC review. Upon surrender of the license, SCE proposes to transfer ownership of the conveyance system to the City and its partner agencies.

A summary of the system' s history, current status, and ongoing regulatory proceeding may be found at the FERC web site: https:// www. ferc. gov/ whats- new/ commmeet/ 2014/ 091814/ H-3.pdf

2. 0 CONSULTANT QUALIFICATIONS
Qualified consultants should be located in southern California. The SOQ must demonstrate strong capabilities in environmental review and permitting of complex infrastructure systems on National Forest System Lands within the past five years; experience permitting for water conveyance systems within the past five years; experience with USFS permitting within the past five years; the full range of NEPA and 07/1/ 15 1
1811
CEQA analysis and compliance; and strong technical expertise in resource areas including but not limited to:

Public utilities and services
Public health and safety
Surface hydrology
Groundwater
Biological resources
Cultural resources
Land use
Geology and soils
In addition, qualified consultants should have strong prior experience with county, city, and local districts, and a strong understanding of the FERC regulatory processes. The SOQ should demonstrate staffing capacity and availability to provide the needed services; ability to meet with City staff and other agencies on short notice; and ability to complete tasks and high -quality, professional, and legally defensible work products according to agreed -upon schedules. Specify any conflict of interest conditions and/ or disclose the firm' s or subconsultants' prior work or ongoing work with other interested parties.

2. 1 PROJECT ADMINISTRATION AND COORDINATION
Kick- off Meeting
Upon receipt of a written Notice to Proceed from the City of Banning, consultant shall conduct a kick- off meeting with the City and/ or Participating Entities (" PE") to review the scope of the project, develop a project schedule, and confirm deliverables. The project schedule shall include each task and subtasks, milestones, critical path designation and a schedule for progress meetings.

Multi -Agency Coordination
The City, has been working with Banning Heights, SCE and the San Gorgonio Pass Water Agency (" Pass Water") for a number of years to secure control of the Flume, once SCE' s Surrender Application has been accepted by the Federal Energy Regulatory Commission (" FERC"), which is anticipated to be handed down at any time. It is very important to coordinate with all participating Pes, as well as, other entities as needed.

Project Milestone/ Mothly Meetings
Consultant shall prepare a project execution schedule with major milestones for approval.

Consultant shall prepare regular progress reports each month. 07/1/ 15 2
1812

2. QUALIFICATIONS AND UNDERSTANDING
This section should describe one or more proposed strategies for achieving the objectives of the RFQ. It should provide a description of environmental services tasks that will be needed to complete the project objective, including a list of anticipated documents and technical studies needed, and list of local, state, and federal agencies that are likely to be involved. The narrative should include a description of the logical progression of tasks and efforts and estimated schedule for the completion of the work.

Please note that the City has not identified a specific scope of work. The Qualifications and Understanding section of the SOQ should demonstrate the consultant' sunderstanding of the project, and its ability to develop a detailed scope, including schedule and budget, in collaboration with the City. The overall permitting strategy may necessitate a phased process, such that only the initial tasks and budget can be specified at this time. In addition, please provide descriptions of no more than four comparable projects the firm has completed.

Each Consultant must provide the following information about their company so the City can evaluate the Consultant' s
stability and ability to support the commitments set forth in response to the RFQ. It is imperative the Consultant' sproposal fully address all aspects of the RFQ. The proposal must provide the City Staff with clearly expressed information concerning the Proposer' sunderstanding of the City' sspecific requirements which would result in the conduct of this study in a
thorough and efficient manner.

The Consultant shall outline their company' s (or team' s) background, including:

How long the company has been in business, plus a brief description of the company history, size and organization.

Consultant qualifications to complete the scope of services and a statement of understanding of the work involved to complete this assignment.

2. 3 PROJECT TEAM
Each Consultant must provide the following information about their project team.

Primary point of contact, person responsible for overall corporate commitment must be a company principal or officer) and project manager. Describe the responsibilities of the individuals and extent of involvement with the project.

Identify and list key individuals proposed for the project team. Describe the responsibilities of the individuals and extent ofinvolvement with the project.

All key personnel listed should have current names, titles and telephone numbers and be listed on at least one ofthe supplied client references who are familiar with work performed by the individual in a similar capacity. References will be contacted as part ofthe selection process.
07/1/ 15 3
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3. 2 NUMBER OF COPIES AND DELIVERY
Four ( 4) copies of the proposal shall be submitted to the following address:

City of Banning
City Clerk' s Office
99 E. Ramsey Street
P. O. Box 998
Banning, CA 92220
The proposal title, consultants name and deadline information shall be clearly identified on the submission package and cover page. Submission deadline is Monday, June 1, 2015 at 10: 00 a. m. Proposals submitted after that time shall not be considered. All questions regarding the scope of work shall be submitted to Holly Stuart, Public Works analyst at the address above or via e- mail at hstuart@ci. banning. ca. us.

3. FORMAT AND CONTENT
Proposals shall be printed on 8 '''A" X 11" paper, single sided in a 10 point Arial font and be limited to 25 pages excluding the cover letter, resumes and any appended infotauation.

Proposals should address the following items in order of appearance:

Cover letter
The cover letter shall be provided which explains the firm' sinterest in the project. The letter shall contain name/ address/ phonenumber of the person who will serve as the firm' s principal contact person.

Qualifications of Firm/ Project Team
Provide names, titles and responsibilities of key personnel who will be responsible for the management of the project. Include qualifications, resumes, experience of each, and length oftime with the company.

References
Give at least three ( 3) references for projects of similar size and scope, including at least three ( 3) references for projects completed during the past five years. Include the name and organization, a brief summary of the work, the cost of the project and the name and telephone number of a
responsible contact person.

Strategy and Implementation Plan
Prepare a list of tasks to address the Scope of Work. Describe the firm' sinterpretation of the City' s objectives with the regard to this RFP. Describe the proposed strategy and/ or plan for achieving the objectives of the RFP. The narrative should include a description of the logical progression oftasks and efforts. Also include an explanation of the type of technology that will be used. This section shall also include a time schedule for the completion ofthe project and an estimate of time commitments from City staff. 07/1/ 15 5
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Proposed quality assurance program ( QA/C)
Explain the firm' s
quality assurance program and the proposed approach for implementing the plan with this project.

Fee Proposal: One set in a separate sealed envelope
The Fee Schedule in a separate envelope shall be broken down on separate sheets as follows:

A " Not to Exceed" fee for all services. Man- hours and billing rates per classification ofpersonnel will be indicated for each task and/ or subtask.

Provide a complete list of costs per task and/ or subtask and a total fee for the proposal, including expected reimbursable expenses ( non -binding), for completion ofthe scope of services set forth in the proposal.

A current hourly Fee Schedule for Fiscal Year 2014/015 and classification of personnel for the firm, along with the type of work they and any sub consultants will perfouna, is also required.

All printing and reproduction costs, research, meetings, mileage, telephone usage, general office supplies and overhead, etc., shall be included in the proposal and its " Not to Exceed" Fee schedule. Proposals should be prepared in a straight forward manner.

Note: A separate fee schedule is required for each project location.

3. 4 PROPOSAL EVALUATION
Proposals will be evaluated based on the following criteria:

Responsiveness to the RFP.

Consultant qualifications, project understanding, and overall experience.

Technical Competency.

Results of reference checks.

Project Schedule.

Proposed QA/C plan.

Proposal Fee.

3. 5 NEGOTIATIONS
In an effort to manage the resources available for this project, the City may find it necessary to negotiate tasks, include contingencies for additional meetings or workshops, and address other factors identified by the Proposer not contemplated in this document or the City' sstandard agreement.
07/1/ 15 6
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4. 0 CONTRACT REQUIREMENTS AND SUBMITTALS

4. 1 CITY OF BANNING REQUIREMENTS
The Contract will be presented to Council for approval. Please provide a copy of the
attached City agreement to your legal team and insurance provider, if you are selected for Final Evaluation. This will expedite the process. A purchase order will not be granted until the contract is signed and all insurance requirements are satisfied. 07/1/ 15 7
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RESOLUTION NO. 2015- 68
EXHIBIT " C"

PROPOSAL EVALUATION SUMMARY
Reso. No. 2015- 68
1818
Design
of Improvements
at
Roosevelt
Williams
Park
Reviewer
s
Aspen Envir
onmental Group
Meridia
n
KWC
Placeworks
Consultants
City
ofBanning,
Acting
Director
of
Public
Works
86 85. 5

84. 5
51 Banning
Heights
Municipal
Water
Company,
Board
of
Directors
President
66 65
352
Stockton
Consutling,
Stephen
P.

Stockton
76 77 . 5
71 49
Total
Score Average
Score
228 76 . 0
228 76. 0
190 . 5
63 . 5
102 34 . 0
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RESOLUTION NO. 2015- 68
EXHIBIT " D"

ASPEN ENVIRONMENTAL GROUP

FEE SCHEDULE
Reso. No. 2015- 68
1820
Aspen Team Hourly Fee Schedule
Fiscal Year 2014/015
Personnel Classification Proposed Work Rates
Jon Davidson Principal Associate Principal -in -Charge 195 Chris Huntley Senior Associate II Project Manager, Biological Resources 165 Scott White Senior Associate Ill Permitting Lead, Biological Resources 175 Negar Vahidi Senior Associate Ili
NEPA/ CEQA Lead, Land Use and
Planning, Environmental Justice
160
Scott Debauche Associate II
Aesthetics, Noise, Population, Housing
and Environmental Justice, Public
Services and Utilities, Transportation
and Traffic
100
William Walters Senior Associate III Air Quality and Greenhouse Gases 170 Justin Wood Associate II Biological Resources 100
Carla Wakeman Associate II Biological Resources 100
Jared Varonin Senior Associate I CDFW/ USACE Permitting 110 Elizabeth Bagwell Senior Associate I
Cultural and Paleontological
Resources
110
Evan Elliott Associate I
Cultural and Paleontological
Resources
75 Anton Kozhevnikov Senior Associate I Geographic Information Systems 140 Tracy Popiel Associate I Geographic Information Systems 75 Matthew Long Associate II Geology/ Soils, Mineral Resources, Surface Hydrology/ Water Quality
210
Philip Lowe Senior Associate III Groundwater, Surface Hydrology and Water Quality
165
Susanne Huerta Associate II
Land Use and Planning, Public
Services and Utilities, Recreation
87 Jamison Miner Associate II Biological Resources 95
Jennifer Lancaster Associate It Biological Resources 95 Melissa Jordan Staff I Administrative Assistant 65
Mara! Koshkarian Staff I Accounting 65
Subconsultants
James Thurber Senior Geologist
Geology/ Soils, Mineral Resources,
Groundwater, Hazards/ Hazardous
Materials
180
Aurie Patterson. Senior Geologist Geology/ Soils, Mineral Resources, Hazards/ Hazardous Materials
110
John Kessler Principal FERC Regulatory Specialist 100
William Lahaye Principal USFS Special Use Compliance 110 1821
Aspen Environmental Group
City of Banning
Qualification for Environmental and Permitting Services Summary Page
Task 1 Task 2 Total
Initial
Coordination Meetings
Aspen Environmental Group - Labor 47,92 29, 870 77, 362 Aspen Environmental Group - ODC 1,83 1, 001 2, 184
ASPEN ENVIRONMENTAL GROUP TOTAL 48, 675 30, 871 79, 546 SUBCONTRACTOR COST:

Getoechnical Consultants 792 792 1, 584
Willaim S. LaHaye 484 484 968
Kessler and Associates 440 440 880
Total Subcontractor Cost 1, 276 1, 276 2, 552
Total Cost Per Task 49, 951 32, 147 82, 098
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Aspen Environmental Group
City of Banning
Qualification for Environmental and Permitting Services Cost Estimate
Prime Contractor: Aspen Environmental Group
A pen Labor Costs
Task 1
Data Review and Initial
Coordination
Task 2
Meetings
Total
Key Personnel/ Category Hourly Rate' Hours Amount Hours Amount Hours Amount Jon Davidson, Vice President 195. 00 8 1, 560 20 3, 900 28 5, 460 Chris Huntley 165. 00 90 14, 850 80 13, 200 170 28, 050 Scott White 175. 00 90 15, 750 40 7, 000 130 22, 750
Negar Vahidi 160. 00 18 2, 880 16 2, 560 34 5, 440
Jared Varonin 110. 00
Scott White 175. 00
Phil Lowe 165. 00 30 4, 950 16 2, 640 46 7, 590
Beth Bagwell 110. 00 20 2,00 4 440 24 2, 640
Justin Wood 100. 00
Carla Wakeman 100. 00
Jamison Miner 95. 00
Jennifer Lancaster 95. 00
Susanne Huena 87. 00 56 4, 872 56 4, 872
Scott Debauche 100. 00
Will Walters 170. 00
Tracy Valentovich 75. 00 4 300 4 300
Anton Kozhevnikov 140. 00
Melissa Jordan 65. 00
Maral Koshkarian 65. 00 2 130 2 130 4 260
TOTAL 318 47,92 176 29, 870 496 77, 362
Including fringe benerils, overhead, and fee.

Non - Labor Costs
Direct Project Cost Item Unit Cost
Printing & CD reproduction
Mileage- 2 Wheel Drive (per mile) 0. 55 500 275 1, 200 660 1700 935 Mileage - 4 Wheel Drive (per mile) 0. 75
Travel and Per Diem 750 250 1, 000
Postage/ Delivery
Outside Word Processing/ Data Entry
Outside Services Graphics/ Mapping
Document/ Data Acquisition
Miscellaneous 50 50
Subtotal ODC Cost 1, 075 910 1, 965
Aspen Fee 10% 108 91 199
Total ODC Cost 1,83 1, 001 2, 184
Total Cost by Task 318 48, 675 178 30, 871. 496 79, 546 Assumptions: Task 1
104 hours for review of existing data by Chris Huntley, Scott White, Negar Vahidi, and Phil Lowe. 24 hours meetings with ANF/ Banning for Chris Huntley and Scott White 16 hours mist calls and coordination
40 hours development of draft Project Description and Purpose & Need statement Assumptions:. Task 2
One or two Aspen team leaders in person at all meetings. Others by conference calls as needed. 1823
Aspen Environmental Group
City of Banning
Qualification for Environmental and Permitting Services Cost Estimate
Subcontractor Name: Geotechnical Consultants Inc
A pen Labor Costs
Task 1
and Initial
Coordination
Task 2
Meetings
Total
Key Personnel/ Category Hourly Rate*
Jim Thurber 180. 00 4 4 8
Aurie Patterson 150. 00
TOTAL 4 4 8
ir
Including fringe benefits, overhead, and fee.

LABOR COST ($)
Key Personnel/ Category
Jim Thurber 720 720 1, 440
Aurie Patterson
Total Labor Cost 720 720 1, 440
Non -Labor Costs
Direct Project Cost Item Unit Cost
Internal Copies ( per page) 0. 10
Outside Copies/ Prnting cost
Mileage - 2 Wheel Drive ( per mile) 0. 55
Mileage - 4 Wheel Drive (per mile) 0. 75
Monitor Vehicle Expenses
Monitor Meals
Travel and Per Diem cost
Postage/ Delivery cost
Telephone cost
Outside Word Processing/ Data Entry cost
Outside Services Graphics/ Mapping cost
Document/ Data Acquisition cost
Miscellaneous cost
Total ODC Cost
Total Cost by Task 720 720 1, 440
Aspen Fee 72 72. 144
Total Subcontractor Cost per Task 792 792 1, 584
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Aspen Environmental Group
City of Banning
Qualification for Environmental and Permitting Services Cost Estimate
Subcontractor Name: William Lahaye
F hr & Peers Labor Costs
Task 1
and Initial
Coordination
Task 2
Meetings
Total
Key Personnel/ Category Hourly Rate`
William Lahaye 110. 00 4 4 8
TOTAL 4 4 8
ncluding fringe benefits, overhead, and fee.

LABOR COST ($)
Key Personnel/ Category
William Lahaye 440 440 880
Total Labor Cost 440 440 880
Non -Labor Costs
Direct Protect Cost Item
Internal Copies ( per page) 0. 10
Outside Copies/ Prnting cost
Mileage - 2 Wheel Drive ( per mile) 0. 55
Mileage - 4 Wheel Drive ( per mile) 0. 75
Monitor Vehicle Expenses
Monitor Meals
Travel and Per Diem cost
Postage/ Delivery cost
Telephone cost
Outside Word Processing/ Data Entry cost
Outside Services Graphics/ Mapping cost
Document/ Data Acquisition cost
Miscellaneous cost
Total ODC Cost
Total Cost by Task 440 440 680
Aspen Fee 44 44 88
Total Subcontractor Cost per Task 484 484 968
Uni
1825
Aspen Environmental Group
City of Banning
Qualification for Environmental and Permitting Services Cost Estimate
Subcontractor Name: Kessler and Associates
hr & Peers Labor Costs
Task 1
and Initial
Coordination
Task 2
Meetings
Total
Key Personnel/ Category Hourly Rate*
John Kessler, FERC Regulatory Specilalist 100. 00 4 4 8 TOTAL 4 4 8
Including fringe benefits, overhead, and fee.

LABOR COST ($
Key Personnel/ Category
John Kessler, FERC Regulatory Specilalist 400 400 800
Total Labor Cost 400 400 800
Non - Labor Costs
Direct Project Cost Item
Internal Copies ( per page) 0. 10
Outside Copies/ Printing cost
Mileage - 2 Wheel Drive ( per mile) 0. 55
Mileage - 4 Wheel Drive (per mile) 0. 75
Monitor Vehicle Expenses
Monitor Meals
Travel and Per Diem cost
Postage/ Delivery cost
Telephone cost
Outside Word Processing/ Data Entry cost
Outside Services Graphics/ Mapping cost
Document/ Daa Acquisition cost
Miscellaneous cost
Total ODC Cost
Total Cost by Task 400 400 800
Aspen Fee 40 40 80
Total Subcontractor Cost per Task 440 440 . 880
Unit Cost
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RESOLUTION 2018- 19 UA

A RESOLUTION OF THE BANNING UTILITY AUTHORITY OF BANNING,

CALIFORNIA, APPROVING AN AMENDMENT TO THE PROFESSIONAL SERVICES

AGREEMENT WITH ASPEN ENVIRONMENTAL GROUP IN THE AMOUNT OF 50,000 FOR ENVIRONMENTAL SERVICES RELATED TO THE SAN GORGONIO FLUME
WHEREAS, the City of Banning along with the Banning Heights Mutual Water Company (" Banning Heights") and the San Gorgonio Pass Water Agency, collectively known as the Participating Entities ( PE) have been working with the United States Forest Service (" Forest Service") to facilitate the transfer of the San Gorgonio Flume Flume") pending Southern California Edison ( SCE) surrender application before the Federal Energy Regulatory Commission ( FERC) for its hydropower project known as the San Gorgonio Hydroelectric Project No. 344; and
WHEREAS, a Forest Service issued Special Use Permit ( SUP) must be obtained for those parts of the Flume that are not covered by an existing right- of-way originally dedicated for the operation of the Flume and which lay on Forest Service lands; and
WHEREAS, the Forest Service must comply with the National Environmental Policy Act ( NEPA) prior to the issuance of an SUP which includes the preparation of several environmental studies necessary to support the NEPA determination; and WHEREAS, on July 14, 2015 City Council adopted Resolution 2015- 68, Approving a Professional Services Agreement with Aspen Environmental Group to Provide Environmental and Permitting Services related to the Flume" and on May 10, 2016, the Banning Utility Authority approved Resolution 2016- 07 UA, " Approving the First Amendment to the Professional Services Agreement with Aspen Environmental Group of Agoura Hills, CA in the amount of $20,000 for Environmental and Permitting Services related to the Flume for a total agreement amount of $102,098" and on May 23, 2017 the Banning Utility Authority adopted Resolution 2017- 07 UA " Approving an Amendment to the Professional Services Agreement with Aspen Environmental Group in the Amount of $150,745 for Environmental Services Related to the Flume"; and WHEREAS, Aspen Environmental Group (" Aspen") has continued to play a significant role in the Flume project and there continues to be a need for the services provided by Aspen. As part of this amendment Aspen will be tasked on an as-needed basis to participate in discussions with the Forest Service and to review technical analysis prepared by other agencies ( e.g. Forest Service, FERC and SCE) that could impact the NEPA determination; and
Resolution 2018-19 UA
1832
WHEREAS, the cost of the amendment shall be funded by Account No. 660- 6300-471.90-78 (Planning/Design/Capital).

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

SECTION 1 . The Banning Utility Authority adopts Resolution No. 2018-19 UA approving the Amendment to the Professional Services Agreement with Aspen Environmental Group of Agoura Hills, CA in the amount of $50,000 for Environmental Services related to the San Gorgonio Flume.

SECTION 2. The Interim City Manager or his designee is authorized to make necessary budget adjustments, appropriations and transfers related to the Amendment to the Professional Services Agreement.

SECTION 3. The Interim City Manager is authorized to execute the Amendment to the Professional Services Agreement with Aspen Environmental Group of Agoura Hills, CA for environmental services related to the San Gorgonio Flume.

PASSED, ADOPTED AND APPROVED this 9th day of Octa
ATTEST:

Sonja De ue
City of Banning

APPROVED AS TO FORM
AND LEGAL CONTENT:

Kevin G. Ennis, City Attorney
Richards, Watson & Gershon
Reso luti on 20 I8-1 9 UA
n
1833
CERTIFICATION:

I, Sonja De La Fuente, Secretary of the Banning Utility Authority of the City of Banning, California, do hereby certify that the foregoing Resolution 2018-19 UA was adopted by the City Council of the City of Banning at a regular meeting thereof held on the 9th day of October, 2018, by the following vote , to wit:

AYES:

NOES:

ABSENT:

ABSTAIN :

Board Members Andrade , Franklin , Peterson, Welch , and Chairman Moyer None
None
None
Sonja De La Fuente, Secretary
Banning Utility Authority
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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: Preliminary Results of Operations for Fiscal Year 2023-24 RECOMMENDATION:

Receive and file.

BACKGROUND:

The City's Fiscal Year is July through June. While the numbers are not yet final, staff would like to share the current preliminary results of operations for Fiscal Year 2023-24.

The results are in the attachment to this report. To view on the transparency portal, go to:
https://banningca.opengov.com/transparency#/104821/accountType=revenuesVersusExpenses&embed=n&breakdow JUSTIFICATION:

Staff would like to share preliminary financial results to Council for Fiscal Year 2023-24 for transparency.

These results are not finalized and are subject to change. Staff will bring the externally audited Annual Comprehensive Financial Report to Council in January or February upon issuance of the audit opinion.

FISCAL IMPACT:

None. This is a report of the results of last fiscal year.

ALTERNATIVES:

None.

BUDGETED?:

No
CONTRACT/AGREEMENT:

No
ATTACHMENTS:

1. Preliminary Results of Operations FY 2023-24.pdf
1914
FY 2023-24 Preliminary Results of Operations By Fund Grouping Fund Group Assets Liabilities Revenues Expenses Encumbrances Budgeted Net Income Net Income-BS Current Fund Balances General Fund 12,988,098.23 9,517,157.08 33,246,063.37 33,731,676.91 - (1,139,394.00) (485,613.54) 3,470,941.15 Special Revenue 6,740,545.35 4,405,186.11 6,349,250.06 8,230,719.09 - (5,057,237.00) (1,881,469.03) 2,335,359.24 Capital Projects 9,548,430.27 195,372.71 759,680.65 537,145.65 - (849,247.00) 222,535.00 9,353,057.56 Airport 2,295,106.18 230,042.85 215,781.32 485,309.09 - (136,740.00) (269,527.77) 2,065,063.33 Transit 6,887,259.99 6,695,348.74 5,128,027.16 3,814,309.71 - (1,920,401.00) 1,313,717.45 191,911.25 Water 106,726,146.16 24,392,607.96 32,198,071.60 15,549,415.36 - (7,208,143.00) 16,648,656.24 82,333,538.20 Wastewater 50,763,001.46 5,413,149.56 17,112,938.17 4,911,041.57 - (118,958.00) 12,201,896.60 45,349,851.90 Electric 84,330,715.16 35,362,897.03 43,360,022.39 46,847,783.48 - (16,201,789.00) (3,487,761.09) 48,967,818.13 Refuse - - - 1,042,518.50 - - (1,042,518.50) -
ISF (1,865,303.46) 8,093,976.13 14,197,241.60 16,015,900.48 - (2,716,024.00) (1,818,658.88) (9,959,279.59) Fiduciary 1,097,066.53 49,192.73 520,991.42 188,525.67 - 6,707.00 332,465.75 1,047,873.80 Successor Agency 947,232.84 23,922,797.17 4,646,752.00 3,372,035.75 - 71,327.00 1,274,716.25 (22,975,564.33) 1915
FY 2023-24 Preliminary Results of Operations By Fund
Fund Type Fund Assets Liabilities Revenues Expenses Encumbrances Beudgeted Net Income Net Income-BS Current Fund Balances General Fund 001 11,595,226.57 9,079,578.63 32,764,677.94 33,483,959.46 - (1,493,108.00) (719,281.52) 2,515,647.94 General Fund 002 (624,762.81) 437,578.45 231,385.43 244,703.16 - 113,311.00 (13,317.73) (1,062,341.26) General Fund 005 2,011,524.69 - 250,000.00 2,512.44 - 240,303.00 247,487.56 2,011,524.69 Special Revenue 100 (690,957.28) 202,812.62 1,714,075.41 2,462,459.43 - (1,182,741.00) (748,384.02) (893,769.90) Special Revenue 101 1,137,857.90 318,785.50 1,045,083.28 1,558,750.14 - (1,275,546.00) (513,666.86) 819,072.40 Special Revenue 102 818,737.96 192,422.56 865,261.11 762,549.03 - (1,604,318.00) 102,712.08 626,315.40 Special Revenue 110 (53,659.30) 607.66 90,540.69 95,274.32 - (774,709.00) (4,733.63) (54,266.96) Special Revenue 111 83,874.97 3,880.41 149,019.90 145,880.00 - (7,580.00) 3,139.90 79,994.56 Special Revenue 132 328,731.56 10,513.55 52,441.01 18,524.48 - (77,400.00) 33,916.53 318,218.01 Special Revenue 140 1,928.20 - 57.39 - - 30.00 57.39 1,928.20 Special Revenue 148 185,376.86 186,378.89 6,938.98 21,051.74 - (14,884.00) (14,112.76) (1,002.03) Special Revenue 150 (117.84) - - 28.52 - (29.00) (28.52) (117.84) Special Revenue 200 46,948.83 7,525.48 4,204.25 1,305.96 - (10,907.00) 2,898.29 39,423.35 Special Revenue 201 64,058.06 18.01 12,809.93 2,064.92 - 917.00 10,745.01 64,040.05 Special Revenue 202 (114.96) - - 28.52 - (29.00) (28.52) (114.96) Special Revenue 203 6,743.35 - 1,676.79 199.36 - 613.00 1,477.43 6,743.35 Fiduciary 221 590,693.33 - 325,795.18 - - - 325,795.18 590,693.33 Special Revenue 222 1,653,816.58 1,731,554.28 2,335,923.87 2,413,661.57 - 15,793.00 (77,737.70) (77,737.70) General Fund 300 6,109.78 - - - - 100.00 - 6,109.78
Fiduciary 360 38,372.55 - 1,141.85 - - 600.00 1,141.85 38,372.55 Fiduciary 365 79,342.65 19,957.53 2,361.00 - - 1,200.00 2,361.00 59,385.12 General Fund 370 - - - 191.85 - - (191.85) -
Fiduciary 375 388,658.00 29,235.20 191,693.39 188,525.67 - 4,907.00 3,167.72 359,422.80 General Fund 376 - - - 310.00 - - (310.00) -
Capital Projects 400 306,009.33 - 41,566.55 193.88 - 6,275.00 41,372.67 306,009.33 Capital Projects 410 1,444,735.29 - 119,791.54 210.96 - 25,794.00 119,580.58 1,444,735.29 Capital Projects 420 2,147,221.83 4,563.60 152,052.14 7,559.16 - (369,767.00) 144,492.98 2,142,658.23 Capital Projects 430 507,761.83 7,264.48 120,290.48 163,011.51 - (60,452.00) (42,721.03) 500,497.35 Special Revenue 444 413,220.44 - 12,299.89 136.84 - 5,863.00 12,163.05 413,220.44 Capital Projects 451 300,723.84 - 291,425.61 293,986.12 - (407,617.00) (2,560.51) 300,723.84 Capital Projects 470 687,680.51 - 34,168.28 88.40 - (88.00) 34,079.88 687,680.51 Airport 600 2,295,106.18 230,042.85 215,781.32 485,309.09 - (136,740.00) (269,527.77) 2,065,063.33 1916
FY 2023-24 Preliminary Results of Operations By Fund
Fund Type Fund Assets Liabilities Revenues Expenses Encumbrances Beudgeted Net Income Net Income-BS Current Fund Balances Transit 610 6,887,259.99 6,695,348.74 5,128,027.16 3,814,309.71 - (1,920,401.00) 1,313,717.45 191,911.25 Water 660 99,829,226.59 5,692,937.32 29,507,223.76 12,937,672.91 - (4,020,160.00) 16,569,550.85 94,136,289.27 Water 661 3,336,983.01 21,793.13 679,376.55 1,920,460.61 - (3,284,364.00) (1,241,084.06) 3,315,189.88 Water 662 1,400,939.37 2,472.46 41,687.99 - - 20,000.00 41,687.99 1,398,466.91 Water 663 1,592,272.18 (0.01) 6,033.65 - - - 6,033.65 1,592,272.19 Water 669 566,725.01 18,675,405.06 1,963,749.65 691,281.84 - 76,381.00 1,272,467.81 (18,108,680.05) Electric 670 88,893,401.50 11,462,572.96 38,886,706.61 40,966,912.51 - 3,127,505.00 (2,080,205.90) 77,430,828.54 Electric 672 6,817,835.21 - 202,879.49 - - 100,000.00 202,879.49 6,817,835.21 Electric 673 (14,844,117.72) 892,698.34 1,105,223.44 4,351,144.67 - (19,148,779.00) (3,245,921.23) (15,736,816.06) Electric 674 698,605.13 24,238.13 27,880.53 - - (72.00) 27,880.53 674,367.00 Electric 675 1,236,157.58 37,355.52 714,931.54 543,354.96 - (315,632.00) 171,576.58 1,198,802.06 Electric 678 1,528,833.46 22,946,032.08 2,422,400.78 986,371.34 - 35,189.00 1,436,029.44 (21,417,198.62) Wastewater 680 28,610,289.74 2,182,038.79 15,737,435.47 4,809,242.05 - 149,670.00 10,928,193.42 26,428,250.95 Wastewater 681 11,041,262.19 12,413.68 476,680.09 42,993.09 - (768,280.00) 433,687.00 11,028,848.51 Wastewater 682 8,152,017.98 - 587,810.59 1,782.49 - 488,815.00 586,028.10 8,152,017.98 Wastewater 683 2,186,690.56 6,470.60 250.61 2,313.63 - (3,933.00) (2,063.02) 2,180,219.96 Wastewater 685 540,194.66 - 16,074.66 - - 8,000.00 16,074.66 540,194.66 Wastewater 689 232,546.33 3,212,226.49 294,686.75 54,710.31 - 6,770.00 239,976.44 (2,979,680.16) Refuse 690 - - - 1,042,518.50 - - (1,042,518.50) -
ISF 700 (4,243,802.83) 3,904,768.25 4,414,394.01 7,232,477.93 - (2,074,519.00) (2,818,083.92) (8,148,571.08) ISF 702 1,733,105.75 1,003,204.00 2,493,279.17 1,919,347.20 - 275,608.00 573,931.97 729,901.75 ISF 703 (532,091.74) 848,729.22 1,222,515.09 1,440,744.74 - (632,229.00) (218,229.65) (1,380,820.96) ISF 704 816,327.75 51,825.19 1,660,967.02 896,464.46 - (419,925.00) 764,502.56 764,502.56 ISF 705 (518,848.34) 89,163.31 1,554,084.24 2,162,095.89 - (23,906.00) (608,011.65) (608,011.65) ISF 761 880,005.95 2,196,286.16 2,852,002.07 2,364,770.26 - 158,947.00 487,231.81 (1,316,280.21) Successor Agency 805 1,903,029.06 - 2,455,366.00 2,421,960.12 - 162,706.00 33,405.88 1,903,029.06 Special Revenue 810 2,744,100.02 1,750,687.15 58,917.56 748,804.26 - (132,310.00) (689,886.70) 993,412.87 Successor Agency 830 1,613,204.12 23,922,797.17 2,171,886.00 944,943.63 - (86,247.00) 1,226,942.37 (22,309,593.05) Capital Projects 840 3,608,638.11 183,544.63 386.05 72,050.02 - (43,346.00) (71,663.97) 3,425,093.48 Capital Projects 841 545,659.53 - - 45.60 - (46.00) (45.60) 545,659.53 Successor Agency 850 (2,569,000.34) - 19,500.00 5,132.00 - (5,132.00) 14,368.00 (2,569,000.34) 1917

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Doug Schulze, City Manager
MEETING DATE: November 12, 2024
SUBJECT: Consider Animal Shelter Options
RECOMMENDATION:

Provide direction to City Manager.

BACKGROUND:

The City Council previously provided direction to the City Manager to negotiate a contract with Riverside Animal Control Services for a temporary agreement (approx. 1 year), which would utilize current City of Banning Animal Control Officers and use of the current shelter as a holding facility until animals are relinquished to County. As of September 27, 2024, Riverside County Animal Control Services has not provided a contract and has been unresponsive since July 22, 2024.

A proposal for a contract was submitted by Riverside County, but they did not agree to a temporary term or to use current City of Banning Animal Control Officers. The County also did not agree to use of the current shelter as a short-term holding facility. All animal sheltering services would be provided at the San Jacinto facility.

The City in-house proposal is based on establishing Animal Control & Shelter Services at the former fire station located at 5261 West Wilson Street. The apparatus bays are large enough to hold 45 - 60 kennels and floors have drainage for easy cleaning. The property is enclosed with a perimeter fence, adequate parking, a large lawn for exercise and a smaller area for potential adopters to interact with dogs. The building has numerous rooms that can be used for storage, small dog kennels, cattery, staff and a spay/neuter surgical room. In addition, the building has a full kitchen and restrooms.

JUSTIFICATION:

Animal shelter services are currently not available in Banning. Stray and lost dogs are increasingly running at-large.

FISCAL IMPACT:

Animal control and shelter services are General Fund expenses and the majority of costs will be funded with property and sales tax revenues. Some revenue is generated from user fees, such as, licensing, fines and penalties, and adoption fees.

Riverside County proposal is estimated to cost $680,000 annually. Difference from attached proposal is the addition of a second animal control officer.

City of Banning in-house proposal is estimated to cost $690,000 in year one, due to capital costs and $500,000 in year two. This cost estimate does not include a potential contribution from Morongo Band of 1918
Mission Indians for start-up costs, which has been discussed.

ALTERNATIVES:

Provide direction to City Manager.

BUDGETED?:

No
CONTRACT/AGREEMENT:

No
ATTACHMENTS:

1. City of Banning Proposal_7.10.24.docx

2. DRAFT In-House Animal Control Budget.xlsx
1919
1 SUMMARY OF PROPOSAL FOR FUTURE SERVICES

COUNTY OF RIVERSIDE

DEPARTMENT OF ANIMAL SERVICES
County of Riverside Department of Animal Services
6851 Van Buren Boulevard
Jurupa Valley, CA 92509
(951) 358-7442
1920
2 July 10, 2024
City of Banning
Attn: Doug Schulze, City Manager
99 E. Ramsey Street
Banning, CA 92220
Dear Doug Schulze,
The Department of Animal Services would like to collaborate on a proposal for services with the City of Banning to provide the best care possible for the animals and residents.

Please review the enclosed information about animal field and shelter services that the department will provide, along with optional additional services at the City’s request. Contract services rates are fees established by County of Riverside Ordinances 534 and 630 codified as Riverside County Code of Ordinances Title 6-Animals and subject to change as approved by the Board of Supervisors.

The Department has the experience and personnel to provide shelter and field services to the residents of the City of Banning and their animals, we would welcome the opportunity to serve you.

We would like to express our appreciation to you and your staff for considering the Riverside County Department of Animal Services. If you have any questions about the documents that you received, please give Harold Jones, Deputy Director - Administration, a call at (951) 358-7442 or email: [email protected].

Sincerely,
Erin Gettis, Director
Riverside County Department of Animal Services
1921
3 Proposal: City of Banning– Itemization of Projected Contract Costs for Animal Field and Shelter Services at the San Jacinto Valley Animal Campus, 581 S. Grand Avenue, San Jacinto, CA 92582 Field Services Outline:

Basic services for animal control officer field operations include the following:
 Respond to calls for assistance from the public/law enforcement/fire  Impoundment of stray animals
 Care and treatment of strays and/or abandoned animals  Animal bite investigations
 Animal cruelty investigations
 Rabies quarantine investigations
 Habitual stray and/or barking animal complaints
 Deceased animal pick up
 Return of impounded animals
 Dog licensing
 Kennel/cattery inspections and licensing
 Issuance of warnings/citations
 Public service and education
 Emergency planning and response
There are multiple benefits of utilizing the County’s Animal Control Officers (ACOs) for your city. All RCDAS animal control officers are certified by the State of California through Penal Code 832 and are authorized to issue citations, make arrests when necessary, and utilize animal capture equipment such as chemical capture tranquilizing rifles. ACOs are also certified through state and industry authorities such as the California State Humane Officers Academy and The National Animal Control Association. RCDAS field operations uses unincorporated ACOs to backup city officers. In situations such as an area “sweep,” or during a declared emergency response, RCDAS has the ability to pull additional officers from other areas in a very short time frame to target the specific needs of the city.

Under the licensure of the Chief Veterinarian by the California Veterinary Medical Board and the DEA, contracting for field services shall include training, any required documentation, supervision, and reconciliation of all controlled substances used by animal control officers in the field and elsewhere.

Field Services Cost:

Each full-time animal control officer (ACO) 2,080 hours is $286,790.40/FY, flat rate billed $23,899.20/month *Overtime/stand-by field services $178.66 per hour (minimum call out of 2 hours) Wildlife fee: $144.90 per call
Deceased fee: $73.50 per call
*Cost will fluctuate based on actual overtime usage.
1922
4 Shelter Services Outline:

Basic animal shelter services include the following:

Contracting with the County of Riverside for animal shelter services will include direct and indirect supervision of all veterinary medical activities in the shelters by the County’s Chief Veterinarian. This shall include the acquisition and maintenance of a DEA license, and a premise permit to be issued by the California Veterinary Medical Board.

All animals impounded into the San Jacinto Valley Animal Campus Shelter will receive immediate prompt and necessary veterinary care and husbandry by our highly trained staff in accordance with state law and the veterinary medical board guidelines. In addition to re-homing activities, the department provides full-service adoptions and coordinates pet rescue efforts.

Animal Sheltering at San Jacinto Valley Animal Campus Costs:

Animal sheltering costs at San Jacinto Valley Animal Campus are based on actual impounds. County shall provide the City with a monthly invoice that includes actual impound statistics. The invoice will detail the number of animals impounded and the total number of kenneling days, plus all other applicable fees. The daily sheltering rate is $35.81 per animal.

Operational and Maintenance (O&M) Costs:

O&M Costs is calculated based on actual monthly impounds multiplied by $10.96.

Large Animal Sheltering @ $21/animal (horses, ponies, cattle) per day of sheltering (additional cost billed on actual use)
Large Animal Sheltering @ $12.60/animal (swine, goats, sheep) per day of sheltering (additional cost billed on actual use)
County Issuing Dog Licenses for City:

At City’s request, County can issue dog licenses for the City. The City will authorize the County to collect and retain any and all canine license revenue generated by City residents during the program and term of the Agreement. County shall retain the sum of $11.92 for each dog license issued.

There will be a one-time data conversion fee based on actual cost to enter current City’s license data into the County’s licensing database at City’s expense.
1923
5 Field, Shelter and Licensing Services Estimate (Information based on the data that was provided) Service Quantity Cost Annually Monthly
Full Time Animal Control
Officer 1 $286,790.40 ea. $286,790.40 $23,899.20
Estimated Overtime* $178.66/hour $ $
Animal Sheltering 267 $35.81/day $95,612.70 $7,967.73
Wildlife Impounds** 3 $144.90 $434.70 $36.22
Deceased Animal Pick-Up
and Disposal** 166 $73.50 $12,201.00 $1,016.75
Operations and
Maintenance 267 $10.96/impound $2,926.32 $243.86
License Processing*** $11.92 per license $ $
Total Estimated Cost** $397,965.12/FY $33,163.76/mon
th
* Actual cost may vary based on on-call usage.
**Rates are subject to change as adopted by the Board of Supervisors. ***License processing cost may vary based on number of licenses sold. County shall retain $11.92 for each license sold, and remaining balance of license will be credited back to the City on a monthly basis.

Optional additional services at City’s request:

Daily flat rates for shot clinics and/or spay and neuter bus services will be billed based on actual outreach days scheduled. The projected compensation accounts for full staff time to provide service for one day. The maximum time possible will be afforded for actual outreach activity; however actual outreach activity time will be reduced by travel and preparation time the day of the event.

Shot Clinic and Spay and Neuter Bus Services:
$3,000 per event flat rate billed actual use
(The cost to provide three (3) clinic staff and one veterinarian for 9 hours, to be billed based on actual usage as requested by City.)
1924
ANIMAL SHELTER & CONTROL - City Operating & Managed
Operating Budget
Year 1 Year 2

REVENUE
License Fees $ 50,000 $ 50,000
Fines/Forfeits/Penalties $ 45,000 $ 45,000
Adoption Fees $ 24,000 $ 24,000
Donations/Contributions $ 25,000 $ 25,000
TOTAL REVENUE $ 144,000 $ 144,000

EXPENDITURES
Personnel
Shelter Staff (x2) $ 180,000 $ 180,000
Animal Control Officer (x2) $ 260,000 $ 260,000
Total Personnel $ 440,000 $ 440,000
Supplies
Office Supplies $ 6,400 $ 6,400
Shelter Supplies $ 8,040 $ 8,040
Fuel $ 15,600 $ 15,600
Pet Food $ 62,050 $ 62,050
Uniforms $ 1,200 $ 1,200
Total Supplies $ 93,290 $ 93,290
Services
Advertising/Publishing $ 4,000 $ 4,000
Printing $ 1,000 $ 1,000
Dues/Subscriptions $ 1,500 $ 1,500
Postage $ 500 $ 500
Travel & Training $ 2,500 $ 2,500
Building Maintenance $ 7,500 $ 7,500
Insurance $ 5,000 $ 5,000
Utilities $ 16,920 $ 16,920
Vehicle Lease $ 4,800 $ 4,800
Veterinary Services $ 50,000 $ 50,000
Total Services $ 93,720 $ 93,720
Capital Outlay
Office Furniture $ 5,000 $ 1,500
Computer Hardware $ 5,000 $ 500
Computer Software $ 2,500 $ 2,500
Animal Shelter Equipment $ 194,400 $ 10,000
Total Capital Outlay $ 206,900 $ 14,500
TOTAL EXPENDITURES $ 833,910 $ 641,510
SURPLUS/(DEFICIT) $ (689,910) $ (497,510) $690
1925
Salary Benefits Total
Animal Control Officer $ 100,000.00 $ 30,000.00 $ 130,000.00 Animal Control Officer $ 100,000.00 $ 30,000.00 $ 130,000.00 Shelter Manager $ 80,000.00 $ 25,000.00 $ 105,000.00
Shelter Assistant $ 60,000.00 $ 15,000.00 $ 75,000.00
Total $ 440,000.00
1926
Quantity Price Total
Paper 2 $ 45.00 $ 90.00
Pens 50 $ 1.00 $ 50.00
Notepads 50 $ 1.00 $ 50.00
Staplers 4 $ 15.00 $ 60.00
File Folders 100 $ 0.25 $ 25.00
Miscellaneous 1 $ 500.00 $ 500.00
Microchip Injector 300 $ 15.00 $ 4,500.00
Microchip Reader 2 $ 100.00 $ 200.00
Dog License Tags 2500 $ 0.25 $ 625.00
First Aid Kit 2 $ 150.00 $ 300.00
$ 6,400.00
1927
Quantity Price Total
Dog Food Bowls 60 $ 2.00 $ 120.00
Dog Water Bowls 60 $ 2.00 $ 120.00
Cat Food Bowls 50 $ 2.00 $ 100.00
Cat Water Bowls 50 $ 2.00 $ 100.00
Blankets 30 $ 20.00 $ 600.00
Pet Toys 300 $ 5.00 $ 1,500.00
Towels 100 $ 8.00 $ 800.00
Water Hoses 4 $ 75.00 $ 300.00
Scoops 6 $ 20.00 $ 120.00
Scrub Brushes 6 $ 15.00 $ 90.00
Leashes 30 $ 10.00 $ 300.00
Collars 100 $ 10.00 $ 1,000.00
Pet Shampoo 25 $ 10.00 $ 250.00
Pet Potty Pads 12000 $ 0.22 $ 2,640.00
$ 8,040.00
1928
ACO Truck 1 52 $ 150.00 $ 7,800.00
ACO Truck 2 52 $ 150.00 $ 7,800.00
Total $ 15,600.00
1929
Avg # Impound Daily Cost Annual Cost
Small Dogs 20 $ 2.00 $ 14,600.00
Large Dogs 30 $ 3.00 $ 32,850.00
Cats 40 $ 1.00 $ 14,600.00
$ 62,050.00
1930
Quantity Price Total
Water 12 $ 200.00 $ 2,400.00
Sewer 12 $ 30.00 $ 360.00
Electricity 12 $ 150.00 $ 1,800.00
Propane 12 $ 1,000.00 $ 12,000.00
Solid Waste 12 $ 30.00 $ 360.00
Total $ 16,920.00
1931
Quantity Price Total
Office Desk 3
Office Chair 3
Side Chair 3
File Cabinets 2
Lobby Chairs 5
Plants 6
Brochure Display 1
1932
Quantity Price Total
Desk PC 2
Printer 1
Monitor 2
1933
Microsoft License 2
Pet License 1
Shelter Management 1
1934
Quantity Price Total
Kitty Condo (6) 5 $ 2,600.00 $ 13,000.00
Small Dog Kennels 2 $ 2,700.00 $ 5,400.00
Dog Wash Station 1 $ 1,000.00 $ 1,000.00
Large Dog Kennels 40 $ 4,250.00 $ 170,000.00
Miscellaneous $ 5,000.00 $ 5,000.00
Total $ 194,400.00
1935

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Doug Schulze, City Manager
MEETING DATE: November 12, 2024
SUBJECT: Discuss Options for Use of Zoom During City Council Meetings RECOMMENDATION:

Provide direction to the City Manager regarding use of Zoom for City Council meetings.

BACKGROUND:

In response to social distancing requirements during COVID 19, use of Zoom for public meetings so members of the City Council, staff, and consultants could participate remotely. In addition, members of the public were also provided with the opportunity to participate via Zoom. After social distancing restrictions were lifted, use of Zoom was continued until "Zoom Bombing" became problematic for several organizations, including the City of Banning. Since the decision to use Zoom was an administrative decision and not Council policy, an administrative decision was made to discontinue use of Zoom for public participation. Use of Zoom is limited to consultants, City Treasurer and occasionally by staff participating remotely, which requires identity verification. When Zoom was offered as an option for members of the public to participate, there were just a few people online each meeting so, it was not used broadly.

Currently, staff resources are used to make all public meetings accessible on Government Access Channel 10 and streaming on the City website. These options do not allow members of the public to comment during meetings, but they are able to view meetings in real time. Members of the public are currently able to provide comments during the City Council’s meeting by either attending City Council meetings and making verbal comments to the City Council at the appropriate times or by submitting written comments to the City Clerk on items on the Council's agenda, which comments are forwarded to the City Council for the Council's consideration. While Zoom Bombing seems to be less of an issue, it could be related to the fact that many public agencies discontinued use of Zoom for public meetings. Use of Zoom as a webinar provides more control because access to speak must be granted by a monitor (staff member), which also reduces the likelihood of Zoom Bombing. However, a staff person would either need to be hired or paid overtime to serve as monitor during public meetings.

City Managers in Riverside County were asked if they use Zoom for public participation in City Council meetings. In total, 16 cities did not allow remote participation, 3 cities did, and 3 did not respond to the poll. These were the exact responses:

Beaumont - No
Calimesa - No
Cathedral City - No
Coachella - Yes
Corona - No
Desert Hot Springs - No
1936
Eastvale - No
Hemet - No
Indian Wells - Did not respond
Indio - No
LaQuinta - Did not respond
Menifee - No
Moreno Valley - No
Palm Desert - Yes
Palm Springs - Yes
Perris - No
Rancho Mirage - No
Riverside - Did not respond
San Jacinto - No
Temecula - No
Wildomar - No
Yucaipa - No
JUSTIFICATION:

Allowing members of the public to provide comments during City Council meetings via Zoom would allow for an additional form of public participation and engagement during City Council meetings.

FISCAL IMPACT:

Should the Council provide direction to offer the ability to make public comments via Zoom during City Council meetings, an additional staff member would be needed to monitor and promote individuals to presenter status when members of the public request to speak.

ALTERNATIVES:

Option 1 - Offer Zoom as an additional form or public participation during City Council meetings.

Option 2 - Do not offer Zoom as an additional for public participation during City Council meetings.

BUDGETED?:

No
CONTRACT/AGREEMENT:

No
1937
-1-
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
1938 474
-2-
11303-0008\2344655v8.doc
standards” shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances.

1.2 Contract Documents and Exhibits.

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
-3-
11303-0008\2344655v8.doc
documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Services by City, except such losses or damages as may be caused by City’s own negligence.

1.7 Further Responsibilities of Parties.

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.

DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1952 488
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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]
DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1954 490
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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.

DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1955 491
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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]
DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1957 493
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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
11303-0008\2344655v8.doc
III. In addition to the requirements of Parts I and II of this Scope of Services, during the performance of the Services, 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
11303-0008\2344655v8.doc
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
11303-0008\2344655v8.doc

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
11303-0008\2344655v8.doc

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
11303-0008\2344655v8.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
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
11303-0008\2344655v8.doc
EXHIBIT “C-1”
CONSULTANT’S BILLING RATE AND TASK SCHEDULE
DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1966 502
Exhibit “D-1”- 1
11303-0008\2344655v8.doc
EXHIBIT “D”

SCHEDULE OF PERFORMANCE
I. Consultant shall perform all Services timely, and deliver the specified tangible work products to City in accordance with the schedule attached as Exhibit D-1.

II. The Contract Officer may approve extensions for performance of the Services in accordance with Sections 1.8 and 3.3.

DocuSign Envelope ID: E6264B10-E087-4FFF-8F92-072B9A991A55 1967 503