Agenda packet — Banning City Council, December 10, 2024 (part 3 of 8)

670
PROJECT:

SUBJECT:

APPLICANT:

City of Banning
Community Development Department
Conditions of Approval
Tentative Tract Map 37388
Conditions of Approval (City Council Resolution 2023-04) Tri Pointe Homes
LOCATION: North of Meadowline Way, east of Highland Springs Avenue, and west of Highland Home Road/Meridian Avenue. APNs: 408-570-001 and 002, 408-570-005 through 008, 408-570-018 and 019, and portions of 408-570-003 and 004, 408-570-023 and 408-570- 046.

EXHIBIT B
To City Council Resolution 2023-04
All fair share agreements, covenant agreements and agreements subject to recordation will be subject to review and approval by the City Attorney and will include appropriate enforcement provisions by the City and be properly securitized.

Community Development Department

1. The City and Developer are parties to a Development Agreement, recorded on July 17, 2012, as document number 2012-0332888 ("DA"). In the event of any direct inconsistency or conflict between these Conditions of Approval and the DA, the DA shall control. The Developer shall indemnify the City as described in the DA.

2. Approval of this entitlement shall not waive compliance with any sections of the DA, Butterfield Specific Plan, or other applicable City Ordinances in effect at the time of building permit issuance to the extent such City Ordinances are applicable to the project and not vested under the DA.

3. Approval of Tentative Tract Map 37388 shall run with the term of the DA. All conditions of approval must be met on or before the expiration date orthe applicant must request an extension of time at least thirty ( 30) days prior to the expiration date, and receive approval of said extension; otherwise, the approval shall expire and become null and void.

4. Unless approved otherwise by City, the developer shall comply with all applicable conditions of City Council Ordinance No. 1450 approving the Butterfield Specific Plan and conditions of City Council Resolution No. 2017-07 approving Minor Modifications to the Butterfield Specific Plan.

5. All mitigation measures required by the Butterfield Specific Plan Environmental Impact Report Mitigation Monitoring and Reporting Program ( MMRP), as modified pursuant to the approved Addendum, and conditions of the project's Settlement Agreement shall be implemented if those 99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 671
measures/ conditions relate to this phase or part of the development or are required to be satisfied in connection with this phase or part of the development.

6. A copy of the signed resolution of approval and all conditions of approval and any applicable mitigation measures shall be reproduced in legible form on the grading plans submitted for review and approval as required by the reviewing department.

7. The Developer shall pay all applicable development impact fees and other fees as required under the DA. Adjustments and/or fee credits to the applicable DIFs may be provided as allowed in the DA and any applicable implementing DIF credit agreement. The project proponent shall provide written evidence to the City that school mitigation fees have been paid or other arrangements acceptable to the applicable school district and Developer have been met.

8. Deposits shall be handled per the executed Deposit Agreement dated May 7, 2019.

9. A copy of the final grading and erosion control plan, approved by Engineering, shall be submitted to the Planning Department for review and approval of the landscaping plans when graded cut slopes exceed five (5) feet in height and fill slopes exceed five (5) feet in height.

10. Per DA Exhibit E, Section 5.2, the Developer shall stabilize according to the City Grading and Landscaping Ordinance [ as it may be vested under the DA] the rear slope of all residential lots prior to issuance of a certificate of occupancy but shall not be required to landscape and/or irrigate the slopes. It is the intention that the rear yard landscaping will be required and installed within the time specified in the CC&Rs by the homeowner.

11. Per DA Section 6.5.2, Phasing Plans specifying when the lots within Tract 37388 will be developed and when all appropriate public infrastructure within Tract 37388 will be constructed shall be approved prior to commencement of development within the tract. Prior to approval of the Final Map, all conditions requiring the provision or proposed project facilities and subdivision improvements for the area covered by the Tentative Map must be satisfied either through performance or through the provision of suitable security prior to recordation of the Final Map or deferred with City approval under the terms of the DA.

12. Prior to precise grading plan approval, a conceptual ( non-structural) project wall/fencing plan to include retaining walls, perimeter walls, and interior walls shall be developed and shall be subject to design review approval by the Planning Department.

13. Prior to precise grading plan approval for PA 358, a Design Review application for Open Space 358 shall be reviewed and approved by the Planning Commission. The Design Review application for PA 358 shall include conceptual details on recreational uses to be provided within PA 358, including how these facilities will be linkable to other tracts, parks and open space including public access.

14. Prior to construction of the six proposed parks, the Developer shall obtain approval of a detailed site plan demonstrating the facilities to be provided from the Director of Community Development.

15. All res@eiitiar ana commerrcial neighborhoods and public facilities shall require Design Review approval by the Planning Director.
99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • { 951) 922- 3100 672

16. Temporary construction fencing shall be installed around portions of the tract under construction until replacement by permanent walls/fencing or completion of improvements.

17. Developer shall meet all legal requirements of responsible agencies.

Engineering/Public Works: The Department of Public Works provides the Conditions of Approval listed herein for the above-mentioned project. Unless otherwise stated, all conditions shall be completed by the applicant at no cost to any government agency. The Applicant may contact the Engineering Division at (951) 922-3130 for compliance with the following conditions.

GENERAL CONDITIONS

18. The subject property shall substantially conform to the approved tentative map and specific plan.

The City Engineer may approve minor design modifications to the project plans during the plan check process if such modifications conform to the provisions of the Banning Municipal Code.

Substantial changes shall not be permitted except upon application for, and approval of modification of this entitlement in compliance with all applicable procedures and requirements.

19. Revisions to the approved Tentative Map during Final Map plan check process including, but not limited to, lot line alignments, easements, improvement plan revisions, and similar minor changes that are in substantial compliance with the Tentative Map, or associated Conditions of Approval, shall be administratively approved through the plan check process with the mutual consent and approval of the Developer, the Community Development Director, and the City Engineer. Changes that are not administratively approved, through the process referenced above and herein shall be amended in accordance. with the Subdivision Map Act, as amended and codified within the Banning Municipal Code (BMC).

20.AII Ordinances, Policy Resolutions, and Standards of the City in effect at the time this project is approved shall be complied with as a condition of this approval.

21.AII applicable mitigation measures specified in the approved Environmental Impact Report (EIR) and the approved Traffic Impact Analysis (TIA) shall be incorporated as conditions of approval for this project and shall be addressed to the satisfaction of the Public Works Director and City Engineer.

22. The applicant shall comply with the approved site plan, the preliminary grading plan, the preliminary WQMP ( pWQMP), and other relevant documents approved during project entitlement. Any significant omission to the representation of the site conditions may require the plans to be resubmitted for further review and revision.

23.A Public Works Permit shall be required prior to commencement of any work within the public right-of-way. The contractor working within the public right-of-way shall submit proof of a Class A" State Contractor's License, City of Banning Business License, and Liability Insurance.

24. Prior to the issuance of any grading, construction, or public works permit by the City, the Applicant shall obtain any necessary clearances and/or permits from the following agencies.

Permits will not be unreasonably withheld if the developer has met all typical standards for a permit and satisfied all relevant conditions of approval for the appropriate permit:

City of Banning Fire Marshall
City of Banning Community Development Department
City ofBanning Public Works Department
City of Banning Water/Wastewater Department
99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 673
City of Banning Electric Department
Riverside County Flood Control and Water Conservation District California Regional Water Quality Control Board Colorado River Basin Army Corps of Engineers
California Department of Fish and Wildlife
South Coast Air Quality Management District
The applicant is responsible for meeting all requirements of permits and/or clearances from the agencies from the non-inclusive list above. When the requirements include approval of approved plans, the applicant shall furnish such proof of approvals when submitting improvement plans to the City. The applicant shall comply with all conditions and mitigation measures and submit copies of all correspondence with the agencies to the Engineering Division.

25.AII required plans and studies shall be prepared by a Registered Professional Engineer, Registered Professional Geologist. Registered Professional Landscape Architect or Registered Professional Surveyor in the State of California and submitted to the Public Works Department for review and approval.

26. The design of public infrastructure elements shall conform to the requirements of these Conditions of Approval, City General Plan, City/Regional Master Plans, City of Banning Grading Manual, City of Banning codes/standards, Standard Specifications for Public Works Construction ( current edition), and Caltrans Standards and Specifications at no cost to any governmental agency unless otherwise agreed upon by the affected parties.

27. The design of private grading and improvements outside of public right of way shall comply with the City of Banning Grading Manual, Title 18 of the City of Banning Municipal Code, California Building Code, State Water Resources Control Board orders, rules, and regulations, and City of Banning standards and practices.

28. The following is a list of items that are required by the Public Works Department. Unless otherwise authorized in writing by the City Engineer, plans shall utilize the minimum scale specified and shall be drawn on 24"x36" Mylar film. Plans should be drawn at a larger scale if additional detail and/or clarity is desired ( Note: The applicant may be required to prepare other improvement plans not listed here pursuant to improvement required by other agencies and utility purveyors):

Plans
Clearing Plan 1 "=40' Horizontal
Includes Fuel Modification and Construction Fencing)
Rough Grading Plan 1 "=40' Horizontal
Retaining Wall Plan 1 "=40' Horizontal
For wall proposed on RGP)
Haul Route Plan 1"=100' Horizontal
If soil is exported offsite)
Erosion and Sediment Control Plan 1"=100' Horizontal
These 5 plan sets shall be combined and reviewed concurrently as a stand- alone plan set Borrow Site/Stockpile Plan
If necessary)
1 "=40' Horizontal
Street Improvement Plans 1 "=40 Horiz./1 "=4' Vert.
99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 674
Includes Curb Ramp Details)
Traffic Signing and Striping Plan 1 "=40 Horizontal
Traffic Signal Plan 1 "=1 O' Horizontal
Traffic Control Plan 1 "=40' Horizontal
For street classifications of Secondary Highway and greater) Landscape Improvement Plan 1 "=40' Horizontal
Improvements within R/lN, BMP identified in WQMP)
Storm Drain Plan ( City Maintained)
Storm Drain Plan (City Maintained)
Potable Water Plan
Non-Potable Water Plan
Sewer Plan
Precise Grading Plan
1 "=40 Horiz./1 "=4' Vert.

Per RCFCD Standards
1 "=40 Horiz./1 "=4' Vert.
1 "=40 Horiz./1 "=4' Vert.
1 "=40 Horiz./1 "=4' Vert.
1 "=20' Horizontal
Other engineered improvement plans prepared for City approval that are not listed herein shall be prepared in formats approved by the City Engineer prior to commencing plan preparation.

All off-site plan and profile, street improvement plans, and signing and striping plans shall show all existing improvements for a minimum distance of 200 feet beyond the project limits, and to a distance sufficient to show any required design transitions.

An index map shall be provided on the title sheet of all plan sets showing the overall view of the entire work area.

All plans shall be complete, to the satisfaction of the City Engineer, prior to final map recordation and determination of surety estimates.

Reports and Studies
Final Hydrologic and Hydraulic Report
Final Water Quality Management Plan

CLOMR/LOMR
Traffic Impact Verification
Water Supply Verification
Geotechnical Report
Fault Hazard Report
Liquefaction Hazard Report
Dust Control and Prevention Plan
Engineers Cost Estimates
Compaction Report
Grading and Pad Certifications
Permits and Agreements
Permission to Grade and Construction Agreements ( if applicable) City Grading Permit
City Encroachment/Public Works Permit
WQMP Covenant and Agreement
99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 675
Non-Interference Letters
Performance Bonds
Labor and Material Bond
Maintenance Bond
Survey Documents
Final Map
Easement Dedications
Corner Records
Record of Survey

29. If a CFO is considered for this tract, prior to first COO, the applicant shall either demonstrate that the CFO has already been created or that a CFO application has been submitted and accepted as complete by the City of Banning Financial Services Division and shall include all maps, related Engineers report, and the required information ( CFO boundary maintenance areas by location and type, etc.) to the satisfaction of the City Engineer.

30.A Homeowners' Association ( HOA) or other mechanism as approved by the City Engineer, shall be responsible for the maintenance of the public parkways and median island landscaping, slopes adjacent to public rights-of-way, debris basins, detention and retention basins, public parks, linear parks and trails along the creeks, open space areas, BMP's referenced in the approved WQMP, and other items as required by the City Engineer. The maintenance mechanism shall be established prior to the first COO. In the event that the Applicant creates a Homeowners' Association ( HOA), the Covenants, Conditions, and Restrictions ( CC&Rs) and Articles of Incorporation of the Homeowners' Association are subject to the approval of the Planning and Engineering Divisions and the City Attorney. A recorded copy shall be provided to the City Engineer. The Homeowners' Association shall submit to the Planning Division a list of the name and address of their officers on or before January 1 of each and every year and whenever said information changes.

31. The conditions, covenants and restrictions shall contain provisions which prohibit dissolution of the Homeowners' Association unless another entity has agreed to assume the operation and maintenance responsibilities of the Homeowners' Association. The conditions, covenants and restrictions shall contain provisions that prohibit the Applicant and his/her successors- in-interest from amending said covenants, conditions and restrictions to conflict with these conditions of approval unless the subject property is reverted to acreage and the subdivision abandoned.

32. The conditions, covenants and restrictions shall include provisions for the City of Banning to maintain landscaping of the public parkways and median island landscaping, slopes adjacent to public rights-of-way, debris basins, detention and retention basins, public parks, linear parks and trails along the creeks, open space areas, BMP's referenced in the approved WQMP, and other items as required by the City Engineer, in the event that the Homeowners Association fails to meet this obligation. The Applicant shall enter into an agreement that allows for the City of Banning to charge the Homeowners Association for the maintenance cost incurred in this condition.

33. The applicant is responsible for resolving any conflicts with existing or proposed easements. All easement( s) of record and proposed easements shall be shown on the final map, grading plan, and improvement plans where applicable.

34. Wheresurveymonuments exist, such monuments- shall-be protected or shall be referenced- and reset, pursuant to the Business and Professions Code, Sections 8700 to 8805 ( Land Surveyors Act)
99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 676

35.AII future utility systems including gas, electric, telephone, water, sewer, and cable TV, except for temporary utility systems as defined under the DA, shall be provided for underground, with easements provided as required, and designed and constructed in accordance with City codes and the utility provider. Telephone, cable TV, and/or security systems shall be pre-wired.

36.Any existing public improvements that are damaged during construction shall be removed and replaced as determined by the City Engineer or his/her representative.

37. Prior to the release of surety and upon completion of construction, the Applicant shall furnish the City with reproducible record drawings on Mylar film of all improvement plans that were approved by the City Engineer. Each sheet shall be clearly marked " As-Built" or "As-Constructed" and shall be stamped and signed by the engineer or surveyor certifying the accuracy and completeness of the drawings. The applicant shall have all AutoCAD files submitted to the City, revised to reflect the "As-Built" conditions.

MAPPING AND SURVEY

38. The submittal, approval, and recordation of the final map shall be in accordance with the provisions of the State Subdivision Map Act and Title 16, Subdivisions, of the Banning Municipal Code.

39. The final map shall have adequate reservations for public ingress and egress as well as public and/or private utility easements and abandonment of existing utility easements to the satisfaction of the City Engineer. The applicant shall be responsible for contacting all utility providers to establish appropriate easements required to provide services to each development area.

40. In the event that the applicant in unsuccessful in acquiring necessary property rights outside the project/ development, the City will consider and potentially act on the option to acquire through eminent domain. Permits ( or portions of permits) that are not affected by ROW acquisition will not be held up during the property acquisition or eminent domain process. 41 . During the improvement plan checking process, turning radius template checks shall be submitted for access to all storm drain facilities, open space, and other utility easements that are accessed from a publicly accessible paved street. These templates shall clearly show that the easements are sufficient for full access under emergency conditions. The City of Banning' s review of the easements shall include appropriateness of the vehicle turning radius, easement slopes and easement widths. Additional easement widths shall be required when the design vehicle is likely to use outriggers or other means of load stabilization.

42. Any public right-of-way or streets to be vacated from public use, pursuant to Street and Highway Codes Sections 8300 through 8363, shall conform to the complete vacation procedure and show specific circulation alternative, where required. All street vacations shall be shown on the final tract map.

43.AII public facilities including sewer, water, reclaimed water and drainage shall be located in a public right of way or public utility easement. All final maps shall include appropriate easements per the approved tentative map and as required by the City Engineer and/or RCFC&WCD. All easements shall meet minimum width and access requirements as mandated by the City or governing agency.

44. Submit a copy of the title report, closure calculations, and any separate instruments or necessary right-of-way documents to the Engineering Division prior to final map approval.

45. A map of the proposed subdivision drawn at-11'=200' showing the outline of the streets .including street names shall be submitted to the City to update the city atlas map. 99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 677

46. The Applicant shall be responsible for research on private utility lines ( Gas, Edison, Telephone, Cable, Internet, etc.) to ensure there are no conflicts with site development. All existing on- site utility lines that conflict with this project shall be relocated, removed, or sealed to the satisfaction of the City Engineer.

Prior to Issuance of a Grading Permit, Public Works Permit, or Construction Permit

47. The applicant, at its sole expense, shall obtain all right of way or easement acquisitions necessary to implement any portion of condition of this project, including public improvements, off- site grading and construction, offsite street requirements, offsite public utility requirements, storm drain improvements, or any other requirement of these conditions.

48. The applicant shall provide an easement over, across, and which provides ingress and egress to all private water quality, stormwater, drainage basins, public water facilities, public sewer facilities, public electric facilities, and fire department access to be dedicated to the City, for ingress, egress, and right to inspect, repair, remove, and replace unless otherwise directed by the City Engineer.

49. The applicant shall offer for dedication on the Final Map, within Final Map boundaries, all public street right- of- way and public utility easements in conformance with project entitlement documents, including this tentative tract map, Butterfield Specific Plan, and associated Development Agreements. The City may reject the dedications and leave them open for future acceptance when all required public street improvements for the map are installed by the applicant in the rights of way.

50. The applicant shall offer to dedicate to the City of Banning additional Right of Way as described below:

HIGHLAND HOME ROAD ( modified) ( 32 Foot Additional R/W) fronting the site as a MODIFIED MAJOR HIGHWAY for public street and utility purposes. Dedication shall include for a 1O' Landscape Lot adjacent to the ultimate west R/W. Dedication shall include a 3' PUE within the Landscape Lot adjacent to the west R/W.

MEADOWLINE WAY ( 46 Foot Half Width) fronting the site as a MODIFIED COLLECTOR for public street and utility purposes. Road was dedicated with FM 37389- 1. This map shall dedicate a 3' PUE adjacent to the northern right of way to the City of Banning. This map shall dedicate a 5' trail easement adjacent to the northern right of way to the City of Banning.

STREET D, E, R, W ( 70 Foot R/ W)- NEIGHBIRHOOD ENTRY as depicted on TTM 37388. This map shall dedicate a 3' PUE adjacent to the proposed ultimate right of way on both sides of the street to the City of Banning.

STREET A, B, C, D, F, G, H, I, J, K, L, M, N, 0 P, Q, S, T, U, V, X, Y, Z, AA, BB ( 56 Foot R/W) as a MODIFIED LOCAL RESIDENTIAL STREET for public street and utility purposes. This map shall dedicate a 3' PUE adjacent to the proposed ultimate right of way on both sides of the street to the City of Banning.

PA 15A DRIVE A ( PRIVATE) - This map shall dedicate public utility easements over the entire roadway to the City of Banning. This map shall further dedicate a 4.5' PUE ( s'ly) and 3' PUE n'ly) adjacent to the roadway lot to the City of Banning.

PA 15A DRIVE B, C, D, E, F, G, H, I, J, K, L, M, N, 0, P, Q ( PRIVATE)- This map shall dedicate public utility easements over the entire roadway to the City of Banning. This map shall further dedicate a 3' PUE( s' ly) and 3' PUE ( n'ly) adjacent to the roadway lot to the City of Banning. 99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 678
This map shall dedicate all other rights of way and easements as shown on the approved TTM exhibit.

This map shall dedicate public utility and emergency access easement over the PA158 Access Road to the City of Banning at a minimum width of 28 feet.

All offers of dedication shall include the corner cut- back at all intersections.

51. Legal descriptions and plans of street dedication shall be provided to the Engineering Division for review and approval before acceptance by the City Council and recorded by the County of Riverside.

52. The TTM indicates that phased final maps will be processed. If the maps are to be processed individually, then each map shall make allowances to provide required points of access for utility and emergency access to the satisfaction of the City Engineer, City Fire Marshall, and the City Community Development Director.

Prior to Map Recordation

53. The Applicant shall dedicate right- of-way or provide temporary easements beyond either the phased construction and/ or tract boundary required to provide utility service, public and/ or emergency vehicular ingress and egress access to the nearest paved and publicly maintained street to the satisfaction of the City Engineer, City Fire Marshall, and the City Community Development Director.

54. Applicant shall construct on- site and off- site improvements required for the development of the property in accordance with the approved plans and satisfy its obligations for same, or shall furnish secured and executed Subdivision Improvement Agreements on terms agreed to by the parties guaranteeing the construction of such improvements and the and the satisfaction of its obligations for same, or shall agree to any combination thereof, unless such improvements are deferred with City approval under the terms of the DA or as otherwise set forth under the terms of the DA. For off- site improvements, the procedures and requirements of Government Code Section 66462. 5 shall apply, including the potential acquisition of those rights by the City or waiver of the City' s requirement to obtain those rights.

55. Security for the construction of public improvements in accordance with Government Code Section 66499 shall be as follows:

Faithful Performance Bond
Labor and Material Bond
100% of estimated cost
100% of estimated cost
Monumentation Bond In the amount as supplied by the Record Engineer/ Land Surveyor and as approved by the City
Engineer
Securities for the public improvements shall be on file with the City Clerk prior to scheduling the final map for approval by City Council. Unit prices for bonding estimates shall be those specified or approved by the City Engineer.

56. The applicant shall submit a list of street names and addresses in Microsoft Excel spread sheet format for review and approval. The house number system shall be in accordance with Section

12. 32 of the Banning Municipal Code. A reduced copy of the subdivision map shall be included with the submittal. Approval of street names shall be completed prior to the final submittal of the final map.
99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 679

57. Prior to the recordation of Final Map or the issuance of the first grading permit (whichever occurs first), the applicant shall obtain approval from the Fire Marshall in consultation with the City Engineer, for an access plan to provide the site two (2) points of emergency access should final maps be phased.

Prior to the Issuance of a Certificate of Occupancy

58. The applicant shall not grant any easements over any property subject to a requirement of dedication or irrevocable offer of dedication to the City of Banning or the Riverside County Flood Control and Water Conservation District unless such easements are expressly made subordinate to the easements to be offered for dedication to the City or RCFCD or unless such easements do not conflict with the City's or RCFCD' s intended purposes or uses. Prior to granting any of said easements, the applicant shall furnish a copy of the proposed easement to the City Engineer for review and approval. Further, a copy of the approved easement shall be furnished to the City Engineer prior to the issuance of any certificate of use and/or occupancy.

Prior to the Release of Surety

59. Public improvements shall be completed and accepted by City of Banning prior to release of Faithful Performance Bond and Labor and Material Bond for such improvements. Faithful Performance Bond for applicable public improvements shall be reduced to 10% once City accepts improvements into maintenance period. Final 10% to serve as the maintenance bond for the 1-year maintenance period.

60.The Applicant shall comply with Assembly Bill 1414, which was enacted on January 1, 1995, and amended Section 8771 of the Business and Professions Code of the Land Surveyors Act.

Assembly Bill 1414 requires that two (2) corner records be filed when:

Monuments exist that control the location of subdivisions or tracts, streets or highways; or provides survey control. The monuments are located and referenced by a licensed Land Surveyor before any streets or highways are reconstructed or relocated. The corner record(s) of the references are filed with the County Surveyor.

Monuments are reset in the surface of the new construction and a corner record is filed with the County Surveyor before recording of a Certificate of Completion for the project.

61. Permanent survey monuments shall be set at the intersection of street centerlines, beginning, and end of curves in centerlines, and at other locations designated by the Director of Public Works and City Engineer. All other centerline monuments shall be placed in accordance with standard survey practice. A complete set of street centerline ties shall be submitted to the Engineering Division upon completion of improvements or prior to release of the monumentation bond.

62.A record of all street centerline monument ties shall be submitted to the Engineering Division upon completion of improvements or prior to the release of the Monumentation Bond.

STREETS AND TRAFFIC

63.A minimum of 36' of asphalt pavement are required for all new roadways. For LOCAL, COLLECTOR, DIVIDED COLLECTOR, and SECONDARY HIGHWAYS, applicant shall provide additional pavement opposite the street centerline of the project to meet the 36' pavement requirement.

64.A minimum width of 20 feet for a paved or all-weather emergency access. If requirements for other departments differ, the greater roadway width is required; 99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 680

65.AII street designs shall provide pavement and lane transitions per City of Banning and Caltrans standards for transitions to existing street sections.

66. The following street improvements are required per the Butterfield Specific Plan, Development Agreement, and Tentative Map 37388.

HIGHLAND HOME ROAD: Construct partial width street improvements for MODIFIED MAJOR HIGHWAY roadway per Butterfield Specific Plan, ( 38' AC Pavement, 40' offset to C&G, 8' shoulder) including the following: Curb and Gutter, AC Pavement, Driveways, Street Lighting, Sidewalk, Parkway Landscaping, Traffic Signs, Roadway Striping.

D, E, R, W STREETS: Construct full width street improvements for MODIFIED LOCAL roadway per the Butterfield Specific Plan and TIM 37388 including the following: Curb and Gutter, AC Pavement, Landscaped Median ( where driveways do not exist), Driveways, Street Lighting, Sidewalk, Parkway Landscaping, Traffic Signs, Roadway Striping.

A, B, C, D, F, G, H, I, J, K ,L, M, N, 0 P, Q, S, T, U, V, X, Y, Z, AA, BB STREET: Construct full width street improvements for MODIFIED LOCAL roadway per the Butterfield Specific Plan and TTM 37388 including the following: Curb and Gutter, AC Pavement, Driveways, Street Lighting, Sidewalk, Parkway Landscaping, Traffic Signs, Roadway Striping.

PRIVATE DRIVES: Construct full width street improvements for PRIVATE DRIVES roadway per the Butterfield Specific Plan and TTM 37388 including the following: Curb, Curb and Gutter, AC Pavement, Driveways. Parking shall be prohibited Private Drives, as indicated on the tentative map.

67. Grading and excavations in the public right-of-way shall be supplemented with a soils and geology report prepared by a professional engineer or geologist licensed by the State of California.

68.Applicant's geotechnical engineer shall provide the design of the pavement section and field measured " R-Values" based upon the Caltrans Method. The minimum pavement section shall be consistent with published City standards at the time of construction.

69. Street pavement design shall take into account the subgrade soil strength, the projected traffic loading, and have a design life of 20 years.

70. In accordance with the California Building Code, Title 24, and the requirements of the Americans with Disabilities Act ( ADA), facilities for disabled persons shall be constructed in locations specified by the City Engineer (i.e., accessible paths of travel, curb ramps, etc.).

71. Parking areas shall be designed and improved with grades not to exceed five percent slope. All applicable ADA standards will be adhered to.

72. The street improvement plans shall include details for all ADA ramps, indicating elevations and grades in accordance with City of Banning standard drawings.

73.AII streets shall have a maximum grade of 15 percent. Wherever feasible street grades should be kept to 12 percent or less.

74.Access drives to the public right-of-way shall be restricted to those approved by the City Engineer as shown on the approved plans.

75. Residential driveway grades shall not exceed twelve percent unless approved by the City Engineer.

76. Mitigation measure TRF-2 requires a Traffic Impact Analysis ( TIA) Validation Report to be submitted to the City Engineer for review for each map phase. 99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 681

77. Traffic improvements shall adhere to Traffic Verification Letter for Atwell Phase 28. Per the letter approved on 3/24/22, traffic impacts are to be mitigated prior to the Phase 2A Buildout Scenario.

If this project is phased and constructed prior to the 2A buildout Scenario, the following items shall be completed prior the issuance of building permits within Phase 28. a. Installation of traffic signal at the intersection of Wilson Street and Highland Home Road b. Applicant shall revise the traffic sensitivity analysis for Phase 2A and 28 to reflect anticipated construction sequencing with regard to Wilson Street improvements at Smith Creek prior to the issuance of any building permit within Phase 2B. The recommendations in said report shall allow for the phased construction of a specified number of units in Phase 2A and 28 prior to the widening of Wilson Street at the Smith Creek. After unit threshold has been met, widening of Wilson Street at the Smith Creek will be required.

78. Signing and Striping Plans shall show the following at a minimum: stop signs, limit lines and legends, no parking signs, raised pavement markers ( including blue raised pavement markers at fire hydrants), and street name signs.

79. Street names signs and traffic control devices including traffic legends and traffic striping shall be installed or relocated in accordance with applicable City or Caltrans standards and as shown on the approval plans and/or as directed by the City Engineer.

80. Streetlights shall be installed in accordance with the City of Banning Electric Department Standards.

81.AII existing overhead utility lines located on or adjacent to the site shall be undergrounded prior to public improvement acceptance and surety release, to the satisfaction of the Public Works Director, including but not limited to, electrical distribution, telephone, and cable lines, with the exception of electric utility lines over 33 kV in accordance with Ordinance 1500.

82.Access to any phased construction site shall be restricted by a temporary installation of a chain link fence with locks to restrict public access but allowing emergency vehicle access per City acceptable arrangements as required by the City Engineer.

83.Applicant shall provide horizontal and vertical site distance calculations per Riverside County Transportation Department and Caltrans Standards for review and approval by the City Engineer. Safe horizontal traffic sight distances and vertical curve sight distances shall be maintained regardless of street intersection angles, street grades, landscaping, or the lot configuration shown on the approved tentative tract map, as follows:

All vertical curve sight line design shall be per the Caltrans Design Manual ( Figures 201- latest, Topic 405-latest, et al).

All horizontal curve sight line design shall be per Riverside County Standards ( Plates 114, 821, et al). Horizontal curve design speeds shall be noted on the plan sheets.

Horizontal and vertical sight distances shall be maintained even if such compliance results in reconfigured lots and/or a reduction in the lot count shown on the approved tentative map. All Butterfield Specific Plan requirements and City of Banning Ordinances shall be met while achieving the required safety requirements.

Prior to Recordation of a Final Map

84. The applicant shall provide estimates to construct, improve, or finance the proposed public improvements to the City Engineer for review and approval. The estimate shall differentiate between·· public··· improvements··· •within· the··property· boundaries · of the tentative map, improvements outside the project boundaries and public improvements which abut the boundary of the property to be subdivided.
99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 682

85. Prior to map recordation for any subsequent development phases, detailed phasing plans shall be submitted for review and approval by the Public Works Director, Community Development Director and City Engineer. Each phasing plan shall identify construction access, public access and emergency access routes.

Prior to Issuance of a Public Works Permit

86.A Traffic Control Plan based on the Work Area Traffic Control Handbook ( WATCH) shall be submitted, for review and approval by the City Engineer. The Traffic Control Plan shall be prepared by a California Registered Traffic Engineer or Civil Engineer experienced in this type of plan preparation. Traffic control shall be included as a line item in the Engineer's Estimate for bonding purposes. No construction for a particular improvement shall be allowed prior to the approval of this plan.

87.AII required public improvements for the project shall be completed, tested, and approved by City of Banning to the satisfaction of the City Engineer or their designee. The City will provide inspections in a timely manner and any inspections exceeding two (2) inspections will require a meeting with the City Engineer to address.

88.AII fire hydrants shall have a blue reflective pavement marker indicating the hydrant location on the street/access driveway as approved by the Fire Marshall and must be maintained in good condition by the property owner until the street is accepted for maintenance.

Prior to Release of Bonds/Surety

89.Applicant shall install all street name signs, striping, and related signage as shown on the approved plans to the satisfaction of the City Engineer and Public Works Director.

90.Applicant shall make pavement repairs necessary to mitigate the impacts of project construction traffic on affected City of Banning accepted streets within the Specific Plan. This condition does not apply to Highland Springs Avenue or Wilson Street, where due to the regional nature of these facilities, it would be impossible to validate the amount of pavement damage caused by ongoing construction activities.

LANDSCAPING

91. A homeowners' association shall be established and the applicable Conditions, Covenants & Restrictions ( CC & R's), shall be prepared for review and approval of the City Engineer at the time set forth in the DA providing for maintenance of the parkway on-site lighting and landscaping, slopes adjacent to public rights-of-way, onsite private parking/roadway, any debris basins, BMPs referenced in the approved WQMP, and median island landscaping. The developer shall appoint the initial members of the Board of Directors of the homeowners' association or take such other steps as may be reasonably necessary to assure that members have been appointed or elected to such Board of Directors, until under the terms ofthe applicable CC & R's individual lot owners have the power to elect the members of the Board of Directors in accordance with the CC & R's.

92. The conditions, covenants, and restrictions shall contain provisions which prohibit dissolution of the homeowners' association unless another entity has agreed to assume the operation and maintenance responsibilities of the homeowners' association. The conditions, covenants and restrictions shall contain provisions that prohibit the developer and his/her successors-in-interest from amending said covenants, conditions and restrictions to conflict with these Conditions of Approval.

93.Alternatively, to having an HOA provide maintenance of the parkway on-site lighting and landscaping, slopes adjacent to public rights-of-way, any debris basins, BMPs referenced in the 99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 683
approved WQMP, and median island landscaping, a Landscaping Maintenance District (LMD), or other public financing mechanism, can be formed to provide for the landscape maintenance.

94. Prior to laying of the aggregate base layer for any new streets, all landscaping irrigation services or sleeves to accommodate said services) shall be installed. Any street cuts in roadways less than 5 years old may require full width grind and overlay to the City Engineer's discretion.

95. The applicant shall plant and maintain trees, shrubs, and ground cover placed in the parkway, slopes adjacent to public rights-of-way, and median islands constructed in connection with the project in accordance with applicable City standards until maintenance of such area is turned over to the HOA or other public financing District. This includes ensuring that irrigation systems are operating properly, the clearing of debris, and regular weed removal.

96. The Applicant shall install landscaping using xeriscape principles. " Xeriscape" shall mean a combination of landscape features and techniques that in the aggregate reduce the demand for and consumption of water, including appropriate low water using plants, non-living groundcover, a low percentage of turf coverage ( limited to 25% of the planted area), and water conserving irrigation techniques and systems. A low water-using drought tolerant plant includes species suited to our climate, requiring less water in order to grow well.

97.An automatic sprinkler system and landscaping shall be installed, prior to certificate of occupancy for the portion of the project for which certificates of occupancy are requested, within the common areas including perimeter slopes and the interior collector streets. Each system shall include a smart landscape irrigation controller ( including remote communication), a separate water meter and electric meter, and plantings as approved by the Community Development Director. Landscaping plans and specifications shall be reviewed and approved by the City Engineer.

98. Landscape improvements shall be certified by a licensed landscape architect or licensed landscape contractor as having been installed in accordance with the approved detailed plans and specifications. The applicant shall furnish said certification, including an irrigation management report, for each landscape irrigation system and any other required implementation report determined applicable to the City Engineer for review and approval.

99. Landscape improvement plans shall incorporate the City's letter, dated May 11 2019, providing construction level recommendations to the landscape working drawings.

Prior to Map Recordation
100. Landscape and irrigation plans for all required facilities shall be submitted for approval.

The final design of the parkways, walls, landscaping, and sidewalks shall be included in the plans and shall be subject to approval by the Community Development Director and City Engineer.

GRADING AND DRAINAGE
101. The project grading shall be designed in a manner that perpetuates the existing natural drainage patterns with respect to tributary drainage areas, outlet points and outlet conditions.

Otherwise, a drainage easement shall be obtained for the release of concentrated or diverted storm flows. The project shall accept and convey storm flows from the adjacent property within the property boundaries, or within drainage devices and easements obtained by the applicant. 102. The applicantshallcomplywith Chapter 13.24 "StormwaterManagementSystems" ofthe Banning Municipal Code.
99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 684
103. The applicant shall comply with Title 18 of the Banning Municipal Code "Grading, Erosion, and Sediment Control", the City of Banning Grading Manual, California Building Code related to excavation and grading, and State Water Resources Control Board orders, rules, and regulations.
104. Grading work shall be balanced on-site, wherever possible. If export is required as a result of the final grading plan, then measures will be taken to be in compliance with the applicable City of Banning Ordinances at time of final grading plan approval. 105. Grading and excavations in the public right of way shall be supplemented with a soils and geology report prepared by a professional engineer or geologist licensed by the State of California.
106. Rough grading plans shall include retaining walls with top of wall and top of footing elevations shown. All footings shall meet minimum Building and Safety Department requirements and/or sufficient cover to clear any obstructions. The Applicant shall submit design calculations and obtain permits for all perimeter and retaining walls from the Building and Safety Department.
107. The applicant shall submit a Drainage Study with hydrologic and hydraulic analysis for developed and undeveloped ( existing) conditions to the Engineering Division for review and approval. The study and analysis shall be prepared by a civil engineer licensed by the State of California. Drainage design shall be in accordance with Banning Master Drainage Plan adopted by Riverside County Flood Control and Water Conservation District ( RCFCD), RCFCD Hydrology Manual, and standard plans and specifications. The 10-year storm flow shall be contained within the street curbs, and the 100-year storm shall be contained within the street right-of-way; when this criterion is exceeded, additional drainage facilities shall be designed and constructed.
108. The proposed drainage improvement plans shall be designed such that drainage facilities will maintain or reduce the 100-year peak runoff rates presently exiting all Project boundaries.

The project shall be designed to detain the 100 year/3 hour storm. Detention facilities shall have a maximum draw down time of 72 hours.
109. Applicant shall submit drainage improvement plans for the proposed subdivision with the accompanying hydrology and hydraulic analysis and shall be designed per the RCFC&WCD Hydrology Manual and the City of Banning flood control standards. Finalized studies shall verify the size of flood control facilities. Drainage facilities shall be in accordance with the approved tentative map and specific plan. Plans shall be submitted to RCFC&WCD and/or the City of Banning for review and approval for facilities that are to be owned and/or maintained by RCFC&WCD.
110. If the site is located in a Flood Area as identified in Flood Insurance Rate Map dated August 28, 2008, the applicant is responsible for providing a certification by a registered professional engineer or architect demonstrating that encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge. 111. The design of the development shall not cause any increase in flood boundaries, levels or frequencies in any area outside the development. Prior to issuance of any grading permits, FEMA may require a hydrologic and hydraulic analysis to be submitted and approved that demonstrates that the development will not cause any rise in base flood levels. 112. · Impacts to jurisdictional streams, ereeks- and draina{les shall be-reviewed- and approved by the appropriate regulatory agencies with jurisdiction in this area and will require the appropriate required permits issued.
99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 685
113. Prior to the issuance of any grading or building permit, the applicant shall install trash filters on newly constructed storm drain systems that are not tributary to any onsite water quality/ detention basin in compliance with the Trash Amendment as amended and approved in accordance with California Regional Water Quality Control Board Colorado River Basin Region Order No. R?-2013-0011.

Prior to Issuance of a Grading Permit
114. A grading permit shall be obtained from the Public Works Department prior to the commencement of any grading work.
115. Detailed grading plans shall be prepared and approved by the City prior to any on-site grading for the project.
116. Prepare an erosion control plan that provides the developed phases with the required flood protection. Flood protection shall be determined by the size of the undeveloped areas and the flow patterns.
117. Temporary basins shall be constructed to meet detention requirements and earthen channels/ berms shall be used to divert and convey flows during construction. 118. Within park areas or areas accessible to the public, detention/ retention basins will be protected from public entry as required.
119. The applicant shall submit a PM10 Management Plan for construction operations to the City Engineer and/or SCAQMD for review and approval.
120. The applicant shall submit a construction haul route plan to the City Engineer for review and approval if dirt will be imported/ exported from the project site. Deviation during construction from the approved plan shall constitute a violation of the conditions of the grading permit. 121. A soils report and geotechnical study shall be submitted in conjunction with the grading plan with further analyses of on-site soil conditions and appropriate measures to control erosion and dust. Any issues or recommendations provided in the report shall be addressed to the satisfaction of the City Engineer. The responsible geotechnical engineer shall sign and stamp all grading plans indicating the plan complies with the recommendations of the comprehensive soils and geotechnical report.
122. The applicant shall retain a qualified archeologist, paleontologist, and biologist for observation of grading and excavation activities in accordance with the approved mitigation program.
123. The applicant shall prepare a Final Water Quality Management Plan in accordance with the California Regional Water Quality Control Board Colorado River Basin Region Order No. R?- 2013-0011. The WQMP shall identify if the project meets the criteria of a Priority Development Project and identify project Site Design BMP's and Treatment Control BMP's as applicable. The WQMP shall be reviewed and approved by the City Engineer. 124. For construction activities including clearing, grading or excavation of land that disturbs one ( 1) acre or more of land, or that disturbs less than one ( 1) acre of land, but which is a part of a construction project that encompasses more than one ( 1) acre of land, the applicant shall be required to submit a Storm Water Pollution Protection Plan ( SWPPP) and file a Notice of Intent ( NOi) with the Regional Water Quality Control Board ( RWQCB). The applicant shall provide proof that the SWPPP has been approved by the RWQCB prior to issuance of any permits: The appffcanfshailensure fhaflhe required SWPPP is available for inspection at the project site at all times through and including acceptance of all improvements by the City. The 99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 686
applicant' s SWPPP shall include provisions for all of the following Best Management Practices BMPs"):

Temporary Soil Stabilization ( erosion control).

Temporary Sediment Control.

Wind Erosion Control.

Tracking Control.

Non-Storm Water Management.

Waste Management and Materials Pollution Control.

All erosion and sediment control BMPs proposed by the applicant shall be designed using the CASQA BMP handbook and approved by the City Engineer prior to any onsite or offsite grading, pursuant to this project. The approved SWPPP and BMPs shall remain in effect for the entire duration of project construction until all improvements are completed and accepted by the City.
125. Construction documents shall include language that requires all construction contractors to strictly control the staging of construction equipment and the cleanliness of construction equipment stored or driven beyond the limits of the construction work area. Construction equipment shall be parked and staged within the project site. Staging areas shall be screened from view from adjacent properties. Vehicles shall be kept clean and free of mud and dust before leaving the development site. Surrounding streets shall be swept daily and maintained free of dirt and debris.
126. The applicant shall execute a Stormwater Management Facilities Agreement on terms agreed to by the parties guaranteeing the maintenance of stormwater pollution controls. Said agreement shall be recorded with the Riverside County Recorder and run with the land. 127. If this project includes areas within a designated Federal Emergency Management Agency ( FEMA) National Flood Insurance Program ( NFIP) Special Flood Hazard Zone, a conditional letter of map revision ( CLOMR) shall be processed through FEMA and provided to the City Engineer.
128. Notation shall be placed on all applicable rough grading plan(s) that states " Compliance with Mitigation Measures BIO-1 and BIO-2 is required."
Prior to the Issuance of a Building Permit
129. A precise grading plan shall be submitted to the City Engineer for review and approval.

A grading permit shall be obtained prior to commencement of any grading activity. 130. The applicant shall provide a lot pad certification. The pad certification shall include an elevation and compaction certification. The elevation certification shall be stamped and signed by a licensed civil engineer or land surveyor and shall list the pad elevation as shown on the approved grading plan, the actual pad elevation and the difference between the two, if any. The compaction certification shall list the relative compaction of the pad soil and shall be certified by a licensed geotechnical engineer.

Prior to Recordation of a Final Map
131. A Grading Plan and Erosion Control Plan shall be submitted to the City Engineer for review and approval.
132. The applicantshall identify_ and include in its improvement plans those routine structural and non-structural Best Management Practices ( BMP's) as outlined in Supplement A to the Riverside County Drainage Area Management Plans and any attachments or revisions. 99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • { 951) 922- 3100 687
Prior to any Certificate of Occupancy ( COO)
133. If this project includes areas within a designated Federal Emergency Management Agency ( FEMA) National Flood Insurance Program ( NFIP) Special Flood Hazard Zone, a letter of map revision ( LOMR) shall be processed through FEMA and provided to the City Engineer prior to occupancy of affected lots.

POTABLE WATER IMPROVEMENTS
134. All public potable water improvements shall be constructed per City of Banning Standards and Specifications, Standard Specifications for Public Works Construction, current edition, or as otherwise approved in writing by the City Engineer.
135. All private potable water improvement shall be designed and constructed per California Building Code, California Plumbing Code, and California Fire Code, latest editions. All private improvements shall be concurrently reviewed by the Building and Safety Department. 136. All private fire suppression systems shall be reviewed and approved by the City Fire Marshall.
137. Applicant shall install facilities within public rights of way. Where public right of way is not available, applicant shall provide easement rights to the City of Banning covering existing and proposed facilities necessary for the project.
138. All water lines and fittings shall be a minimum of 8-inch in diameter and shall be DIP.

Water line easements shall be a minimum width of 20 feet if installed outside of right-of-way or public utility easement.
139. Fire hydrants shall be installed within and on the tract boundaries as per approved plans, at a 300-foot maximum spacing.
140. The fire service will require a RPDA backflow protection device. Private fire hydrants shall be painted red, and approval of location and materials to be coordinated with the Fire Department.
141. Detailed water demand calculations shall be submitted to justify meter sizing and to determine annual water demands, both for indoor and outdoor use at community facilities and landscape meters.
142. Submit Water Improvement Plans along with the infrastructure phasing plan to the City Engineer for review and approval. The phasing plan, which shall be supported by a hydraulic analysis, shall identify all required water infrastructure ( e.g. water mains, wells, booster stations, pressure reducing stations, reservoirs, etc.) required to meet the demands of this tract map.

Design and construct water lines throughout and to property boundaries to tract as needed. The proposed new water lines shall connect to the City's water system as needed. 143. Submit a hydraulic analysis report demonstrating adequate pressures throughout the project' s water system during max day demand ( MOD) with fire flow conditions. The hydraulic analysis, based on the City's latest calibrated water model, shall identify when and if additional facilities would be required to meet Project water demands. 144. A backflow device must be installed on all common- area buildings and at each irrigation water connection. The backflow device must be in compliance with City of Banning standards and specifications.
99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 688
145. Sizing and timing of the construction of the water storage tanks shall be identified in the phasing plan as determined by the water system analysis or as agreed to by the Developer and the City of Banning.
146. All water mains shall be looped whenever feasible. Applicant will work with the City Engineer and Water Department on agreeable design to either eliminate or reduce to the greatest extent possible dead-end lines within the subdivision.

Prior to Recordation of a Final Map
147. As required by the City Engineer and prior to recordation of the final tract map, Applicant shall prepare, and the City shall approve a Focused Water Study. The Focused Water Study shall include but not be limited to identifying well production facility locations, treatment requirements, define on/off site transmission facilities, location and volume of system storage, define system points of connection and booster or reducing stations. The report must verify that water pipeline sizes and pressures meet all required water flow rates and identify offsite system improvements and phase in which they shall be constructed. 148. Prior to recordation of the final tract map, improvement plans for water facilities shall be prepared by a Licensed Engineer and submitted for review and approval by the City Engineer.

The Applicant is required to design and construct all those water facilities identified in the approved Focused Water Study and in accordance with the phasing plan selected and approved by the City Engineer. All the proposed new waterlines shall connect into the City's water supply and be designed and constructed to City Standards.

Prior to the Issuance of a Building Permit
149. All required water lines and fire hydrants shall be installed and made operable before any building permits are issued. This may be done in phases if the construction work is in progress for emergency vehicles.

Prior to any Certificate of Occupancy
150. Prior to occupancy release, an RP backflow device must be installed on all irrigation water connections. The backflow device must be in compliance with the Titles 17 and 22 California Code of Regulations.

NON-POTABLE WATER IMPROVEMENTS
151. All public non-potable water improvements shall be constructed per City of Banning Standards and Specifications, Standard Specifications for Public Works Construction, current edition, or as otherwise approved in writing by the City Engineer. 152. Applicant shall install facilities within public rights of way. Where public right of way is not available, applicant shall provide easement rights to the City of Banning covering existing and proposed facilities necessary for the project.
153. Submit non-potable water Improvement Plans along with a non-potable water Master Plan that includes a written phasing plan to the City Engineer for review and approval. Design and construct non-potable water lines throughout to parks, schools, and other large irrigation areas and to tie-in points at the tract boundary as agreed to in the Development Agreement, Developer, and City of Banning.
154. All non-potable water lines to be constructed within the Public right-of-way shall be a minimum of 8-inches in diameter DIP ( Class 350) with restrained joints conforming to DIRPA design guidelines where required. Final sizes shall be approved by the City Engineer based on hydraulic calculations provided by the design engineer. Where non-potable water line 99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 689
easements are necessary, they shall be a minimum of 20 feet wide if improvements are installed outside of right-of-way or public utility easements. All non-potable water DIP mains shall be protected with purple-colored V-Bio polyethylene encasement. 155. A backflow device must be installed on each irrigation water connection, and in compliance with the State of California Department of Health Regulations. Contact the City of Banning, Water Operations Division, prior to the installation. 156. The non-potable water plans shall include appropriate signage for the irrigation of publicly accessible areas with non-potable water as required by the California Code of Regulations.

Prior to the Recordation of a Final Map
157. As required by the City Engineer and prior to recordation of the final tract map, applicant shall prepare, and City shall approve a supplemental Focused Recycled Water Study (may be combined with the Focused Water Study) to define system components and shall include a phasing plan for all recycled water facilities. Prior to map recordation, recycled water plans shall be submitted to the City for review and approval and shall be substantially complete to the satisfaction of the City Engineer. Design and installation of recycled water facilities shall be in accordance with the requirements and specifications of the State Division of Drinking Water, Riverside County Environmental Health, and the City of Banning. If interim use of potable water is required until Recycled water becomes available, a potable-to-non-potable above ground connection shall be designed, with a reduced pressure backflow preventer. The number of potable-to-non-potable connections shall be kept to a minimum and are subject to approval by the State Division of Drinking Water.
158. Prior to recordation of the final tract map, improvement plans for water facilities shall be prepared by a Licensed Engineer and submitted for review and approval by the City Engineer.

Prior to the Issuance of a Building Permit
159. All required water lines and fire hydrants shall be installed and made operable before any building permits are issued. This may be done in phases at the discretion of the City Engineer.

Prior to any Certificate of Occupancy
160. Prior to occupancy release, an RP backflow device must be installed on all irrigation water connections. The backflow device must be in compliance with the Titles 17 and 22 California Code of Regulations.
99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 690

SEWER IMPROVEMENTS
161. All public sewer improvements shall be constructed per City of Banning Standards and Specifications, Standard Specifications for Public Works Construction, current edition, or as otherwise approved in writing by the City Engineer.
162. Applicant shall install facilities within public rights of way. Where public right of way is not available, applicant shall provide easement rights to the City of Banning covering existing and proposed facilities necessary for the project.
163. Submit Sewer Improvement Plans along with the infrastructure phasing plan to the City Engineer for review and approval. The phasing plan shall identify all required sewer infrastructure ( e.g. sewer mains, lift stations, treatment facilities, manholes, etc.) required to meet the demands of the tract map. A hydraulic analysis will need to be prepared and submitted that demonstrates the maximum discharge that can be accommodated by the existing collections system before a new trunk line is needed. Design and construct sewer lines throughout and to property boundaries of this tract. The proposed new sewer lines shall connect into the City's sewer system.
164. All sewer lines to be constructed within the public right-of-way shall be extra strength Vitrified Clay Pipe ( VCP) or Polyvinyl Chloride ( PVC) SOR 26 Pipe. All sewer mains shall be minimum of 8 inches in diameter. Any sewer main less than or equal to 15-inches (15") shall be PVC. Any sewer main greater than 15-inches (15") shall be extra strength VCP. Any sewer with more than 15' cover (FG/FS to top of pipe) shall be extra strength VCP. Final sizes shall be approved by the City Engineer based on calculations submitted by the design engineer accounting for ultimate discharge flows for phase and all upstream areas. Sewer line easements shall be a minimum of 20 feet wide if installed outside of right-of-way or public utility easement. 165. Each residential unit shall have its own sewer lateral and shall be PVC SOR 26. 166. A sewer check valve shall be provided for each building with a finish pad elevation lower than the rim elevation of the immediate up-stream sewer manhole. 167. Sewer mains shall maintain a straight alignment from manhole to manhole whenever feasible. Bends in PVC pipe shall not be allowed. The required radius, when necessary, shall be achieved by use of deflection at the joint with VCP pipe, following manufacturer's guidelines.

Prior to Recordation of a Final Map
168. As required by the City Engineer and prior to recordation of the final tract map, the applicant shall submit a redline revised copy of the previously approved Specific Plan Sewer Study with updates to reflect the final built condition through this phase and demonstrate that the current buildout is substantially consistent with the approved sewer study. 169. Prior to recordation of the final tract map, associated improvement plans for sewer facilities shall be submitted to the City for review and approval and shall be substantially complete to the satisfaction of the City Engineer.

Prior to the Issuance of a Building Permit
170. All required sewer lines and sewer laterals shall be installed and made operable before any building permits are issued. This may be done in phases at the discretion of the City Engineer.

Prior to any Certificate of Occupancy
171. The Wilson Sewer Lift Station shall be constructed and fully operational 99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 691
Prior to Surety Release
172. The applicant shall inspect with CCTV all new public sewer mains and submit to the City for review and approval prior to surety release and acceptance of sewer improvements.

TRASH/ REFUSE/ RECYCLING/ ORGANICS
173. Prior to the issuance of a Building Permit: For any alley loaded and multi-family project, the applicant shall supply a Trash Management Plan indicating where bin placement will occur on the specified trash collection day. Appropriate signage shall be required to restrict parking in trash collection zones on collection day, and the 24-hour period prior to and after collection day.

SOLID WASTE COLLECTION SERVICES
174. Effective January 1, 2022, all residential, single-family units shall subscribe to City's threecontainer ( trash, recycling, organics), Collection Services per Banning Municipal Code, Title

8.28, "Garbage Collection and Disposal". Information on the program is available on the City of Banning website and made available at the following link:
https://library.municode.com/ca/banning/codes/code of ordinances.

CONSTRUCTION & DEMOLITION PROJECTS
175. Pursuant to CAL Green Building Standards Code section code 5.408. Construction and demolition wastes must be recycled and or salvaged for a reuse minimum of 65% of nonhazardous construction demolition waste materials. All projects require construction waste reduction, disposal and recycling services that comply with the 2019 California Green Building Standards Code ( CALGreen) as described in the Non-Residential (5.408). 176. Applicants are required to use the City's exclusive franchise hauler unless otherwise approved in writing by the Public Works Department.
177. Applicants are encouraged to review the referenced sections in the 2019 California Green Building Standard Code:https://calgreenenergyservices. com/wp/wpcontent/uploads/2019 california green code.pdf. 178. Applicants shall submit a Construction and Demolition Waste Diversion Plan to the City's Solid Waste Program Coordinator (SWPC) prior to commencement of construction or demolition.

Contact the SWPC at jgrunewald@banningca. gov or 951.922.3193 for further details and to obtain a plan template.
179. Applicants shall submit a Construction and Demolition Waste Diversion Reporting Form FEES
to the City's Solid Waste Program Coordinator upon completion of the project to obtain diversion approval prior to final sign-off. Contact the SWPC at jgrunewald@banningca. gov or 951.922.3193 for further details and to obtain a report form template. 180. All fees must be paid in full at the thresholds identified below, and as identified in the project Development Agreement.
181. Any development impact fee that is reimbursable per the terms of the Development Agreement must be identified and provided to the City Engineer for concurrence. 182. Evidence of paid fees to agencies outside the City of Banning is required prior to the issuance of any applicable permit.
99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 692
183. A fee shall be paid to Riverside County Flood Control and Water Conservation District in the amount specified by them to perform plan checking for drainage purposes for the proposed subdivision.
184. Plan check fees for professional report review and all improvement plan reviews shall be paid at the time of submittal of said documents in accordance with the fee schedule in effect at the time of the submittal.

Prior to the Issuance of a Grading Permit
185. Fees for a Grading Permit and related NOPES and Inspection Fees shall be paid prior to the issuance of any Grading Permit.

Prior to the Issuance of an Encroachment Permit
186. Public Works Permit and Inspection fees shall be paid prior to the issuance of any permits in accordance with the fee schedule in effect at the time of scheduling.

Prior to Issuance of Certificate of Occupancy
187. Water connection fees and water meter installation charges shall be paid in accordance with the fee schedule in effect at that time and the Development Agreement. 188. Sewer connection fees will be paid prior to permit issuance. 189. Traffic Impact Fees shall be paid prior to occupancy of the first structure in each tract map.
190. A plan storage fee shall be paid for any engineering plans that may be required prior to issuance of certificate of occupancy in accordance with the fee schedule in effect at the time the fee is paid.

Electric Utility:
191. The City of Banning Electric Utility ("Utility") will require adequate easements needed to service the project. An easement area behind sidewalk will be required on Highland Home Rd, Meadowline Way, and Apex St for vaults, conduits, streetlights and pad mounted transformers and switches. Adequate easements will be required to serve all parcels of this project. These easements shall be offered for dedication to the City of Banning for public utility purposes. A non-exclusive easement shall be provided to the City of Banning to include the installation of electric distribution facilities within all common areas. 192. Streetlight infrastructure is to be installed by the developer and are assumed to be publicly owned and maintained by the Utility.
193. Prior to constructing the Utility's electric distribution system, the developer shall submit a detailed engineering plan showing design, location, and schematics for the utility system to be approved by the Utility. It will also be required that the developer follow the Electric Utility Maps Records requirement ( per attachment). This will allow the utility to assist with the completion of a distribution plan and provide a cost estimate to service the project. Design conditions and 99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 693
requirements to serve the project with electricity shall be discussed and reviewed following approval of TTM No. 37388.
194. The Developer shall execute one or more line extension agreements with the Utility providing for the installation, construction, improvement, and dedication of the utility system following approval of tentative tract map.
195. All electric utility equipment will require to have adequate working clearances per local and state requirements, because of this some trees and bushes shown on the landscape plan might be eliminated. This equipment includes substructures, transformers, pad mounted switch gear and meter locations.

Fire Department:
196. Fire Hydrants and Fire Flow: Prior to the issuance of building permits, plans for the water system shall be submitted to the fire department for review and approval. The water system shall be capable of delivering the required fire flow. Fire hydrant( s) location and spacing shall comply with the fire code. An approved water supply for fire protection during construction shall be made available prior to the arrival of combustible materials on site. Reference 2016 California Fire Code ( CFC) 507.5.1, 3312, Appendices Band C.
197. Fire Department Access: Prior to building permit issuance, provide a site plan showing the fire lanes. Access roads shall be provided to within 150 feet to all portions of the exterior building walls and shall have an unobstructed width of not less than 24 feet. The construction of the access roads shall be all weather and capable of sustaining 40,000 lbs. over two axles for areas of residential development and 60,000 lbs. over two axels for commercial developments.

Approved vehicle access, either permanent or temporary, shall be provided during construction Ref. CFC 503.1.1, 3310.1 and 503.2.1
198. Requests for installation of traffic calming designs/ devices on fire apparatus access roads shall be submitted and approved by the Office of the Fire Marshal. Ref. CFC 503.4.1 199. Construction Permits Fire Department Review: Submittal of house construction plans to the Office of the Fire Marshal for development, construction, installation, and operational use permitting will be required. Final fire and life safety conditions will be addressed when the Office of the Fire Marshal reviews these plans. These conditions will be based on occupancy, use, California Building Code ( CBC), California Fire Code, and related codes, which are in effect at the time of building plan submittal.
200. Phased Construction Access: If construction is phased, each phase shall provide approved access for fire protection prior to any construction. Ref. CFC 503.1 Banning Fire Services - Office of the County Fire Marshal Planning Case Conditions - Page 2 99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220-0998 • (951) 922-3100 7. Residential Fire Sprinklers:

Residential fire sprinklers are required in all one and two-family dwellings per the California Residential Code ( CRC). Plans must be submitted to the Office of the Fire Marshal for review and approval prior to installation. Ref. CRC 313.2
99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 694
201. All electronically operated gates shall be provided with Knox key switches and automatic sensors for access. Ref. CFC 506.1
202. Addressing: All residential dwellings shall display street numbers in a prominent location on the street side of the residence. All commercial buildings shall display street numbers in a prominent location on the address side and additional locations as required. Ref. CFC 505.1 and County of Riverside Office of the Fire Marshal Standard # 07-01 END***
99 E. Ramsey Street• P.O. Box 998 • Banning, CA 92220- 0998 • ( 951) 922- 3100 695
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CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Nicole Jews, Human Resources Manager
Lincoln Bogard, Administrative Services Director
MEETING DATE: December 10, 2024
SUBJECT: Consideration of Resolution 2024-191, Approving the Restatement of the City of Banning Section 125 Cafeteria Plan
RECOMMENDATION:

Adopt Resolution 2024-191.

BACKGROUND:

Section 125 of the Internal Revenue Code (Code) authorizes employers to offer employees benefits on a pre-tax basis. An employer’s benefit plan that offers benefits on a pre-tax basis is referred to as a “Section 125 Plan”, “Section 125 Cafeteria Plan", or a “Cafeteria Plan” (due to the fact that the employee can select from among different benefit options, including some pre-tax). Employer’s use these plans to provide their employees with a choice between taxable cash and certain qualified benefits without adverse tax consequences. Paying for benefits on a pre-tax basis reduces the employees’ taxable income and therefore reduces the employees’ tax liability. In order to receive these tax advantages, the plan must comply the rules and regulations of the Internal Revenue Services and the Code, one of which requires a Section 125 Plan must have a written plan document outlining the qualified benefits.

JUSTIFICATION:

The City of Banning has offered its employees pre-tax benefits, including health benefits, for some time and engaged Liebert Cassidy Whitmore, an experienced employment law firm, to draft its restated Section 125 Cafeteria Plan document that describes all cafeteria plan benefits and establishes rules for eligibility and elections. The City must adopt the restated Section 125 Cafeteria Plan document, which requires Council approval, in order to ensure the City continues to maintain the pre-tax benefits for IRS purposes.

Employees participating in a Section 125 Plan must be permitted to choose among at least one taxable benefit and one qualified benefit. The qualified benefits under the City’s Section 125 Cafeteria Plan include health insurance benefits (medical, dental and vision insurance), dependent care assistance, health flexible spending account, and group term life insurance coverage. In addition, once an employee makes a Section 125 Cafeteria Plan election, he or she may not change that election until the next plan year, unless the employee experiences a permitted election change event. The next “Plan Year” is effective January 1, 2025, for the calendar year 2025.

Staff recommends the City Council approve and adopt the attached restated Section 125 Cafeteria Plan, and authorize the City Manager, or designee, to execute and administer the Plan and related documents.

FISCAL IMPACT:
792
The adoption of the proposed resolution and the Plan document does not have an impact on the adopted budget but will ensure the City’s continued compliance with Section 125 of the Internal Revenue Code.

ALTERNATIVES:

Do not approve Resolution 2024-191 and provide alternative direction to staff.

BUDGETED?:

Yes
CONTRACT/AGREEMENT:

No
ATTACHMENTS:

1. Resolution 2024-191, Cafeteria Plan.docx

2. City of Banning - Section 125 Cafeteria Plan Document(12531485.1).docx 793
Resolution 2024-191

Page 1 of 3 ends

12678479.3 BA060-048
RESOLUTION 2024-191

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, APPROVING THE RESTATEMENT OF THE CITY OF BANNING SECTION 125 CAFETERIA PLAN
WHEREAS, Section 125 of the Internal Revenue Code ("Code") and the regulations thereunder permit an eligible employer to implement a Section 125 Plan ("Cafeteria Plan") for the benefit of its eligible employees; and
WHEREAS, a Section 125 Cafeteria Plan is a mechanism through which an employer can offer its employees with certain pre-tax benefits; and
WHEREAS, the City of Banning the City offers its employees pre-tax benefits and desires to restate the City of Banning Section 125 Cafeteria Plan effective January 1, 2025 in order to reflect plan design changes and comply with current legal requirements; and WHEREAS, the City Council desires to authorize the City Manager, or designee, to execute the proposed plan documents on behalf of the City, along with any future amendments that contain only non-substantive and/or administrative changes to the plan documents; and WHEREAS, the City Council determines that adoption of this Resolution is in the City’s interest.

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

SECTION 1. The City Council hereby adopts the restated City of Banning Section 125 Cafeteria Plan effective January 1, 2025, for the plan year beginning January 1, 2025.

SECTION 2. The City Council authorizes the City Manager, or designee, to duly execute the Section 125 Cafeteria Plan on behalf of the City, along with any future amendments that contain only non-substantive and or administrative changes to the plan documents.

SECTION 3. This Resolution shall take effect immediately upon adoption.

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 10th day of December 2024.

Mayor
City of Banning
794
Resolution 2024-191

Page 2 of 3 ends

12678479.3 BA060-048
ATTEST:

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

Serita R. Young, City Attorney
Richards, Watson & Gershon
795
Resolution 2024-191

Page 3 of 3 ends

12678479.3 BA060-048
CERTIFICATION:

I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-191, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 10th day of December 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
796
1 12545896.4 BA060-048
City of Banning
Section 125 Cafeteria Plan
Plan Document
Restated January 1, 2025
797
2 12545896.4 BA060-048
CITY OF BANNING SECTION 125 CAFETERIA PLAN
ARTICLE I. Introduction

1.1 Establishment of Plan. City of Banning (“City”) hereby establishes the City’s Section 125 Cafeteria Plan (“Plan”), restated on January 1, 2025. Capitalized terms shall have the meanings set forth in Article II unless defined elsewhere in the Plan. This Plan designed to permit an Eligible Employee to pay for their share of Contributions under the Medical Insurance Plan, Dental Insurance Plan, Vision Insurance Plan, Health Flexible Spending Account (“FSA”), Dependent Care Assistance Program (“DCAP”), and Life Insurance Plan on a pre-tax Salary Reduction basis.

1.2 Legal Status. This Plan is intended to qualify as a cafeteria plan under Internal Revenue Code § 125 and the regulations issued thereunder and shall be interpreted to accomplish that objective.

The Health FSA Component is intended to qualify as a self-insured medical reimbursement plan under Code §105, and the Medical Care Expenses reimbursed thereunder are intended to be eligible for exclusion from participating Employees' gross income under Code §105(b). The DCAP Component is intended to qualify as a Dependent Care Assistance Program under Code §129, and the Dependent Care Expenses reimbursed thereunder are intended to be eligible for exclusion from participating Employees' gross income under Code §129(a).

Although reprinted within this document, the Health FSA Component and the DCAP Component are separate plans for purposes of administration and all reporting and nondiscrimination requirements imposed by Code §§105 and 129. The Health FSA Component is also a separate plan for purposes of applicable provisions of HIPAA and COBRA. In the event that the Health FSA Component is determined not to be a separate plan, the Plan shall be designated as a hybrid entity for purposes of HIPAA, such that it shall be a covered entity only with respect to the Health FSA Component. The Medical Insurance Plan, Dental Insurance Plan, and Health FSA are intended to be part of an organized health care arrangement for 798
3 12545896.4 BA060-048
purposes of HIPAA.

ARTICLE II. Definitions

2.1 Definitions.

Account(s) means the Health FSA Accounts and the DCAP Accounts described in Section 7.5 for Health FSAs, and Section 9.5 for DCAPs.

Benefits means the Premium Payment Benefits (which includes the Medical Insurance Plan, Dental Insurance Plan, and Vision Insurance Plan), Health FSA Benefits, the DCAP Benefits, and the Life Insurance Plan Benefits that are offered under the Plan and that are paid for or partially paid for on a pre-tax Salary Reduction basis as described in Section 6.1 for Premium Payment Benefits, Section 7.1 for Health FSA Benefits, Section 8.1 for Life Insurance Benefits, and Section 9.1 for DCAP Benefits.

Benefit Package Option means a qualified benefit under Code § 125(f) that is offered under a cafeteria plan, or an option for coverage under an underlying health plan (such as an HMO or a PPO option under a health plan). Benefits prohibited under Code §125(f) (such as long-term care insurance and certain Exchange-participating qualified health plans) are not permitted Benefit Package Options.

Change in Status means any of the events described below, as well as any other events included in subsequent changes to Code § 125, or regulations or guidance issued thereunder that the Plan Administrator, in its sole discretion and on a uniform and consistent basis, determines are permitted under applicable law and under this Plan:
(a) Legal Marital Status. A change in a Participant's legal marital status, including marriage, death of a Spouse, divorce, legal separation, or annulment; (b) Number of Dependents. Events that change a Participant's number of Dependents, including birth, death, adoption, and placement for adoption; (c) Employment Status. Any of the following events that change the employment status 799
4 12545896.4 BA060-048
of the Participant or their Spouse or Dependents: (1) a termination or commencement of employment; (2) a strike or lockout; (3) a commencement of or return from an unpaid leave of absence; (4) a change in worksite; and (5) if the eligibility conditions of this Plan or other employee benefits plan of the Participant or their Spouse or Dependents depend on the employment status of that individual and there is a change in that individual's status with the consequence that the individual becomes (or ceases to be) eligible under this Plan or other employee benefits plan; (d) Dependent Eligibility Requirements. An event that causes a Dependent to satisfy or cease to satisfy the Dependent eligibility requirements for a particular benefit, such as attaining a specified age, Student status, or any similar circumstance; and (e) Change in Residence. A change in the place of residence of the Participant or their Spouse or Dependents.

COBRA means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.

Code means the Internal Revenue Code of 1986, as amended.

Committee means the Benefits Committee appointed by the City.

Compensation means the wages or salary paid to an Employee by the Employer, determined prior to (a) any Salary Reduction election under this Plan; (b) any salary reduction election under any other cafeteria plan; and (c) any compensation reduction under any Code § 132(f)(4) plan; but determined after (d) any salary deferral elections under any Code §401(k), 403(b), 408(k), or 457(b) plan or arrangement. Thus, "Compensation" generally means wages or salary paid to an Employee by the Employer, as reported in Box 1 of Form W-2, but adding back any wages or salary forgone by virtue of any election described in (a), (b), or (c) of the preceding sentence.

Component(s) means one or more of the following: the DCAP Component, the Health FSA Component, or the Premium Payment Component.

Contribution(s) means the amount contributed to pay for the cost of Benefits (including self800 5 12545896.4 BA060-048
funded Benefits as well as those that are insured), as calculated under Section 6.2 for Premium Payment Benefits, Section 7.2 for Health FSA Benefits, Section 8.2 for Life Insurance Benefits, and Section 9.2 for DCAP Benefits.

DCAP means dependent care assistance program.

DCAP Account means the account described in Section 9.5.

DCAP Benefits has the meaning described in Section 9.1.

DCAP Component means the component of this Plan described in Article IX.

Dental Insurance Benefits means the Employee's Dental Insurance Plan coverage for purposes of this Plan.

Dental Insurance Plan means the plan(s) that the Employer maintains for its Employees (and for their Spouses and Dependents who may be eligible under the terms of such plan), providing dental benefits through a group insurance policy or policies. The Employer may substitute, add, subtract, or revise at any time the menu of such plans and/or the benefits, terms, and conditions of any such plans. Any such substitution, addition, subtraction, or revision will be communicated to Participants and will automatically be incorporated by reference under this Plan.

Dependent means: for purposes of health coverage (to the extent funded under the Premium Payment Component), (1) a dependent as defined in Code § 105(b), (2) any child (as defined in Code § 152(f)(1)) of the Participant who has not attained age 26, and (3) any child of the Participant to whom IRS Revenue Procedure 2008-48 applies (regarding certain children of divorced or separated parents who receive more than half of their support for the calendar year from one or both parents and are in the custody of one or both parents for more than half of the calendar year).

Dependent Care Expenses has the meaning described in Section 9.3.

Earned Income shall have the meaning given such term in Code § 129(e)(2). 801
6 12545896.4 BA060-048
Election Form/Salary Reduction Agreement means the actual or deemed paper or electronic form provided by the Administrator for the purpose of allowing an Eligible Employee to participate in this Plan by electing Salary Reductions to pay for Benefits. It includes an agreement pursuant to which an Eligible Employee or Participant authorizes the Employer to make Salary Reductions.

Eligible Employee means an Employee eligible to participate in this Plan, as provided in Section 3.1.

Eligible Opt Out Arrangement means an Opt Out Arrangement that meets the conditions of Section 6.5.

Employee means an individual that the Employer classifies as a common-law employee and who is on the Employer's W-2 payroll, but does not include the following: (a) any leased employee (including but not limited to those individuals defined as leased employees in Code § 414(n)) or any individual classified by the Employer as an independent contractor for the period during which such individual is so classified (even if subsequently determined by the IRS, the Department of Labor, a court of competent jurisdiction, or the Employer to be a common-law employee of the Employer), whether or not any such individual is on the Employer's W-2 payroll; (b) any individual who performs services for the Employer but who is paid by a temporary or other employment or staffing agency for the period during which such individual is paid by such agency, whether or not such individual is determined by the IRS or others to be a common-law employee of the Employer; (c) any self-employed individual; (d) any partner in a partnership; and (e) any more-than-2% shareholder in a Subchapter S corporation. The term Employee does include former Employees for the limited purpose of allowing continued eligibility for benefits under the Plan for the remainder of the Plan Year in which an Employee ceases to be employed by the Employer, but only to the extent specifically provided elsewhere under this Plan.

Employer means the City of Banning.
802
7 12545896.4 BA060-048
Employment Commencement Date means the first regularly scheduled working day on which the Employee first performs an hour of service for the Employer for Compensation.

ERISA means the Employee Retirement Income Security Act of 1974, as amended.

FMLA means the Family and Medical Leave Act of 1993, as amended.

General-Purpose Health FSA Option has the meaning described in Section 7.3(b).

Grace Period means the period that begins immediately following the close of a Plan Year and ends on the day that is 2 months plus 15 days following the close of that Plan Year.

Health Flex Contribution means any Employer Contribution that meets the following requirements: (1) the Participant may not opt to receive the amount as a taxable benefit, (2) the Participant may use the amount to pay for minimum essential coverage, and (3) the Participant may use the amount exclusively to pay for medical care, within the meaning of Code § 213.

The Health Flex Contribution includes the City’s dollar allowance to eligible employee for their use in purchasing the various health insurance benefits offered by the City.

Health FSA means health flexible spending arrangement, which consists of two options: the General-Purpose Health FSA Option and the Limited (Vision/Dental/Preventive Care) Health FSA Option.

Health FSA Account means the account described in Section 7.5.

Health FSA Benefits has the meaning described in Section 7.1.

Health FSA Component means the component of this Plan described in Article VII.

High-Deductible Health Plan means the high-deductible health plan offered by the Employer as a Benefit Package Option under the Medical Insurance Plan that is intended to qualify as a high-deductible health plan under Code §223(c)(2), as described in materials provided separately by the Employer.

HIPAA means the Health Insurance Portability and Accountability Act of 1996, as amended. 803
8 12545896.4 BA060-048
HMO means the health maintenance organization Benefit Package Option (if any) under the Medical Insurance Plan.

Limited (Vision/Dental/Preventive Care) Health FSA Option has the meaning described in Section 7.3(b).

Medical Care Expenses means expenses incurred by a Participant or their Spouse or Dependents for medical care, as defined in Code § 213(d), but only to the extent that the expense has not been reimbursed through insurance or otherwise.

Medical Insurance Benefits means the Employee's Medical Insurance Plan coverage for purposes of this Plan.

Medical Insurance Plan means the plan(s) that the Employer maintains for its Employees (and for their Spouses and Dependents who may be eligible under the terms of such plan), providing major medical-type benefits through a group insurance policy or policies. The Employer may substitute, add, subtract, or revise at any time the menu of such plans and/or the benefits, terms, and conditions of any such plans. Any such substitution, addition, subtraction, or revision will be communicated to Participants and will automatically be incorporated by reference under this Plan.

Non-Health Flex Contribution means an Employer designated Contribution that does not meet the definition of a Health Flex Contribution.

Open Enrollment Period with respect to a Plan Year means a period in September and October in the year preceding the Plan Year as prescribed by the Medical Insurance Plan, a period in September preceding the Plan Year as prescribed by the Dental and Vision Insurance Plans, and/or such other period as may be prescribed by the Administrator.

Participant means a person who is an Eligible Employee and who is participating in Benefits under this Plan in accordance with the provisions of Article III. Participants include (a) those who elect the Benefits and Salary Reductions to pay for such Benefits; and (b) those who 804
9 12545896.4 BA060-048
decline to enroll in the Medical Insurance Plan and elect to receive a cash amount under an Opt Out Arrangement or Eligible Opt Out Arrangement.

Period of Coverage means the Plan Year, with the following exceptions: (a) for Employees who first become eligible to participate, it shall mean the portion of the Plan Year following the date on which participation commences, as described in Section 3.1; and (b) for Employees who terminate participation, it shall mean the portion of the Plan Year prior to the date on which participation terminates, as described in Section 3.2.

Plan means the City’s Section 125 Cafeteria Plan as set forth herein and as amended from time to time.

Plan Administrator means the City. The contact person is the Deputy City Manager / Administrative Services Director for the City, who has the full authority to act on behalf of the Plan Administrator, except with respect to appeals, for which the Committee has the full authority to act on behalf of the Plan Administrator, as described in Section 12.1.

Plan Year for the Medical, Dental, and Vision Insurance Plans means the calendar year (i.e., the 12-month period commencing January 1 and ending on December 31).

PPO means the preferred provider organization Benefit Package Option (if any) under the Medical Insurance Plan.

Premium Payment Component means the component of this Plan described in Article VI.

Prior Plan Year DCAP Amounts has the meaning described in Section 9.4(e).

QMCSO means a qualified medical child support order, as defined in ERISA §609(a).

Qualifying Dependent Care Services has the meaning described in Section 9.3.

Qualifying Individual means (a) a tax dependent of the Participant as defined in Code § 152 who is under the age of 13 and who is the Participant's qualifying child as defined in Code § 152(a)(1); (b) a tax dependent of the Participant as defined in Code § 152, but determined without regard to subsections (b)(1), (b)(2), and (d)(1)(B) thereof, who is physically or 805
10 12545896.4 BA060-048
mentally incapable of self-care and who has the same principal place of abode as the Participant for more than half of the year; or (c) a Participant's Spouse who is physically or mentally incapable of self-care, and who has the same principal place of abode as the Participant for more than half of the year. Notwithstanding the foregoing, in the case of divorced or separated parents, a Qualifying Individual who is a child shall, as provided in Code § 21(e)(5), be treated as a Qualifying Individual of the custodial parent (within the meaning of Code § 152(e)) and shall not be treated as a Qualifying Individual with respect to the noncustodial parent.

Salary Reduction means the amount by which the Participant's Compensation is reduced and applied by the Employer under this Plan to pay for one or more of the Benefits, as permitted for the applicable component, before any applicable state and/or federal taxes have been deducted from the Participant's Compensation (i.e., on a pre-tax basis).

Spouse means an individual who is treated as a spouse for federal tax purposes.

Notwithstanding the above, for purposes of the DCAP Component, the term Spouse shall not include (a) an individual legally separated from the Participant under a divorce or separate maintenance decree; or (b) an individual who is married to the Participant and files a separate federal income tax return, where (i) the Participant maintains a household that constitutes a Qualifying Individual's principal place of abode for more than one-half of the taxable year, (ii) the Participant furnishes more than half of the cost of maintaining such household, and (iii) during the last 6 months of such taxable year, the individual is not a member of such household.

Student means an individual who, during each of five or more calendar months during the Plan Year, is a full-time student at any educational organization that normally maintains a regular faculty and curriculum and normally has an enrolled student body in attendance at the location where its educational activities are regularly carried on.

Vision Insurance Benefits means the Employee's Vision Insurance Plan coverage for 806
11 12545896.4 BA060-048
purposes of this Plan.

Vision Insurance Plan means the plan(s) that the Employer maintains for its Employees (and for their Spouses and Dependents who may be eligible under the terms of such plan), providing vision benefits through a group insurance policy or policies. The Employer may substitute, add, subtract, or revise at any time the menu of such plans and/or the benefits, terms, and conditions of any such plans. Any such substitution, addition, subtraction, or revision will be communicated to Participants and will automatically be incorporated by reference under this Plan.

ARTICLE III. Eligibility and Participation

3.1 Eligibility to Participate. Subject to the eligibility requirements under a memorandum of understanding, resolution, or City policy, or contract, if any, an individual is eligible to participate in this Plan if the individual: (a) is an Employee; and (b) is eligible for the Medical Insurance Benefits (whether or not coverage under such plan has been elected) subject to eligibility requirements under a resolution, policy, or contract, if any. Eligibility for the Benefits shall also be subject to the additional requirements, if any, specified in the Medical Insurance, Dental Insurance, Vision Insurance, Health FSA, DCAP, and Life Insurance Plans. Once an Employee has met the Plan’s and the Medical Insurance, Dental Insurance, Vision Insurance, Health FSA, DCAP, and Life Insurance Plan's eligibility requirements, the Employee may elect coverage effective the first day of the next calendar month, or for any subsequent Plan Year, in accordance with the procedures described in Article IV.

3.2 Termination of Participation. A Participant will cease to be a Participant in this Plan upon the earlier of:
(a) the termination of this Plan; or
(b) the date on which the Employee ceases (because of retirement, termination of employment, layoff, reduction of hours, or any other reason) to be an Eligible Employee. Notwithstanding the foregoing, for purposes of pre-taxing COBRA coverage 807
12 12545896.4 BA060-048
certain Employees may continue eligibility for certain periods on the terms and subject to the restrictions described in Section 6.4 for Insurance Benefits and Section 7.8 for Health FSA Benefits.

Termination of participation in this Plan will automatically revoke the Participant's elections.

The Medical, Dental, and Vision Insurance Benefits will terminate as of the date(s) specified in the Medical, Dental, and Vision Insurance Plans. Reimbursements from the Health FSA and DCAP Accounts after termination of participation will be made pursuant to Section 7.8 for Health FSA Benefits and Section 9.8 for DCAP Benefits.

3.3 Participation Following Termination of Employment or Loss of Eligibility. If a Participant terminates their employment for any reason, including (but not limited to) disability, retirement, layoff, or voluntary resignation, and then is rehired within 30 days or less after the date of a termination of employment, then the Employee will be reinstated with the same elections that such individual had before termination. If a former Participant is rehired more than 30 days following termination of employment and is otherwise eligible to participate in the Plan, then the individual may make new elections as a new hire as described in Section 3.1.

Notwithstanding the above, an election to participate in the Premium Payment Component will be reinstated only to the extent that coverage under the Medical, Dental, and/or Vision Insurance Plan is reinstated. If an Employee (whether or not a Participant) ceases to be an Eligible Employee for any reason (other than for termination of employment), including but not limited to a reduction of hours, and then becomes an Eligible Employee again, the Employee must complete any waiting required by the Benefits before again becoming eligible to participate in those Benefits.

3.4 FMLA Leaves of Absence.
(a) Health Benefits. Notwithstanding any provision to the contrary in this Plan, if a Participant goes on a qualifying leave under the FMLA, then to the extent required by the FMLA, the Employer will continue to maintain the Participant's Medical, Dental, and 808
13 12545896.4 BA060-048
Vision Insurance Benefits, and Health FSA Benefits on the same terms and conditions as if the Participant were still an active Employee. That is, if the Participant elects to continue their coverage while on leave, the Employer will continue to pay its share of the Contributions.

An Employer may require Participants to continue all Medical Insurance Benefits, Dental Insurance Benefits, Vision Insurance Benefits, and Health FSA Benefits coverage while they are on paid leave, provided that Participants on non-FMLA paid leave are required to continue such coverage. If so, the Participant's share of the Contributions shall be paid by the method normally used during any paid leave (e.g., on a pre-tax Salary Reduction basis).

In the event of unpaid FMLA leave (or paid FMLA leave where coverage is not required to be continued), a Participant may elect to continue their Medical Insurance Benefits, Dental Insurance Benefits, Vision Insurance Benefits, and Health FSA Benefits during the leave. If the Participant elects to continue coverage while on FMLA leave, then the Participant may pay their share of the Contributions in one of the following ways:
• with after-tax dollars, by sending monthly payments to the Employer by the due date established by the Employer;
• with pre-tax dollars, by having such amounts withheld from the Participant's ongoing Compensation (if any), including unused sick days and vacation days, or pre-paying all or a portion of the Contributions for the expected duration of the leave on a pre-tax Salary Reduction basis out of pre-leave Compensation.

To pre-pay the Contributions, the Participant must make a special election to that effect prior to the date that such Compensation would normally be made available (pre-tax dollars may not be used to fund coverage during the next Plan Year); or
• under another arrangement agreed upon between the Participant and the Plan Administrator (e.g., the Plan Administrator may fund coverage during the 809
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leave and withhold "catch-up" amounts from the Participant's Compensation on a pre-tax or after-tax basis) upon the Participant's return.

If the Employer requires all Participants to continue Medical Insurance, Dental Insurance, Vision Insurance, and/or Health FSA Benefits during an unpaid FMLA leave, then the Participant may elect to discontinue payment of the Participant's required Contributions for such Benefit(s) until the Participant returns from leave. Upon returning from leave, the Participant will be required to repay the Contributions not paid by the Participant during the leave. Payment shall be withheld from the Participant's Compensation either on a pre-tax or after-tax basis, as agreed to by the Plan Administrator and the Participant.

If a Participant's Medical Insurance Benefits, Dental Insurance Benefits, Vision Insurance Benefits, or Health FSA Benefits coverage ceases while on FMLA leave (e.g., for nonpayment of required contributions), then the Participant is permitted to re-enter the Medical Insurance Benefits, Dental Insurance Benefits, Vision Insurance Benefits, or Health FSA Benefits as applicable, upon return from such leave on the same basis as when the Participant was participating in the Plan prior to the leave, or as otherwise required by the FMLA.

In addition, the Plan may require Participants whose Medical Insurance Benefits, Dental Insurance Benefits, Vision Insurance Benefits, or Health FSA Benefits coverage terminated during the leave to be reinstated in such coverage upon return from unpaid leave, provided that Participants who return from a period of unpaid, non-FMLA leave are required to be reinstated in such coverage. Notwithstanding the preceding sentence, with regard to Health FSA Benefits a Participant whose coverage ceased will be permitted to elect whether to be reinstated in the Health FSA Benefits at the same coverage level as was in effect before the FMLA leave (with increased contributions for the remaining period of coverage) or at a coverage level that is reduced pro rata for the period of FMLA leave during which the Participant did not pay Contributions. If a Participant elects a coverage level that is reduced pro rata for the period of FMLA leave, 810
15 12545896.4 BA060-048
then the amount withheld from a Participant's Compensation on a per-pay-period basis for the purpose of paying for reinstated Health FSA Benefits will be equal to the amount withheld prior to the period of FMLA leave.
(b) Non-Health Benefits. If a Participant goes on a qualifying leave under the FMLA, then entitlement to non-health benefits (such as DCAP Benefits) is to be determined by the Employer's policy for providing such Benefits when Participants are on non-FMLA leave, as described in Section 3.5. If such policy permits a Participant to discontinue contributions while on leave, then the Participant will, upon returning from leave, be required to repay the Contributions not paid by the Participant during the leave. Payment shall be withheld from the Participant's Compensation either on a pre-tax or after-tax basis, as may be agreed upon by the Plan Administrator and the Participant, or as the Plan Administrator otherwise deems appropriate.

3.5 Non-FMLA Leaves of Absence. If a Participant goes on an unpaid leave of absence that does not affect eligibility, then the Participant will continue to participate and the Contributions due for the Participant will be paid by pre-payment before going on leave, by after-tax contributions while on leave, or with catch-up contributions after the leave ends, as may be determined by the Plan Administrator. If a Participant goes on an unpaid leave that affects eligibility, then the election change rules in Section 11.3(d) will apply.

ARTICLE IV. Method and Timing of Elections

4.1 Elections When First Eligible. An Employee who first becomes eligible to participate in the Plan mid-Plan Year (“midyear”) may elect to commence participation in one or more Benefits on the first day of the month after the eligibility requirements have been satisfied, provided that an Election Form/Salary Reduction Agreement is submitted to the Plan Administrator before the first day of the month in which participation will commence. An Employee who does not elect benefits when first eligible may not enroll until the next Open Enrollment Period, unless an event occurs that would justify a midyear election change, as 811
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described under Section 11.3. The provisions of this Plan are not intended to override any exclusions, eligibility requirements, or waiting periods specified in the Medical, Dental, and/or Vision Insurance Plans.

4.2 Elections During Open Enrollment Period. During each Open Enrollment Period with respect to a Plan Year, the Plan Administrator shall provide a paper or electronic Election Form/Salary Reduction Agreement to each Eligible Employee. The Eligible Employee may elect to participate in the Benefits of this Plan for the next Plan Year and authorize the necessary Salary Reductions to pay for the Benefits elected by completing the Election Form/Salary Reduction Agreement. The Election Form/Salary Reduction Agreement must be returned to the Plan Administrator on or before the last day of the Open Enrollment Period, and it shall become effective on the first day of the next Plan Year.

4.3 Failure of Eligible Employee to File an Election Form/Salary Reduction Agreement. If an Eligible Employee fails to file an Election Form/Salary Reduction Agreement within the time period described in Sections 4.1 and 4.2, then the Employee may not elect any Benefits under the Plan (a) until the next Open Enrollment Period; or (b) until an event occurs that would justify a midyear election change, as described under Section 11.3 or 11.4.

If an Employee who fails to file an Election Form/Salary Reduction Agreement is eligible for Medical Insurance Benefits and has made an effective election for such Benefits outside of Open Enrollment and does not have an event that would justify a midyear election change, then the Employee's share of the Contributions for such Benefits will be paid with after-tax dollars outside of this Plan until such time as the Employee files, during a subsequent Open Enrollment Period (or after an event occurs that would justify a midyear election change as described under Section 11.3), a timely Election Form/Salary Reduction Agreement to elect Benefits. Until the Employee files such an election, the Employer's portion of the Contribution will also be paid outside of this Plan.

4.4 Irrevocability of Elections. Unless an exception applies (as described in Article XI), a 812
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Participant's election under the Plan is irrevocable for the duration of the Period of Coverage to which it relates.

ARTICLE V. Benefits Offered and Method of Funding

5.1 Benefits Offered. When first eligible or during the Open Enrollment Period as described under Article IV, Eligible Employees will be given the opportunity to elect one of more of the following Benefits:
(a) Premium Payment Benefits, as described in Article VI; (b) Health FSA Benefits, as described in Article VII.
(c) Life Insurance Benefits, as described in Article VIII; and (d) DCAP Benefits, as described in Article IX.

In no event shall Benefits under the Plan be provided in the form of deferred compensation.

Notwithstanding the foregoing, Health FSA carryovers may be permitted as provided in Article VII and under any applicable memorandum of understanding, resolution, policy, or contract. In addition, amounts remaining in a Participant's DCAP Account at the end of a Plan Year may be used to reimburse the Participant for Dependent Care Expenses that are incurred during the Grace Period immediately following the close of that Plan Year as provided in Article IX. No Grace Period is available for Health FSA Benefits.

5.2 Employer and Participant Contributions
(a) Employer Contributions. For Participants who elect Medical, Dental, Vision, Health FSA, DCAP or Life Insurance Benefits, the Employer may contribute a portion of the Contributions as provided in the Open Enrollment materials furnished to Employees, the Election Form/Salary Reduction Agreement, and/or any applicable memorandum of understanding, resolution, policy, or contract. The Employer may also designate a Health Flex Contribution that a Participant may allocate to the Medical, Dental, and/or Vision Insurance Plans, as provided by any applicable memorandum of understanding, 813
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resolution, policy, or contract related to this Plan. The Employer may also designate a non-health flex contribution, flex dollars, or any other named employer contribution amount as permitted by an Employer policy, memorandum of understanding, resolution, or other contract.
(b) Participant Contributions. Participants who elect Benefits may pay for the cost of coverage on a pre-tax Salary Reduction basis by completing an Election Form/Salary Reduction Agreement. Participants who elect Health FSA Benefits or DCAP Benefits must pay for the cost of that coverage on a pre-tax Salary Reduction basis by completing an Election Form/Salary Reduction Agreement.

5.3 Using Salary Reductions to Make Contributions
(a) Salary Reductions per Pay Period. The Salary Reduction for a pay period for a Participant is, for the Benefits elected, an amount equal to (1) the annual Contributions for such Benefits (as described in Section 6.2 for Premium Payment Benefits, Section

7.2 for Health FSA Benefits, Section 8.2 for Life Insurance Benefits, and Section 10.2 for DCAP Benefits, as applicable), divided by the number of pay periods in the Period of Coverage; (2) an amount otherwise agreed upon between the Employer and the Participant; or (3) an amount deemed appropriate by the Plan Administrator. If a Participant increases his or her election under the Health FSA Component, Life Insurance, or DCAP Component to the extent permitted under Section 11.3, the Salary Reductions per pay period will be, for the Benefits affected, an amount equal to (1) the new reimbursement limit elected pursuant to Section 11.3, less the Salary Reductions made prior to such election change, divided by the number of pay periods in the balance of the Period of Coverage commencing with the election change; (2) an amount otherwise agreed upon between the Employer and the Participant; or (3) an amount deemed appropriate by the Plan Administrator (i.e., in the event of shortage of reducible Compensation, amounts withheld and the benefits to which Salary Reductions are 814
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applied may fluctuate).
(b) Considered Employer Contributions for Certain Purposes. Salary Reductions are applied by the Employer to pay for the Participant's share of the Contributions for the Benefits, and, for the purposes of this Plan and the Code, are considered to be Employer contributions.
(c) Salary Reduction Balance Upon Termination of Coverage. If, as of the date that any elected coverage under this Plan terminates, a Participant's year-to-date Salary Reductions exceed or are less than the Participant's required Contributions for the coverage, then the Employer will, as applicable, either return the excess to the Participant as additional taxable wages or recoup the due Salary Reduction amounts from any remaining Compensation.

5.4 Funding This Plan. All of the amounts payable under this Plan shall be paid from the general assets of the Employer, but Benefits are paid as provided in the applicable Medical, Dental, or Vision Insurance Plan. Nothing herein will be construed to require the Employer or the Plan Administrator to maintain any fund or to segregate any amount for the benefit of any Participant, and no Participant or other person shall have any claim against, right to, or security or other interest in any fund, account, or asset of the Employer from which any payment under this Plan may be made. There is no trust or other fund from which Benefits are paid.

ARTICLE VI. Premium Payment Component

6.1 Benefits. The Premium Payment Component offers benefits under the Medical, Dental, and Vision Insurance Plans. Notwithstanding any other provision in this Plan, the Medical, Dental, and Vision Insurance Benefits are subject to the terms and conditions of the Medical, Dental, and Vision Insurance Plans, and no changes can be made with respect to such Benefits under this Plan (such as midyear changes in election) if such changes are not permitted under the applicable Medical, Dental, and Vision Insurance Plans. An Eligible Employee can elect Benefits by electing to pay for their share of the Contributions for the Benefits on a pre-tax 815
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Salary Reduction basis; or elect no Benefits.

6.2 Contributions for Cost of Coverage. The annual Employer Contribution for a Participant's Benefits is equal to the amount as set by the Employer, as described in a memorandum of understanding, resolution, policy, contract, or other applicable document, which may or may not be the same amount charged by the Medical, Dental, or Vision Insurance Plan or insurance carrier. The Employer may also designate Health Flex Contributions that a Participant may allocate to Medical, Dental, and Vision Insurance Benefits. Participants who elect benefits under the Medical Insurance Plan and/or the Group Term Life Insurance Plan and contribute to the cost of coverage, pay for the cost of that coverage on a pre-tax Salary Reduction basis up to any applicable limitations by completing an Election Form/Salary Reduction Agreement.

6.3 Benefits Provided Under the Medical, Dental, and Vision Insurance Plans. The types and amounts of Medical, Dental, and Vision Insurance Benefits, the requirements for participating in the Medical, Dental, and Vision Insurance Plans, and the other terms and conditions of coverage, benefits, and claims of the Medical, Dental, and Vision Insurance Plans are set forth in the Medical, Dental, and Vision Insurance Plans, not this Plan.

6.4 Opt Out Arrangement. The Employer may establish an Opt Out Arrangement for Eligible Employees who decline to enroll in the Medical Insurance Plan in an applicable memorandum of understanding, resolution, policy, or contract. If an Opt Out Arrangement is established, the Eligible Employee may elect to take a taxable cash amount (otherwise known as cash in lieu) established by the Employer in lieu of enrolling in the Medical Insurance Plan subject to any requirements or conditions set forth in an applicable memorandum of understanding, resolution, policy, or contract.

6.5 Eligible Opt Out Arrangement. The Employer may establish an Eligible Opt Out Arrangement under this Plan or in an applicable memorandum of understanding, resolution, policy, or contract as a condition to a Participant receiving a taxable cash amount (cash in lieu) established by the Employer in lieu of enrolling in the Medical Insurance Plan. The conditions 816
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that must be satisfied for an Eligible Opt Out Arrangement are as follows:
(a) The Participant and the Participant’s Tax Family must have (or will have) minimum essential coverage ("MEC") through another source (other than coverage in the individual market, whether or not obtained through Covered California); (b) A Tax Family means all individuals for whom the Participant reasonably expects to claim a personal exemption deduction for the taxable year(s) that cover the Participant's Plan Year to which the opt-out arrangement applies; (c) The Participant must provide reasonable evidence of the MEC for the Participant and their Tax Family for the applicable period. Reasonable evidence may include an attestation by the Participant;
(d) The Participant must provide the evidence/attestation every Plan Year; (e) The Participant must provide the evidence/attestation no earlier than a reasonable time before coverage starts (e.g. Open Enrollment). The evidence/attestation may also be provided within a reasonable time after the Plan Year starts; and (f) The cash in lieu payment cannot be made (and the Employer must not in fact make payment) if the Employer knows or has reason to know that the Participant or Tax Family member does not have the alternative coverage.

6.6 Medical Insurance Benefits; COBRA Contributions. Contributions for COBRA coverage for Medical Insurance Benefits may be paid on a pre-tax basis for current Employees receiving taxable compensation where COBRA coverage arises either (a) because the Employee ceases to be eligible because of a reduction of hours or (b) because the Employee's Dependent ceases to satisfy the eligibility requirements for coverage. For individuals who cease to be eligible because of retirement, termination of employment, or layoff, Contributions for COBRA coverage for Medical Insurance Benefits shall be paid on an after-tax basis (unless otherwise permitted by the Plan Administrator on a uniform and consistent basis). Contributions for COBRA coverage may not be prepaid from contributions in one Plan Year to provide coverage that extends into a subsequent Plan Year.
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ARTICLE VII. Health FSA Component

7.1 Health FSA Benefits. An Eligible Employee can elect to participate in the Health FSA Component by electing (a) to receive benefits in the form of reimbursements for Medical Care Expenses under one of the Health FSA coverage options described in Section 7.3(b) (Health FSA Benefits); and (b) to pay the Contribution for such Health FSA Benefits on a pre-tax Salary Reduction basis. Unless an exception applies (as described in Article XI), any such election is irrevocable for the duration of the Period of Coverage to which it relates.

Notwithstanding any other provision of this Plan, an Eligible Employee shall not be eligible for the Health FSA Component unless he or she is also eligible for the Medical Insurance Plan.

7.2 Contributions for Cost of Coverage of Health FSA Benefits. A Participant may direct Health Flex Contributions or non-Health Flex Contributions (if applicable) to Health FSA Benefits as provided by an Employer policy, memorandum of understanding, resolution, or other contract related to this Plan, subject to the limitations in Section 5.2(a). The annual Contribution for a Participant's Health FSA Benefits is equal to the annual benefit amount elected by the Participant, subject to the dollar limits set forth in Section 7.4(b).

7.3 Eligible Medical Care Expenses for Health FSA. Under the Health FSA Component, a Participant may receive reimbursement for certain Medical Care Expenses incurred during the Period of Coverage for which a current election is in force, or for which Health FSA Benefits are otherwise available as a result of a carryover as provided in Section 7.4. (a) Incurred. A Medical Care Expense is generally considered to be incurred at the time the medical care or service giving rise to the expense is furnished and not when the Participant is formally billed for, is charged for, or pays for the medical care. Certain limited exceptions may apply (e.g., for orthodontia expenses pursuant to an approved payment plan).
(b) Medical Care Expenses. "Medical Care Expenses" will vary depending on which Health FSA coverage option the Participant has elected. General-Purpose Health FSA 818
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Option. For purposes of this Option, Medical Care Expenses means expenses incurred by a Participant or his or her Spouse or Dependents for medical care, as defined in Code §213(d) (including expenses for menstrual care products as defined in Code §223(d)(2)(D)), but only to the extent that the expense has not been reimbursed through insurance or otherwise. If only a portion of a Medical Care Expense has been reimbursed elsewhere (e.g., because the Medical or Dental Insurance Plan imposes copayment or deductible limitations), then the Health FSA can reimburse the remaining portion of such Medical Care Expense if it otherwise meets the requirements of this Article VII.

Notwithstanding the foregoing, the term Medical Care Expenses does not include:
(1) premium payments for other health coverage, including but not limited to health insurance premiums for any other plan (whether or not sponsored by the Employer);
(2) cosmetic surgery or other similar procedures, unless the surgery or procedure is necessary to ameliorate a deformity arising from, or directly related to, a congenital abnormality, a personal injury resulting from an accident or trauma, or a disfiguring disease (for this purpose, "cosmetic surgery" means any procedure that is directed at improving the patient's appearance and does not meaningfully promote the proper function of the body or prevent or treat illness or disease); (3) any expense that is not legally provided under applicable state or federal law; or
(4) any other expense excluded under Appendix B or otherwise under the terms of this Plan.

The Plan Administrator may promulgate procedures regarding the eligibility of various expenses for reimbursement as Medical Care Expenses and may limit reimbursement of expenses described in such procedures.

7.4 Maximum and Minimum Benefits for Health FSA.
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(a) Maximum Reimbursement Available; Uniform Coverage. The maximum dollar amount elected by the Participant for reimbursement of Medical Care Expenses incurred during a Period of Coverage (reduced by prior reimbursements during the Period of Coverage and increased by any carryovers as provided in subsection (f) below) shall be available at all times during the Period of Coverage, regardless of the actual amounts credited to the Participant's Health FSA Account pursuant to Section 7.5.

Notwithstanding the foregoing, no reimbursements will be available for Medical Care Expenses incurred after participation in this Plan has terminated, unless the Participant has elected COBRA as provided in Section 7.8. Payment shall be made to the Participant in cash as reimbursement for Medical Care Expenses incurred during the Period of Coverage for which the Participant's election is effective (or for which carryovers are available as provided in subsection (f) below), provided that the other requirements of this Article VII have been satisfied.
(b) Maximum and Minimum Dollar Limits. The maximum annual benefit amount that a Participant may elect to receive under this Plan in the form of reimbursements for Medical Care Expenses incurred in any Period of Coverage shall be $3,200 in 2024 (and as adjusted from time to time pursuant to Code §125(i)), subject to Sections 7.4(c) and

7.5(c). The minimum annual benefit amount that a Participant may elect to receive under this Plan in the form of reimbursements for Medical Care Expenses incurred in any Period of Coverage shall be the amount established by the Plan Administrator.

Reimbursements due for Medical Care Expenses incurred by the Participant's Spouse or Dependents shall be charged against the Participant's Health FSA Account. (c) Changes; No Proration. For Plan Years beginning after 2024, the maximum and minimum dollar limit may be changed by the Plan Administrator through an applicable memorandum of understanding, resolution, policy, or contract and shall be communicated to Employees through the Election Form/Salary Reduction Agreement or another document, provided that the maximum dollar limit shall not exceed the maximum 820
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amount permitted under Code §125(i). If a Participant enters the Health FSA Component midyear or wishes to increase his or her election midyear as permitted under Section

11.3, then there will be no proration rule-i.e., the Participant may elect coverage up to the maximum dollar limit or may increase coverage to the maximum dollar limit, as applicable. Notwithstanding the foregoing, the Plan Administrator may limit the elections of a Participant who is terminated and rehired during the same Plan Year to the extent necessary to comply with the requirements of Code §125(i). (d) Effect on Maximum Benefits If Election Change Permitted. Any change in an election under Article XI (other than under Section 11.3(c) for FMLA leave) that increases contributions to the Health FSA Component also will change the maximum reimbursement benefits for the balance of the Period of Coverage commencing with the election change. Such maximum reimbursement benefits for the balance of the Period of Coverage shall be calculated by adding (1) the contributions (if any) made by the Participant as of the end of the portion of the Period of Coverage immediately preceding the change in election, to (2) the total contributions scheduled to be made by the Participant during the remainder of such Period of Coverage to the Health FSA Account, reduced by (3) all reimbursements made during the entire Period of Coverage. Any change in an election under Section 11.3(c) for FMLA leave will change the maximum reimbursement benefits in accordance with the regulations governing the effect of the FMLA on the operation of cafeteria plans.
(e) Reserved.
(f) Carryovers. Notwithstanding any other provision of the Plan to the contrary, unused amounts of up to $640 for 2024 (and as adjusted from time to time based on 20% of maximum amount under Code §125(i), as described in Section 7.4(f)(1) below) remaining in a Participant's Health FSA Account at the end of a Plan Year can be carried over and used to reimburse the Participant for Medical Care Expenses that are incurred during the next Plan Year, subject to the following conditions:
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(1) For Plan Years beginning after 2024, the maximum carryover amount may be changed by the Plan Administrator and shall be communicated to Employees through the Election Form/Salary Reduction Agreement or another document, provided that the maximum carryover amount shall not exceed 20% of the maximum amount permitted under Code §125(i). Carryover amounts may not be cashed out or converted to any other taxable or nontaxable benefit, and will not count toward the maximum dollar limit under subsections (b) and (c) above. (2) A Participant who is otherwise eligible for the Health FSA for a Plan Year but does not make a Health FSA election for that Plan Year may use any carryovers from the preceding Plan Year for Medical Care Expenses incurred in the current or preceding Plan Year (as further provided herein). However, an Employee or other individual must be a participant in the Health FSA as of the last day of a Plan Year in order to carry over unused amounts to the next Plan Year. Termination of employment and cessation of eligibility will result in a loss of carryover eligibility unless a COBRA election is made (see Section 7.8).
(3) Medical Care Expenses incurred during a Plan Year will be reimbursed first from a Participant's unused amounts credited for that Plan Year and then from amounts carried over from the preceding Plan Year. Carryovers that are used to reimburse a current Plan Year expense will reduce the amount available to pay the Participant's preceding Plan Year expenses, cannot exceed the maximum carryover amount, and will count against the maximum carryover amount.
(4) If unused Health FSA Amounts remain for a Plan Year after all reimbursements have been made for that Plan Year in excess of the amount that can be carried over under this subsection (f), the Participant will forfeit all rights with respect to those amounts, which will be subject to the Plan's provisions regarding forfeitures in Section 7.6(b).

7.5 Establishment of Health FSA Account. The Plan Administrator will establish and 822
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maintain a Health FSA Account with respect to each Participant for each Plan Year or other Period of Coverage for which the Participant elects to participate in the Health FSA Component, but it will not create a separate fund or otherwise segregate assets for this purpose.

The Account so established will merely be a recordkeeping account with the purpose of keeping track of contributions and determining forfeitures under Section 7.6. (a) Crediting of Accounts. A Participant's Health FSA Account for a Plan Year or other Period of Coverage will be credited periodically during such period with an amount equal to the Participant's Salary Reductions elected to be allocated to such Account, as well as any carryovers as provided in Section 7.4.
(b) Debiting of Accounts. A Participant's Health FSA Account for a Plan Year or other Period of Coverage will be debited for any reimbursement of Medical Care Expenses incurred during such period.
(c) Available Amount Not Based on Credited Amount. As described in Section 7.4, the amount available for reimbursement of Medical Care Expenses is the Participant's annual benefit amount, reduced by prior reimbursements for Medical Care Expenses incurred during the Plan Year or other Period of Coverage and increased by any carryovers, if applicable; it is not based on the amount credited to the Health FSA Account at a particular point in time except as provided in Section 7.4(f). Thus, a Participant's Health FSA Account may have a negative balance during a Plan Year or other Period of Coverage, but the aggregate amount of reimbursement shall in no event exceed the maximum dollar amount elected by the Participant under this Plan.

7.6 Forfeiture of Health FSA Accounts; Use-or-Lose Rule. (a) Use-or-Lose Rule. Except as otherwise provided in Section 7.4(f) (regarding carryovers), if any balance remains in the Participant's Health FSA Account for a Period of Coverage after all reimbursements have been made for the Period of Coverage, then such balance shall not be carried over to reimburse the Participant for Medical Care 823
28 12545896.4 BA060-048
Expenses incurred during a subsequent Plan Year. The Participant shall forfeit all rights with respect to such balance.
(b) Use of Forfeitures. All forfeitures under this Plan shall be used as follows: first, to offset any losses experienced by the Employer during the Plan Year as a result of making reimbursements (i.e., providing Health FSA Benefits) with respect to all Participants in excess of the Contributions paid by such Participants through Salary Reductions; second, to reduce the cost of administering the Health FSA Component during the Plan Year or the subsequent Plan Year (all such administrative costs shall be documented by the Plan Administrator); and third, to provide increased benefits or compensation to Participants in subsequent years in any weighted or uniform fashion that the Plan Administrator deems appropriate, consistent with applicable regulations. In addition, any Health FSA Account benefit payments that are unclaimed (e.g., uncashed benefit checks) by the close of the Plan Year following the Period of Coverage in which the Medical Care Expense was incurred shall be forfeited and applied as described above.

7.7 Reimbursement Claims Procedure for Health FSA.
(a) Timing. Within 30 days after receipt by the Plan Administrator of a reimbursement claim from a Participant, the Employer will reimburse the Participant for the Participant's Medical Care Expenses (if the Plan Administrator approves the claim), or the Plan Administrator will notify the Participant that his or her claim has been denied. This time period may be extended by an additional 15 days for matters beyond the control of the Plan Administrator, including in cases where a reimbursement claim is incomplete. The Plan Administrator will provide written notice of any extension, including the reasons for the extension, and will allow the Participant 45 days in which to complete the previously incomplete reimbursement claim.
(b) Claims Substantiation. A Participant who has elected to receive Health FSA Benefits for a Period of Coverage may apply for reimbursement by submitting a request in writing to the Plan Administrator in such form as the Plan Administrator may prescribe, by no 824
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later than the April 30 following the close of the Plan Year in which the Medical Care Expense was incurred (except that for a Participant who ceases to be eligible to participate, this must be done no later than 90 days after the date that eligibility ceases, as described in Section 7.8) setting forth:
• the person(s) on whose behalf Medical Care Expenses have been incurred; • the nature and date of the Medical Care Expenses so incurred; the amount of the requested reimbursement;
• a statement that such Medical Care Expenses have not otherwise been reimbursed and that the Participant will not seek reimbursement through any other source; and • other such details about the expenses that may be requested by the Plan Administrator in the reimbursement request form or otherwise (e.g., a statement from a medical practitioner that the expense is to treat a specific medical condition, documentation that a medicine or drug was prescribed, or a more detailed certification from the Participant).

The application shall be accompanied by bills, invoices, or other statements from an independent third party showing that the Medical Care Expenses have been incurred and showing the amounts of such Expenses, along with any additional documentation that the Plan Administrator may request. Except for the final reimbursement claim for a Participant's Health FSA Account for a Plan Year or other Period of Coverage, no claim for reimbursement may be made unless and until the aggregate claim for reimbursement is at least the minimum amount (if any) established by the Plan Administrator. If the Health FSA is accessible by an electronic payment card (e.g., debit card, credit card, or similar arrangement), the Participant will be required to comply with substantiation procedures established by the Plan Administrator in accordance with Section 7.11 and applicable IRS guidance regarding electronic payment card programs. (c) Claims Denied. For reimbursement claims that are denied, see the appeals procedure in Article XII.
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(d) Claims Ordering; No Reprocessing. All claims for reimbursement under the Health FSA Component will be paid in the order in which they are approved. Once paid, a claim will not be reprocessed or otherwise recharacterized solely for the purpose of paying it (or treating it as paid) from amounts attributable to a different Plan Year or Period of Coverage.

7.8 Reimbursements From Health FSA After Termination of Participation; COBRA.

When a Participant ceases to be a Participant under Section 3.2, the Participant's Salary Reductions and election to participate will terminate. Except as otherwise provided in this Section 7.8, the Participant will not be able to receive reimbursements for Medical Care Expenses incurred after the end of the day on which the Participant's employment terminates or the Participant otherwise ceases to be eligible. However, such Participant (or the Participant's estate) may claim reimbursement for any Medical Care Expenses incurred during the Period of Coverage prior to the date that the Participant ceases to be eligible, provided that the Participant (or the Participant's estate) files a claim within 90 days after the date that the Participant ceases to be a Participant.

Notwithstanding any provision to the contrary in this Plan, to the extent required by COBRA, a Participant and his or her Spouse and Dependents, as applicable, whose coverage terminates under the Health FSA Component because of a COBRA qualifying event (and who is a qualified beneficiary as defined under COBRA) shall be given the opportunity to continue on a self-pay basis the same coverage that he or she had under the Health FSA Component the day before the qualifying event for the periods prescribed by COBRA. Specifically, such individuals will be eligible for COBRA continuation coverage only if, under Section 7.5, they have a positive Health FSA Account balance at the time of a COBRA qualifying event (taking into account all claims submitted before the date of the qualifying event). Such individuals will be notified if they are eligible for COBRA continuation coverage. If COBRA is elected, it will be available only for the remainder of the Plan Year in which the qualifying event occurs; such COBRA coverage for the Health FSA Component will cease at the end of the Plan Year and 826
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cannot be continued for the next Plan Year, except that qualified beneficiaries who continue coverage through the end of the Plan Year may carry over up to the maximum carryover amount of unused Health FSA amounts remaining at the end of such Plan Year in accordance with the Plan's provisions regarding Health FSA carryovers (see Section 7.4). Such continuation coverage shall be subject to all conditions and limitations under COBRA, except that it shall not be terminated early for after-acquired group health coverage or Medicare entitlement.

Contributions for coverage for Health FSA Benefits may be paid on a pre-tax basis for current Employees receiving taxable compensation (as may be permitted by the Plan Administrator on a uniform and consistent basis, but may not be prepaid from contributions in one Plan Year to provide coverage that extends into a subsequent Plan Year) where COBRA coverage arises either (a) because the Employee ceases to be eligible because of a reduction of hours or (b) because the Employee's Dependent ceases to satisfy the eligibility requirements for coverage.

For all other individuals (e.g., Employees who cease to be eligible because of retirement, termination of employment, or layoff), Contributions for COBRA coverage for Health FSA Benefits shall be paid on an after-tax basis (unless permitted otherwise by the Plan Administrator on a uniform and consistent basis, but may not be prepaid from contributions in one Plan Year to provide coverage that extends into a subsequent Plan Year).

7.9 Electronic Payment Cards. If the Employer allows the Health FSA to be accessed by an electronic payment card (e.g., debit card, credit card, or similar arrangement), Participants will be required to comply with substantiation procedures and all other provisions established by the Plan Administrator in accordance with applicable IRS guidance regarding electronic payment card programs.

ARTICLE VIII. Life Insurance

8.1 Benefits. An Eligible Employee can elect to participate in Life Insurance Plans.

Notwithstanding any other provision in this Plan, the Life Insurance Benefits are subject to the terms and conditions of the Life Insurance Plans, and no changes can be made with respect to 827
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such Life Insurance Benefits under this Plan (such as midyear changes in election) if such changes are not permitted under the Life Insurance Plans. An Eligible Employee can elect Life Insurance Benefits by electing to pay for their share of the Contributions for the Life Insurance Benefits on a pre-tax Salary Reduction up to a maximum described in Section 8.4; or elect no Benefits.

8.2 Contributions for Cost of Coverage. The annual Employer Contribution for a Participant's Life Insurance Benefits is equal to the amount as set by the Employer, as described in an applicable memorandum of understanding, resolution, policy, contract, or other document, which may or may not be the same amount charged by the Life Insurance Plan or insurance carrier.

8.3 Benefits Provided Under the Life Insurance Plans. The types and amounts of Life Insurance Benefits, the requirements for participating in the Life Insurance Plans, and the other terms and conditions of coverage, benefits, and claims of the Life Insurance Plans are set forth in the Life Insurance Plans, not this Plan.

8.4 Maximum Excludable Amounts. Pursuant to section 79 of the Internal Revenue Code, the employer-paid premium cost of a group-term life insurance policy on the life of the employee shall be included as taxable gross income, but only to the extent that such cost exceeds the sum of:
(1) the cost of $50,000 of such insurance, and
(2) the amount (if any) paid by the employee toward the purchase of such insurance.

The cost of the employer-paid premiums paid by the employer on the first $50,000 of group-term life insurance through a nondiscriminatory plan may be excluded from the employee’s income.

A taxable fringe benefit arises if coverage exceeds $50,000 and the policy is considered carried directly or indirectly by the employer. A policy is considered carried directly or indirectly by the employer if:
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(1) The employer pays any cost of the life insurance, or (2) The employer arranges for the premium payments and the premiums paid by at least one employee subsidize those paid by at least one other employee (the “straddle” rule).

The determination of whether the premium charges straddle the costs is based on the IRS Premium Table rates, not the actual cost.
“Group-term life insurance” has the meaning defined in section 1.79-1, title 26 of the Code of Federal Regulations. Other forms of life insurance that are not group-term life insurance, such as voluntary permanent life insurance, are not excludable from tax.

The cost of employer-paid premiums for group-term life insurance on the life of an employee’s spouse or dependent is not taxable to the employee if the face amount of the coverage does not exceed $2,000. This coverage is excluded as a de minimis fringe benefit.

ARTICLE IX. DCAP Component

9.1 DCAP Benefits. An Eligible Employee can elect to participate in the DCAP Component by electing to receive benefits in the form of reimbursements for Dependent Care Expenses and to pay the Contribution for such benefits on a pre-tax Salary Reduction basis. Unless an exception applies (as described in Article XI), such election of DCAP Benefits is irrevocable for the duration of the Period of Coverage to which it relates.

9.2 Contributions for Cost of Coverage for DCAP Benefits. The annual Contribution for a Participant's DCAP Benefits is equal to the annual benefit amount elected by the Participant, subject to the dollar limits set forth in Section 9.4(b). (For example, if the maximum $5,000 annual benefit amount is elected, then the annual Contribution amount is also $5,000.)

9.3 Eligible Dependent Care Expenses. Under the DCAP Component, a Participant may receive reimbursement for Dependent Care Expenses incurred during the Period of Coverage for which an election is in force. In addition, certain individuals may receive reimbursement for 829
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Dependent Care Expenses incurred during the Grace Period immediately following the close of a Plan Year from amounts remaining in their DCAP Accounts for that Plan Year in accordance with Section 9.4(e).
(a) Incurred. A Dependent Care Expense is incurred at the time the Qualifying Dependent Care Services giving rise to the expense is furnished, not when the Participant is formally billed for, is charged for, or pays for the Qualifying Dependent Care Services (e.g., services rendered for the month of June are not fully incurred until June 30 and cannot be reimbursed in full until then).
(b) Dependent Care Expenses. "Dependent Care Expenses" are expenses that are considered to be employment-related expenses under Code §21(b)(2) (relating to expenses for the care of a Qualifying Individual necessary for gainful employment of the Employee and Spouse, if any, and expenses for incidental household services), if paid for by the Eligible Employee to obtain Qualifying Dependent Care Services-provided, however, that this term shall not include any expenses for which the Participant or other person incurring the expense is reimbursed for the expense through insurance or any other plan. If only a portion of a Dependent Care Expense has been reimbursed elsewhere (e.g., because the Spouse's DCAP imposes maximum benefit limitations), the DCAP can reimburse the remaining portion of such Expense if it otherwise meets the requirements of this Article IX.
(c) Qualifying Dependent Care Services. "Qualifying Dependent Care Services" means services that: (1) relate to the care of a Qualifying Individual that enable the Participant and his or her Spouse to remain gainfully employed after the date of participation in the DCAP Component and during the Period of Coverage; and (2) are performed- • in the Participant's home; or
• outside the Participant's home for (1) the care of a Participant's qualifying child who is under age 13; or (2) the care of any other Qualifying Individual who regularly spends at least eight hours per day in the Participant's household. In addition, if the 830
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expenses are incurred for services provided by a dependent care center (i.e., a facility (including a day camp) that provides care for more than six individuals (other than individuals residing at the facility) on a regular basis and receives a fee, payment, or grant for such services), then the center must comply with all applicable state and local laws and regulations.
(d) Exclusion. Dependent Care Expenses do not include amounts paid to:
• an individual whom a Participant or his or her Spouse can claim as a dependent for federal income tax purposes;
• a Participant's Spouse;
• a Participant's child (as defined in Code §152(f)(1)) who is under 19 years of age at the end of the year in which the expenses were incurred; or • a parent of a Participant's under age 13 qualifying child as defined in Code §152(a)(1) (e.g., a former spouse who is the child's noncustodial parent).

9.4 Maximum and Minimum Benefits for DCAP.
(a) Maximum Reimbursement Available. The maximum dollar amount elected by the Participant for reimbursement of Dependent Care Expenses incurred during a Period of Coverage (reduced by prior reimbursements during the Period of Coverage) shall only be available during the Period of Coverage to the extent of the actual amounts credited to the Participant's DCAP Account pursuant to Section 9.5. (No reimbursement will be made to the extent that such reimbursement would exceed the balance in the Participant's Account (that is, the year-to-date amount that has been withheld from the Participant's Compensation for reimbursement for Dependent Care Expenses for the Period of Coverage, less any prior reimbursements).) Payment shall be made to the Participant in cash as reimbursement for Dependent Care Expenses incurred during the Period of Coverage for which the Participant's election is effective (or during a Grace Period, if applicable under Section 9.4(e)), provided that the other requirements of this Article IX have been satisfied.
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(b) Maximum and Minimum Dollar Limits. The maximum annual benefit amount that a Participant may elect to receive under this Plan in the form of reimbursements for Dependent Care Expenses incurred in any Period of Coverage shall be $5,000 or, if lower, the maximum amount that the Participant has reason to believe will be excludable from his or her income at the time the election is made as a result of the applicable statutory limit for the Participant. The applicable statutory limit for a Participant is the smallest of the following amounts:
• the Participant's Earned Income for the calendar year; • the Earned Income of the Participant's Spouse for the calendar year (for this purpose, a Spouse will be deemed to have earned income of at least $250 ($500 if the Participant has two or more Qualifying Individuals) for each month in which the Spouse is either (1) physically or mentally incapable of self-care (provided that the Spouse must have the same principal place of abode as the Participant for more than one-half of such year), or (2) a Student); or
• either $5,000 or $2,500 for the calendar year, as applicable:
(1) $5,000 for the calendar year if one of the following applies:
- the Participant is married and files a joint federal income tax return; - the Participant is married, files a separate federal income tax return, and meets the following conditions: (1) the Participant maintains as his or her home a household that constitutes (for more than half of the taxable year) the principal abode of a Qualifying Individual (i.e., the Dependent for whom the Participant is eligible to receive reimbursements under the DCAP); (2) the Participant furnishes over half of the cost of maintaining such household during the taxable year; and (3) during the last six months of the taxable year, the Participant's Spouse is not a member of such household; or - the Participant is single or is the head of the household for federal income tax purposes; or
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(2) $2,500 for the calendar year if the Participant is married and files a separate federal income tax return under circumstances other than those described above.

The minimum annual benefit amount that a Participant may elect to receive under this Plan in the form of reimbursements for Dependent Care Expenses incurred in any Period of Coverage shall be the minimum amount (if any) established by the Plan Administrator. (c) Changes; No Proration. For subsequent Plan Years, the maximum and minimum dollar limit may be changed by the Plan Administrator and shall be communicated to Employees through the Election Form/Salary Reduction Agreement or another document.

If a Participant enters the DCAP Component midyear or wishes to increase his or her election midyear as permitted under Section 11.3, then there will be no proration rule-i.e., the Participant may elect coverage up to the maximum dollar limit or may increase coverage up to the maximum dollar limit, as applicable. (d) Effect on Maximum Benefits If Election Change Permitted. Any change in an election under Article XI affecting annual contributions to the DCAP Component also will change the maximum reimbursement benefits for the balance of the Period of Coverage (commencing with the election change), as further limited by Sections 9.4(a) and (b). Such maximum reimbursement benefits for the balance of the Period of Coverage shall be calculated by adding (1) the contributions, if any, made by the Participant as of the end of the portion of the Period of Coverage immediately preceding the change in election, to (2) the total contributions scheduled to be made by the Participant during the remainder of such Period of Coverage to the DCAP Account, reduced by (3) reimbursements during the Period of Coverage. (e) Grace Periods; Special Rules for Claims Incurred During a Grace Period.

Notwithstanding any contrary provision in this Plan and subject to the conditions of Sections 9.4(b), an individual may be reimbursed for Dependent Care Expenses incurred during a Grace Period from amounts remaining in his or her DCAP Account at the end of the Plan Year to which that Grace Period relates ("Prior Plan Year DCAP Amounts") if 833
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he or she Is a Participant in the Plan with DCAP coverage that is in effect on the last day of that Plan Year.
• Prior Plan Year DCAP Amounts may not be cashed out or converted to any other taxable or nontaxable benefit. For example, Prior Plan Year DCAP Amounts may not be used to reimburse Medical Care Expenses.
• Dependent Care Expenses incurred during a Grace Period and approved for reimbursement in accordance with Section 9.7 will be reimbursed first from any available Prior Plan Year DCAP Amounts and then from any amounts that are available to reimburse expenses that are incurred during the current Plan Year. An individual's Prior Plan Year DCAP Amounts will be debited for any reimbursement of Dependent Care Expenses incurred during the Grace Period that is made from such Prior Plan Year DCAP Amounts.
• Claims for reimbursement of Dependent Care Expenses incurred during a Grace Period must be submitted no later than the April 30 following the close of the Plan Year to which the Grace Period relates in order to be reimbursed from Prior Plan Year DCAP Amounts. Any Prior Plan Year DCAP Amounts that remain after all reimbursements have been made for the Plan Year and its related Grace Period shall not be carried over to reimburse the Participant for expenses incurred in any subsequent period. The Participant will forfeit all rights with respect to these amounts, which will be subject to the Plan's provisions regarding forfeitures in Section 9.6.

9.5 Establishment of DCAP Account. The Plan Administrator will establish and maintain a DCAP Account with respect to each Participant who has elected to participate in the DCAP Component, but it will not create a separate fund or otherwise segregate assets for this purpose.

The Account so established will merely be a recordkeeping account with the purpose of keeping track of contributions and determining forfeitures under Section 9.6. (a) Crediting of Accounts. A Participant's DCAP Account will be credited periodically 834
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during each Period of Coverage with an amount equal to the Participant's Salary Reductions elected to be allocated to such Account.
(b) Debiting of Accounts. A Participant's DCAP Account will be debited during each Period of Coverage for any reimbursement of Dependent Care Expenses incurred during the Period of Coverage (or for reimbursement of Dependent Care Expenses incurred during any Grace Period to which he or she is entitled as provided in Section 9.4(e)). (c) Available Amount Is Based on Credited Amount. As described in Section 9.4, the amount available for reimbursement of Dependent Care Expenses may not exceed the year-to-date amount credited to the Participant's DCAP Account, less any prior reimbursements for Dependent Care Expenses incurred during the Plan Year (or during the Grace Period, if applicable)-i.e., it is based on the amount credited to the DCAP Account at a particular point in time. Thus, a Participant's DCAP Account may not have a negative balance.

9.6 Forfeiture of DCAP Accounts; Use-It-or-Lose-It Rule. Except as otherwise provided in Section 9.4(e) (regarding certain individuals who may be reimbursed from Prior Plan Year DCAP Amounts for expenses incurred during a Grace Period), if any balance remains in the Participant's DCAP Account for a Period of Coverage after all reimbursements have been made for the Period of Coverage, then such balance shall not be carried over to reimburse the Participant for Dependent Care Expenses incurred during a subsequent Plan Year. The Participant shall forfeit all rights with respect to such balance. All forfeitures under this Plan shall be used as follows: first, to offset any losses experienced by the Employer during the Plan Year as a result of making reimbursements (i.e., providing DCAP Benefits) with respect to all Participants in excess of the Contributions paid by such Participants through Salary Reductions; second, to reduce the cost of administering the DCAP during the Plan Year or the subsequent Plan Year (all such administrative costs shall be documented by the Plan Administrator); and third, to provide increased benefits or compensation to Participants in subsequent years in any weighted or uniform fashion the Plan Administrator deems appropriate, consistent with 835
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applicable regulations. In addition, any DCAP Account benefit payments that are unclaimed (e.g., uncashed benefit checks) by the close of the Plan Year following the Period of Coverage in which the Dependent Care Expense was incurred shall be forfeited and applied as described above.

9.7 Reimbursement Claims Procedure for DCAP.
(a) Timing. Within 30 days after receipt by the Plan Administrator of a reimbursement claim from a Participant, the Employer will reimburse the Participant for the Participant's Dependent Care Expenses (if the Plan Administrator approves the claim), or the Plan Administrator will notify the Participant that his or her claim has been denied. This time period may be extended by an additional 15 days for matters beyond the control of the Plan Administrator, including in cases where a reimbursement claim is incomplete. The Plan Administrator will provide written notice of any extension, including the reasons for the extension, and will allow the Participant 45 days in which to complete the previously incomplete reimbursement claim.
(b) Claims Substantiation. A Participant who has elected to receive DCAP Benefits for a Period of Coverage may apply for reimbursement by submitting a request for reimbursement in writing to the Plan Administrator in such form as the Plan Administrator may prescribe, by no later than the April 30 following the close of the Plan Year in which the Dependent Care Expense was incurred (except for a Participant who ceases to be eligible to participate, by no later than 90 days after the date that eligibility ceases, as described in Section 9.8), setting forth:
• the person(s) on whose behalf Dependent Care Expenses have been incurred; • the nature and date of the Expenses so incurred;
• the amount of the requested reimbursement;
• the name of the person, organization, or entity to whom the Expense was or is to be paid, and taxpayer identification number (Social Security number, if the recipient is a person);
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• a statement that such Expenses have not otherwise been reimbursed and that the Participant will not seek reimbursement through any other source; • the Participant's certification that he or she has no reason to believe that the reimbursement requested, added to his or her other reimbursements to date for Dependent Care Expenses incurred during the same calendar year, will exceed the applicable statutory limit for the Participant as described in Section 9.4(b); and • other such details about the expenses that may be requested by the Plan Administrator in the reimbursement request form or otherwise (e.g., a more detailed certification from the Participant).

The application shall be accompanied by bills, invoices, or other statements from an independent third party showing that the Dependent Care Expenses have been incurred and showing the amounts of such Expenses, along with any additional documentation that the Plan Administrator may request. Except for the final reimbursement claim for a Period of Coverage, no claim for reimbursement may be made unless and until the aggregate claim for reimbursement is at least $25. (c) Claims Denied. For reimbursement claims that are denied, see the appeals procedure in Article XII.

9.8 Reimbursements From DCAP After Termination of Participation. When a Participant ceases to be a Participant under Section 3.2, the Participant's Salary Reductions and election to participate will terminate. Except as otherwise provided in Section 9.4(e) (regarding certain individuals who may be reimbursed from Prior Plan Year DCAP Amounts for expenses incurred during a Grace Period), the Participant will not be able to receive reimbursements for Dependent Care Expenses incurred after the end of the day on which the Participant's employment terminates or the Participant otherwise ceases to be eligible, with one exception:
such Participant (or the Participant's estate) may claim reimbursement for any Dependent Care Expenses incurred in the month following termination of employment or other cessation of eligibility if such month is in the current Plan Year, provided that the Participant (or the 837
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Participant's estate) files a claim within 90 days after the date that the Participant's employment terminates or the Participant otherwise ceases to be eligible. In addition, such Participant (or the Participant's estate) may claim reimbursement for any Dependent Care Expenses incurred during the Period of Coverage prior to the date that the Participant ceases to be eligible (or during any Grace Period to which he or she is entitled as provided in Section 9.4(e)), provided that the Participant (or the Participant's estate) files a claim within 90 days after the date that the Participant ceases to be a Participant.

9.9 Report to DCAP Participants. On or before January 31 of each year, the Plan Administrator shall furnish to each Participant who has received reimbursement for Dependent Care Expenses during the prior calendar year a written statement showing the Dependent Care Expenses paid during such year with respect to the Participant, or showing the Salary Reductions for the year for the DCAP Component, as the Plan Administrator deems appropriate. This may be done using Box 10 on the Participants Form W-2.

ARTICLE X. HIPAA Provisions for Health FSA

10.1 General. As a HIPAA Health Plan, the Health FSA shall comply with the standards for privacy of protected health information as set forth in the Privacy Rule, the security standards for the protection of Electronic personal health information (“PHI”) as set forth in the Security Rule, and the notification requirements for Breaches of Unsecured PHI under the Breach Notification Rule.

10.2 Definitions. For purposes of this Article, the following definitions shall apply:
(a) "Breach" shall mean the acquisition, access, use, or disclosure of an individual's PHI in a manner not permitted under the Privacy Rule. A Breach shall be presumed unless the Plan determines there is a low probability that the PHI has been compromised. A Breach does not include: (1) an unintentional acquisition, access, or use of PHI by a workforce member or person acting under the authority of a covered entity or business associate, if such acquisition, access, or use was in good faith and within the scope of authority and 838
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does not result in a further impermissible use or disclosure; (2) an inadvertent disclosure by a person who is authorized to access PHI to another person authorized to access PHI at the same covered entity or business associate or organized health care arrangement, and the information received is not further used or disclosed in a manner not permitted under the Privacy Rule; or (3) a disclosure of PHI where a covered entity or business associate has a good faith belief that an unauthorized person to whom the disclosure was made would not reasonably have been able to retain such information. (b) "Breach Notification Rule" means the regulations issued under HIPAA set forth in subpart D of 45 CFR Part 164.
(c) "Electronic Protected Health Information" or "Electronic PHI" means PHI that is transmitted by or maintained in electronic media.
(d) "Health Care Operations" is as defined under 45 CFR §164.501. (e) "HIPAA Health Plan," as defined under 45 CFR §160.103, means an individual or group plan that provides, or pays the cost of, medical care, and includes those plans and arrangements listed in 45 CFR §160.103.
(f) "Payment" is as defined under 45 CFR §164.501, and means activities undertaken by a HIPAA Health Plan to obtain contributions or to determine or fulfill its responsibility for coverage and provision of benefits, or to obtain or provide reimbursement for the provision of health care.
(g) "Privacy Policy" means the Employer HIPAA Privacy Policy. (h) "Privacy Rule" means the regulations issued under HIPAA set forth in subpart E of 45 CFR Part 164.
(i) "Protected Health Information" or "PHI" means individually identifiable health information that (1) relates to the past, present, or future physical or mental condition of a current or former Participant, Spouse, or Dependent, provision of health care to a Participant, Spouse, or Dependent, or payment for such health care; (2) can either identify the Participant, Spouse, or Dependent, or there is a reasonable basis to believe the 839
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information can be used to identify the Participant, Spouse, or Dependent; and (3) is received or created by or on behalf of the Health FSA.
(j) "Responsible Employee" means an employee (including a contract, temporary, or leased employee) of the Health FSA or of the Employer whose duties (1) require that the employee have access to PHI for purposes of Payment or Health Care Operations; or (2) make it likely that the employee will receive or have access to PHI. Persons designated as Responsible Employees are described in Section 10.3.
(k) "Security Incident," as defined under 45 CFR §164.304, means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system. (l) "Security Rule" means the regulations issued under HIPAA set forth in subpart C of 45 CFR Part 164.

10.3 Responsible Employees. Only Responsible Employees shall be permitted to use, disclose, create, receive, access, maintain, or transmit PHI or Electronic PHI on behalf of a Health FSA.

The use or disclosure of PHI or Electronic PHI by Responsible Employees shall be restricted to the Health FSA administration functions that the Employer performs on behalf of a Health FSA pursuant to Section 10.4.
(a) Employer employees who perform the following functions on behalf of the Health FSA are Responsible Employees: (1) claims determination and processing functions; (2) Health FSA vendor relations functions; (3) benefits education and information functions; (4) Health FSA administration activities; (5) legal department activities; (6) Health FSA compliance activities; (7) information systems support activities; (8) internal audit functions; and (9) human resources functions.
(b) In addition to those individuals described in subsection (a), the Health FSA HIPAA privacy official and security official, and Employer employees to whom the Health FSA HIPAA privacy official and security official have delegated any of the following responsibilities, shall also be Responsible Employees: (1) implementation, interpretation, 840
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and amendment of the Privacy Policy; (2) Privacy Rule, Breach Notification Rule, or Security Rule training for Employer employees; (3) investigation of and response to complaints by Participants, Spouses, Dependents, and/or employees; (4) preparation, maintenance, and distribution of the health FSA's privacy notice; (5) response to requests by Participants, Spouses, or Dependents to inspect or copy PHI; (6) response to requests by Participants, Spouses, or Dependents to restrict the use or disclosure of their PHI; (7) response to requests by Participants, Spouses, or Dependents to receive communications of their PHI by alternate means or in an alternate manner; (8) amendment and response to requests to amend the PHI of Participants, Spouses, or Dependents; (9) response to requests by Participants, Spouses, or Dependents for an accounting of disclosures of their PHI; (10) response to requests for information by the Department of Health and Human Services; (11) approval of disclosures to law enforcement or to the military for government purposes; (12) maintenance of records and other documentation required by the Privacy Rule, Breach Notification Rule, or Security Rule; (13) negotiation of Privacy Rule, Breach Notification Rule, and Security Rule provisions and/or reasonable security provisions into contracts with third-party service providers; (14) maintenance of Health FSA PHI or Electronic PHI security documentation; or (15) approval of access to Electronic PHI by Participants, Spouses, or Dependents.

10.4 Permitted Uses and Disclosures. Responsible Employees may access, request, receive, use, disclose, create, and/or transmit PHI only to perform certain permitted and required functions on behalf of the Health FSA, consistent with the Privacy Policy. This includes:
(a) uses and disclosures for the Health FSA's own Payment and Health Care Operations functions;
(b) uses and disclosures for another HIPAA Health Plan's Payment and Health Care Operations functions;
(c) disclosures to a health care provider, as defined under 45 CFR §160.103, for the health care provider's treatment activities;
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(d) disclosures to the Employer, acting in its role as Plan sponsor, of (1) summary health information for purposes of obtaining health insurance coverage or premium bids for HIPAA Health Plans or for making decisions to modify, amend, or terminate a HIPAA Health Plan; or (2) enrollment or disenrollment information; (e) disclosures of a Participant's, Spouse's, or Dependent's PHI to the Participant or the Dependent or his or her personal representative, as defined under 45 CFR §164.502(g); (f) disclosures to a Participant's, Spouse's, or Dependent's family members or friends involved in the Participant's, Spouse's, or Dependent's health care or payment for the Participant's, Spouse's, or Dependent's health care, or to notify a Participant's, Spouse's, or Dependent's family in the event of an emergency or disaster relief situation; (g) uses and disclosures to comply with workers' compensation laws; (h) uses and disclosures for legal and law-enforcement purposes, such as to comply with a court order;
(i) disclosures to the Secretary of Health and Human Services to demonstrate the Health FSA's compliance with the Privacy Rule, Security Rule, or Breach Notification Rule; (j) uses and disclosures for other governmental purposes, such as for national security purposes;
(k) uses and disclosures for certain health and safety purposes, such as to prevent or lessen a threat to public health, to report suspected cases of abuse, neglect, or domestic violence, or relating to a claim for public benefits or services; (l) uses and disclosures to identify a decedent or cause of death, or for tissue-donation purposes;
(m) uses and disclosures required by other applicable laws; and (n) uses and disclosures pursuant to the Participant's authorization that satisfies the requirements of 45 CFR §164.508.

10.5 Prohibited Uses and Disclosures. Notwithstanding anything in the Plan to the contrary, use or disclosure of Protected Health Information is prohibited in the following situations. 842
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(a) Genetic Information. Use or disclosure of Protected Health Information that is Genetic Information about an individual for underwriting purposes shall not be a permitted use or disclosure. The term "underwriting purposes" includes determining eligibility or benefits, computation of premium or contribution amounts, or the creation, renewal, or replacement of a contract of health insurance. (b) Employment-Related Actions. Use or disclosure of Protected Health Information for the purpose of employment-related actions or decisions shall not be a permitted use or disclosure.
(c) Other Benefits. Use or disclosure of Protected Health Information in connection with any other benefit or employee benefit plan of the Employer, except as expressly permitted in Section 10.4, shall not be a permitted use or disclosure.

10.6 Certification Requirement. The Health FSA shall disclose PHI, including Electronic PHI, to Responsible Employees only upon receipt of a certification by the Employer that the Employer agrees:
(a) not to use or further disclose PHI other than as permitted or required by this Article and the Privacy Policy or as required by law;
(b) to take reasonable steps to ensure that any agents to whom the Employer provides PHI or Electronic PHI received from the Health FSA agree: (1) to the same restrictions and conditions that apply to the Employer with respect to such PHI; and (2) to implement reasonable and appropriate security measures to protect such Electronic PHI; (c) not to use or disclose PHI for employment-related actions and decisions or in connection with any other benefit or employee benefit plan of the Employer other than another Health Plan;
(d) to report to the Health FSA any use or disclosure of PHI, including Electronic PHI, that is inconsistent with the uses or disclosures described in Section 10.4, or any Security Incident, of which the Employer becomes aware;
(e) to make available PHI for inspection and copying in accordance with 45 CFR 843
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§164.524;
(f) to make available PHI for amendment, and to incorporate any amendments to PHI, in accordance with 45 CFR §164.526;
(g) to make available PHI required to provide an accounting of disclosures in accordance with 45 CFR §164.528;
(h) to make its internal practices, books, and records relating to the use and disclosure of PHI and Electronic PHI, received on behalf of the Health FSA, available to the Secretary of Health and Human Services for purposes of determining compliance by the Health FSA with the Privacy Rule, the Breach Notification Rule, or the Security Rule; (i) if feasible, to return or destroy all PHI and Electronic PHI received from the Health FSA that the Employer still maintains in any form and retain no copies of such PHI and Electronic PHI when no longer needed for the purpose for which disclosure was made, except that, if such return or destruction is not feasible, limit further uses and disclosures to those purposes that make the return or destruction of PHI and Electronic PHI infeasible;
(j) to take reasonable steps to ensure that there is adequate separation between the Health FSA and the Employer's activities in its role as Health FSA sponsor and employer, and that such adequate separation is supported by reasonable and appropriate security measures; and
(k) to implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of any Electronic PHI that the Employer creates, receives, maintains, or transmits on behalf of the FSA.

10.7 Mitigation. In the event of noncompliance with any of the provisions set forth in this Article:
(a) The HIPAA privacy official or security official, as appropriate, shall address any complaint promptly and confidentially. The HIPAA privacy official or security official, as appropriate, first will investigate the complaint and document the investigation efforts 844
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and findings.
(b) If PHI, including Electronic PHI, has been used or disclosed in violation of the Privacy Policy or inconsistent with this Article, the HIPAA privacy official and/or the security official, as appropriate, shall take immediate steps to mitigate any harm caused by the violation and to minimize the possibility that such a violation will recur. (c) If a Responsible Employee or other Employer employee is found to have violated the Privacy Policy and/or policy developed under the Security Rule, such personnel shall be subject to disciplinary action up to and including termination.

10.8 Breach Notification. Following the discovery of a Breach of unsecured PHI, the Health FSA shall notify each individual whose unsecured PHI has been, or is reasonably believed to have been, accessed, acquired, or disclosed as a result of a Breach, in accordance with 45 CFR §164.404, and shall notify the Secretary of Health and Human Services in accordance with 45 CFR §164.408. For a breach of unsecured PHI involving more than 500 residents of a State or jurisdiction, the Health FSA shall notify the media in accordance with 45 CFR §164.406. "Unsecured PHI" means PHI that is not secured through the use of a technology or methodology specified in regulations or other guidance issued by the Secretary of Health and Human Services.

ARTICLE XI. Irrevocability of Elections; Exceptions

11.1 Irrevocability of Elections. A Participant's election under the Plan, including its Components, is irrevocable for the duration of the Period of Coverage to which it relates, except as provided in this Article XI. In other words, unless an exception applies, the Participant may not change any elections for the duration of the Period of Coverage regarding:
(a) participation in this Plan;
(b) Salary Reduction amounts; or
(c) election of particular Benefit Package Options.

11.2 Procedure for Making New Election If Exception to Irrevocability Applies 845
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(a) Timeframe for Making New Election. A Participant (or an Eligible Employee who, when first eligible under Section 3.1 or during the Open Enrollment Period under Section 4.2, declined to be a Participant) may make a new election within 30 days of the occurrence of an event described in Section 11.3 (or within 60 days of the occurrence of an event described in Section 11.3(e)(3) or (4)), as applicable, but only if the election under the new Election Form/Salary Reduction Agreement is made on account of and is consistent with the event. Notwithstanding the foregoing, a Change in Status that results in a beneficiary becoming ineligible for coverage under the Medical Insurance Plan shall automatically result in a corresponding election change, whether or not requested by the Participant within the normal 30-day period.
(b) Effective Date of New Election. Elections made pursuant to this Section 11.2 shall be effective for the balance of the Period of Coverage following the change of election unless a subsequent event allows for a further election change. Except as provided in Section 11.3(e) for HIPAA special enrollment rights in the event of birth, adoption, or placement for adoption, all election changes shall be effective on a prospective basis only (i.e., election changes will become effective no earlier than the first day of the next calendar month following the date that the election change request was filed, but, as determined by the Plan Administrator, election changes may become effective later to the extent that any replacement coverage commences later).

11.3 Events Permitting Exception to Irrevocability Rule for All Benefits. A Participant may change an election as described below upon the occurrence of the stated events for the applicable component of this Plan in accordance with the procedures described in Section 11.2. (a) Open Enrollment Period. A Participant may change an election during the Open Enrollment Period in accordance with Section 4.2.
(b) Termination of Employment. A Participant's election will terminate under the Plan upon termination of employment in accordance with Sections 3.2 and 3.3, as applicable. 846
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(c) Leaves of Absence. A Participant may change an election under the Plan upon FMLA leave in accordance with Section 3.4 and upon non-FMLA leave in accordance with Section 3.5.
(d) Change in Status. A Participant may change their election under the Plan upon the occurrence of a Change in Status event only if the election is consistent with the event under both the applicable special consistency rules and the general consistency rule. The Plan Administrator, in its sole discretion and on a uniform and consistent basis, shall determine, based on prevailing IRS guidance, whether a requested election change meets the consistency requirements below.

General Consistency Rule: A Participant’s election change satisfies the general consistency requirement only if the election change is made on account of and corresponds with a Change in Status that affects eligibility for coverage under a plan of the Employer or a plan of the Spouse's or Dependent's employer.

Special Consistency Rules: Assuming that the general consistency rule is also satisfied, a requested election change must satisfy the following specific consistency requirements in order for a Participant to be able to alter their election based on the specified Change in Status:

1. Loss of Spouse or Dependent Eligibility; Special COBRA Rules. For a Change in Status involving a Participant's divorce, annulment, or legal separation from a Spouse, the death of a Spouse or a Dependent, or a Dependent's ceasing to satisfy the eligibility requirements for coverage, a Participant may only elect to cancel Benefits for the Spouse or Dependent, as applicable. However, if the Participant or their Spouse or Dependent becomes eligible for COBRA because of a reduction of hours or because the Participant's Dependent ceases to satisfy the eligibility requirements for 847
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coverage (and the Participant remains a Participant under this Plan), then the Participant may increase their election to pay for such coverage.

2. Gain of Coverage Eligibility Under Another Employer's Plan. For a Change in Status in which a Participant or their Spouse or Dependent gains eligibility for coverage under another employer’s cafeteria plan or qualified benefit plan as a result of a change in marital or employment status, a Participant may elect to cease or decrease coverage for that individual only if coverage for that individual becomes effective or is increased under the other employer's plan. The Plan Administrator may rely on a Participant's certification that the Participant has obtained or will obtain coverage under the Spouse's or Dependent's employer's plan, unless the Plan Administrator has reason to believe that the Participant's certification is incorrect.

Election changes may not be made to reduce Health FSA coverage during a Period of Coverage; however, election changes may be made to cancel Health FSA coverage completely due to the occurrence of any of the following events: death of a Spouse, divorce, legal separation, or annulment; death of a Dependent; change in employment status such that the Participant becomes ineligible for Health FSA coverage; or a Dependent's ceasing to satisfy eligibility requirements for Health FSA coverage.

Notwithstanding the foregoing, such cancellation will not become effective to the extent that it would reduce future contributions to the Health FSA to a point where the total contributions for the Plan Year are less than the amount already reimbursed for the Plan Year.
(e) HIPAA Special Enrollment Rights. If a Participant or their Spouse or Dependent is entitled to special enrollment rights under a group health plan (other than an excepted benefit), as required by HIPAA under Code § 9801(f), then a Participant may revoke a prior election for group health plan coverage and make a new election (including, when 848
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required by HIPAA, an election to enroll in another benefit package under a group health plan), provided that the election change corresponds with such HIPAA special enrollment rights. As required by HIPAA, a special enrollment right will arise in the following circumstances:
(1) a Participant or their Spouse or Dependent declined to enroll in group health plan coverage because they had coverage, and eligibility for such coverage is subsequently lost because: (A) the coverage was provided under COBRA, and the COBRA coverage was exhausted; or (B) the coverage was non-COBRA coverage, and the coverage terminated due to loss of eligibility for coverage or the employer contributions for the coverage were terminated;
(2) a new Dependent is acquired as a result of marriage, birth, adoption, or placement for adoption;
(3) the Participant's or Dependent's coverage under a Medicaid plan or state children's health insurance program is terminated as a result of loss of eligibility for such coverage; or
(4) the Participant or Dependent becomes eligible for a state premium assistance subsidy from a Medicaid plan or through a state children's health insurance program with respect to coverage under the group health plan.

An election to add previously eligible Dependents as a result of the acquisition of a new Spouse or Dependent child shall be considered to be consistent with the special enrollment right. An election change on account of a HIPAA special enrollment attributable to the birth, adoption, or placement for adoption of a new Dependent child may, subject to the provisions of the underlying group health plan, be effective retroactively (up to the amount of time provided by the underlying group health plan). (f) Certain Judgments, Decrees, and Orders (Applies to Premium Payment and Health FSA Benefits, but Not to DCAP Benefits). If a judgment, decree, or order (collectively, an "Order") resulting from a divorce, legal separation, annulment, or change in legal 849
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custody (including a QMCSO) requires health coverage for a Participant's child (including a foster child who is a Dependent of the Participant), then a Participant may (1) change their election to provide coverage for the child if the Order requires the Participant to provide coverage; or (2) change their election to revoke coverage for the child if the Order requires that another individual provide coverage under that individual's plan, and such coverage is actually provided. (g) Medicare and Medicaid (Applies to Premium Payment Benefits, to Health FSA Benefits as Limited Below, but Not to DCAP Benefits). If a Participant or their Spouse or Dependent who is enrolled in a health plan under this Plan becomes entitled to or enrolled in Medicare or Medicaid, then the Participant may prospectively reduce or cancel the health coverage of the person becoming entitled to Medicare or Medicaid.

Furthermore, if a Participant or their Spouse or Dependent who has been entitled to Medicare or Medicaid loses eligibility for such coverage, then the Participant may prospectively elect to commence or increase the Medical Insurance Benefit of the individual who loses Medicare or Medicaid eligibility.
(h) Change in Cost (Applies to Premium Payment Benefits, to DCAP Benefits as Limited Below, but Not to Health FSA Benefits). For purposes of this Section 11.3(h), "similar coverage" means coverage for the same category of benefits for the same individuals (e.g., family to family or single to single). For example, two plans that provide major medical coverage are considered to be similar coverage. For purposes of this definition, (1) a health FSA is not similar coverage with respect to an accident or health plan that is not a health FSA; (2) an HMO and a PPO are considered to be similar coverage; and (3) coverage by another employer, such as a Spouse's or Dependent's employer, may be treated as similar coverage if it otherwise meets the requirements of similar coverage.
(1) Increase or Decrease for Insignificant Cost Changes. Participants are required to increase their elective contributions (by increasing Salary Reductions) to reflect 850
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insignificant increases in their required contribution for their Benefit Package Option(s), and to decrease their elective contributions to reflect insignificant decreases in their required contribution. The Plan Administrator, in its sole discretion and on a uniform and consistent basis, will determine whether an increase or decrease is insignificant based upon all the surrounding facts and circumstances, including but not limited to the dollar amount or percentage of the cost change. The Plan Administrator, on a reasonable and consistent basis, will automatically effectuate this increase or decrease in affected employees' elective contributions on a prospective basis.
(2) Significant Cost Increases. If the Plan Administrator determines that the cost charged to an Employee of a Participant's Benefit Package Option(s) (such as the PPO for the Medical Insurance Plan) significantly increases during a Period of Coverage, then the Participant may (a) make a corresponding prospective increase in their elective contributions (by increasing Salary Reductions); (b) revoke their election for that coverage, and in lieu thereof, receive on a prospective basis coverage under another Benefit Package Option that provides similar coverage (such as an HMO, but not the Health FSA); or (c) drop coverage prospectively if there is no other Benefit Package Option available that provides similar coverage. The Plan Administrator, in its sole discretion and on a uniform and consistent basis, will decide whether a cost increase is significant in accordance with prevailing IRS guidance.
(3) Significant Cost Decreases. If the Plan Administrator determines that the cost of any Benefit Package Option (such as a PPO) significantly decreases during a Period of Coverage, then the Plan Administrator may permit the following election changes: (a) Participants enrolled in that Benefit Package Option may make a corresponding prospective decrease in their elective contributions (by decreasing Salary Reductions); (b) Participants who are enrolled in another Benefit Package 851
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Option (such as an HMO, but not the Health FSA) may change their election on a prospective basis to elect the Benefit Package Option that has decreased in cost (such as the PPO for the Medical Insurance Plan); or (c) Employees who are otherwise eligible under Section 3.1 may elect the Benefit Package Option that has decreased in cost (such as the PPO) on a prospective basis, subject to the terms and limitations of the Benefit Package Option. The Plan Administrator, in its sole discretion and on a uniform and consistent basis, will decide whether a cost decrease is significant in accordance with prevailing IRS guidance. (4) Limitation on Change in Cost Provisions for DCAP Benefits. The above "Change in Cost" provisions (Sections 11.3(h)(1) through 11.3(h)(3)) apply to DCAP Benefits only if the cost change is imposed by a dependent care provider who is not a "relative" of the Employee. For this purpose, a relative is an individual who is related as described in Code §§152(d)(2)(A) through (G), incorporating the rules of Code §§152(f)(1) and 152(f)(4).
(i) Change in Coverage (Applies to Premium Payment and DCAP Benefits, but Not to Health FSA Benefits).

The definition of "similar coverage" under Section 11.3(h) applies also to this Section

11.3(i).
(1) Significant Curtailment. If coverage is "significantly curtailed" (as defined below), Participants may elect coverage under another Benefit Package Option that provides similar coverage. In addition, as set forth below, if the coverage curtailment results in a "Loss of Coverage" (as defined below), then Participants may drop coverage if no similar coverage is offered by the Employer. The Plan Administrator in its sole discretion, on a uniform and consistent basis, will decide, in accordance with prevailing IRS guidance, whether a curtailment is "significant," and whether a Loss of Coverage has occurred.
(a) Significant Curtailment Without Loss of Coverage. If the Plan 852
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Administrator determines that a Participant's coverage under a Benefit Package Option under this Plan (or the Participant's Spouse's or Dependent's coverage under their employer's plan) is significantly curtailed without a Loss of Coverage (for example, when there is a significant increase in the deductible, the co-pay, or the out-of-pocket cost-sharing limit under a health plan, such as the PPO under the Medical Insurance Plan) during a Period of Coverage, the Participant may revoke their election for the affected coverage, and in lieu thereof, prospectively elect coverage under another Benefit Package Option that provides similar coverage (such as the HMO, but not the Health FSA). Coverage under a plan is deemed to be "significantly curtailed" only if there is an overall reduction in coverage provided under the plan so as to constitute reduced coverage generally.
(b) Significant Curtailment With a Loss of Coverage. If the Plan Administrator determines that a Participant's Benefit Package Option coverage under this Plan (or the Participant's Spouse's or Dependent's coverage under their employer's plan) is significantly curtailed, and if such curtailment results in a Loss of Coverage during a Period of Coverage, then the Participant may revoke their election for the affected coverage and may either prospectively elect coverage under another Benefit Package Option that provides similar coverage (such as the HMO, but not the Health FSA) or drop coverage if no other Benefit Package Option providing similar coverage is offered by the Employer.
(c) Definition of Loss of Coverage. For purposes of this Section 11.3(i)(1), a "Loss of Coverage" means a complete loss of coverage, including the elimination of a Benefit Package Option, an HMO ceasing to be available where the Participant or their Spouse or Dependent resides, or a Participant or their Spouse or Dependent losing all coverage under the Benefit Package Option by reason of an overall lifetime or annual limitation. In addition, the Plan 853
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Administrator, in its sole discretion, on a uniform and consistent basis, may treat the following as a Loss of Coverage:
• a substantial decrease in the medical care providers available under the Benefit Package Option (such as a major hospital ceasing to be a member of a preferred provider network or a substantial decrease in the number of physicians participating in the PPO for the Medical Insurance Plan or in an HMO);
• a reduction in benefits for a specific type of medical condition or treatment with respect to which the Participant or their Spouse or Dependent is currently in a course of treatment; or
• any other similar fundamental loss of coverage.
(d) DCAP Coverage Changes. A Participant may make a prospective election change that is on account of and corresponds with a change by the Participant in the dependent care service provider. For example: (a) if the Participant terminates one dependent care service provider and hires a new dependent care service provider, then the Participant may change coverage to reflect the cost of the new service provider; and (b) if the Participant terminates a dependent care service provider because a relative becomes available to take care of the child at no charge, then the Participant may cancel coverage.
(2) Addition or Significant Improvement of a Benefit Package Option. If during a Period of Coverage the Plan adds a new Benefit Package Option or significantly improves an existing Benefit Package Option, the Plan Administrator may permit the following election changes: (a) Participants who are enrolled in a Benefit Package Option other than the newly added or significantly improved Benefit Package Option may change their elections on a prospective basis to elect the newly added or significantly improved Benefit Package Option; and (b) Employees who are otherwise eligible under Section 3.1 may elect the newly added or significantly 854
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improved Benefit Package Option on a prospective basis, subject to the terms and limitations of the Benefit Package Option. The Plan Administrator, in its sole discretion and on a uniform and consistent basis, will decide whether there has been an addition of, or a significant improvement in, a Benefit Package Option in accordance with prevailing IRS guidance.
(3) Loss of Coverage Under Other Group Health Coverage. A Participant may prospectively change their election to add group health coverage for the Participant or their Spouse or Dependent, if such individual(s) loses coverage under any group health coverage sponsored by a governmental or educational institution, including (but not limited to) the following: a state children's health insurance program under Title XXI of the Social Security Act; a medical care program of an Indian Tribal government (as defined in Code § 7701(a)(40)), the Indian Health Service, or a tribal organization; a state health benefits risk pool; or a foreign government group health plan, subject to the terms and limitations of the applicable Benefit Package Option(s).
(4) Change in Coverage Under Another Employer Plan. A Participant may make a prospective election change that is on account of and corresponds with a change made under an employer plan (including a plan of the Employer or a plan of the Spouse's or Dependent's employer), so long as (a) the other cafeteria plan or qualified benefits plan permits its participants to make an election change that would be permitted under applicable IRS regulations; or (b) the Plan permits Participants to make an election for a Period of Coverage that is different from the plan year under the other cafeteria plan or qualified benefits plan. For example, if an election is made by the Participant's Spouse during their employer's open enrollment to drop coverage, the Participant may add coverage to replace the dropped coverage. The Plan Administrator, in its sole discretion and on a uniform and consistent basis, will decide whether a requested change is on account of and corresponds with a change 855
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made under the other employer plan, in accordance with prevailing IRS guidance. (j) Reduction of Hours (Applies Only to Premium Payment Benefits for the Medical Insurance Plan). A Participant who was reasonably expected to average 30 hours of service or more per week and experiences an employment status change such that he or she is reasonably expected to average less than 30 hours of service per week may prospectively revoke his or her election for Medical Insurance Plan coverage, provided that the Participant certifies that he or she and any related individuals whose coverage is being revoked have enrolled or intend to enroll in another plan providing minimum essential coverage under health care reform for coverage that is effective no later than the first day of the second month following the month that includes the date the Medical Insurance Plan coverage is revoked.
(k) Exchange Enrollment (Applies Only to Premium Payment Benefits for the Medical Insurance Plan). A Participant who is eligible to enroll for coverage in a governmentsponsored Exchange (Marketplace) during an Exchange special or annual open enrollment period may prospectively revoke his or her election for Medical Insurance Plan coverage, provided that the Participant certifies that he or she and any related individuals whose coverage is being revoked have enrolled or intend to enroll in new Exchange coverage that is effective no later than the day immediately following the last day of the Medical Insurance Plan coverage. If one or more of a Participant's related individuals are eligible to enroll for coverage in a government-sponsored Exchange (Marketplace) during an Exchange special or annual open enrollment period, the Participant may prospectively revoke an election for Medical Insurance Plan coverage for the individual or individuals (and switch to self-only coverage or family coverage including one or more other related individuals), provided that the Participant certifies that the individuals whose coverage is being revoked have enrolled or intend to enroll in new Exchange coverage that is effective no later than the day immediately following the last day of their Medical Insurance Plan coverage.
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A Participant entitled to change an election as described in this Section 11.3 must do so in accordance with the procedures described in Section 11.2.

11.4 Election Modifications Required by Plan Administrator. The Plan Administrator may, at any time, require any Participant or class of Participants to amend the amount of their Salary Reductions for a Period of Coverage if the Plan Administrator determines that such action is necessary or advisable in order to (a) satisfy any of the Code's nondiscrimination requirements applicable to this Plan, if any, or other cafeteria plan; (b) prevent any Employee or class of Employees from having to recognize more income for federal income tax purposes from the receipt of benefits hereunder than would otherwise be recognized; (c) maintain the qualified status of benefits received under this Plan; or (d) satisfy Code nondiscrimination requirements or other limitations applicable to the Employer's qualified plans, if any. In the event that contributions need to be reduced for a class of Participants, the Plan Administrator will reduce the Salary Reduction amounts for each affected Participant, beginning with the Participant in the class who had elected the highest Salary Reduction amount and continuing with the Participant in the class who had elected the next-highest Salary Reduction amount, and so forth, until the defect is corrected.

ARTICLE XII. Appeals Procedure

12.1 Procedure If Benefits Are Denied Under This Plan. If a claim for benefits under this Plan is wholly or partially denied, then the Employee or Participant may request review upon written application to the Committee. The Committee acts on behalf of the Plan Administrator with respect to appeals.

12.2 Claims Procedures for Benefits. Claims and reimbursement for Medical, Dental, and Vision Insurance Benefits shall be administered in accordance with the claims procedures for the Medical, Dental, Vision Insurance Benefits, as set forth in the plan documents for the Medical, Dental, and Vision Insurance Plans.

12.3 Claims Deadline. Unless otherwise provided herein or required pursuant to applicable 857
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law, a claim for benefits under this Plan must be made within one year after the date the expense was incurred that gives rise to the claim. It is the responsibility of the Employee or his or her designee to make sure this requirement is met.

12.4 Limitations Period for Filing Suit. Unless otherwise provided herein or required pursuant to applicable law, a suit for benefits under this Plan must be brought within one year after the date of a final decision on the claim in accordance with the applicable claims procedure.

ARTICLE XIII. Recordkeeping and Administration

13.1 Plan Administrator. The administration of this Plan shall be under the supervision of the Plan Administrator. It is the principal duty of the Plan Administrator to see that this Plan is carried out, in accordance with its terms, for the exclusive benefit of persons entitled to participate in this Plan without discrimination among them.

13.2 Powers of the Plan Administrator. The Plan Administrator shall have such duties and powers as it considers necessary or appropriate to discharge its duties. It shall have the exclusive right to interpret the Plan and to decide all matters thereunder, and all determinations of the Plan Administrator with respect to any matter hereunder shall be conclusive and binding on all persons. Without limiting the generality of the foregoing, the Plan Administrator shall have the following discretionary authority:
(a) to construe and interpret this Plan, including all possible ambiguities, inconsistencies, and omissions in the Plan and related documents, and to decide all questions of fact, questions relating to eligibility and participation, and questions of benefits under this Plan (provided that the Committee shall exercise such exclusive power with respect to an appeal of a claim under Section 12.1); (b) to prescribe procedures to be followed and the forms to be used by Employees and Participants to make elections pursuant to this Plan;
(c) to prepare and distribute information explaining this Plan and the benefits under this Plan in such manner as the Plan Administrator determines to be appropriate; 858
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(d) to request and receive from all Employees and Participants such information as the Plan Administrator shall from time to time determine to be necessary for the proper administration of this Plan;
(e) to furnish each Employee and Participant with such reports with respect to the administration of this Plan as the Plan Administrator determines to be reasonable and appropriate, including appropriate statements setting forth the amounts by which a Participant's Compensation has been reduced in order to provide benefits under this Plan;
(f) to receive, review, and keep on file such reports and information regarding the benefits covered by this Plan as the Plan Administrator determines from time to time to be necessary and proper;
(g) to appoint and employ such individuals or entities to assist in the administration of this Plan as it determines to be necessary or advisable, including legal counsel and benefit consultants;
(h) to sign documents for the purposes of administering this Plan, or to designate an individual or individuals to sign documents for the purposes of administering this Plan; (i) to secure independent medical or other advice and require such evidence as it deems necessary to decide any claim; and
(j) to maintain the books of accounts, records, and other data in the manner necessary for proper administration of this Plan and to meet any applicable disclosure and reporting requirements.

13.3 Reliance on Participant, Tables, etc. The Plan Administrator may rely upon the direction, information, or election of a Participant as being proper under the Plan and shall not be responsible for any act or failure to act because of a direction or lack of direction by a Participant. The Plan Administrator will also be entitled, to the extent permitted by law, to rely conclusively on all tables, valuations, certificates, opinions, and reports that are furnished by accountants, attorneys, or other experts employed or engaged by the Plan Administrator. 859
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13.4 Provision for Third-Party Plan Service Providers. The Plan Administrator, subject to approval of the Employer, may employ the services of such persons as it may deem necessary or desirable in connection with the operation of the Plan. Unless otherwise provided in the service agreement, obligations under this Plan shall remain the obligation of the Employer.

13.5 Fiduciary Liability. To the extent permitted by law, the Plan Administrator shall not incur any liability for any acts or for failure to act except for their own willful misconduct or willful breach of this Plan.

13.6 Compensation of Plan Administrator. Unless otherwise determined by the Employer and permitted by law, any Plan Administrator that is also an Employee of the Employer shall serve without compensation for services rendered in such capacity, but all reasonable expenses incurred in the performance of their duties shall be paid by the Employer.

13.7 Insurance Contracts. The Employer shall have the right (a) to enter into a contract with one or more insurance companies for the purposes of providing any benefits under the Plan; and (b) to replace any of such insurance companies or contracts. Any dividends, retroactive rate adjustments, or other refunds of any type that may become payable under any such insurance contract shall not be assets of the Plan but shall be the property of and be retained by the Employer, to the extent that such amounts are less than aggregate Employer Contributions toward such insurance.

13.8 Inability to Locate Payee. If the Plan Administrator is unable to make payment to any Participant or other person to whom a payment is due under the Plan because it cannot ascertain the identity or whereabouts of such Participant or other person after reasonable efforts have been made to identify or locate such person, then such payment and all subsequent payments otherwise due to such Participant or other person shall be forfeited following a reasonable time after the date any such payment first became due.

13.9 Effect of Mistake. In the event of a mistake as to the eligibility or participation of an Employee, the allocations made to the account of any Participant, or the amount of benefits paid 860
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or to be paid to a Participant or other person, the Plan Administrator shall, to the extent that it deems administratively possible and otherwise permissible under Code § 125 or the regulations issued thereunder, cause to be allocated or cause to be withheld or accelerated, or otherwise make adjustment of, such amounts as it will in its judgment accord to such Participant or other person the credits to the account or distributions to which they are properly entitled under the Plan. Such action by the Plan Administrator may include withholding of any amounts due to the Plan or the Employer from Compensation paid by the Employer.

ARTICLE XIV. General Provisions

14.1 Expenses. All reasonable expenses incurred in administering the Plan are currently paid by forfeitures to the extent provided in Section 7.6 with respect to Health FSA Benefits and Section 9.6 with respect to DCAP Benefits, and then by the Employer.

14.2 No Contract of Employment. Nothing herein contained is intended to be construed as an employment contract or other arrangement between any Employee and the Employer and shall not be construed to imply that Employee will be employed for any specific period of time.

14.3 Amendment and Termination. This Plan has been established with the intent of being maintained for an indefinite period of time. Nonetheless, the Employer may restate, amend or terminate all or any part of this Plan (including any Component) at any time for any reason by resolution of the Employer's governing body or by any person or persons authorized by the governing body to take such action.

14.4 Governing Law/Venue. This Plan shall be construed, administered, and enforced according to the laws of the State of California, to the extent not superseded by the Code or any other federal law. Any claim or action resulting from, relating to, or arising under the Plan shall only be brought in the County of Riverside in the Central District of California, and such Court shall have personal jurisdiction over any party named in the action.

14.5 Compliance With Code and Other Applicable Laws. It is intended that this Plan meet all applicable requirements of the Code and of all regulations issued thereunder. This Plan shall 861
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be construed, operated, and administered accordingly, and in the event of any conflict between this Plan and the Code, the provisions of the Code shall be deemed controlling, and any conflicting provision of this Plan shall be deemed superseded to the extent of the conflict. In addition, the Plan will comply with the requirements of all other applicable laws.

14.6 No Guarantee of Tax Consequences. Neither the Plan Administrator nor the Employer makes any commitment or guarantee that any amounts paid to or for the benefit of a Participant under this Plan will be excludable from the Participant's gross income for federal, state, or local income tax purposes. It shall be the obligation of each Participant to determine whether each payment under this Plan is excludable from the Participant's gross income for federal, state, and local income tax purposes and to notify the Plan Administrator if the Participant has any reason to believe that such payment is not so excludable.

14.7 Indemnification of Employer. If any Participant receives one or more payments or reimbursements under this Plan on a tax-free basis and if such payments do not qualify for such treatment under the Code, then such Participant shall indemnify and reimburse the Employer for any liability that it may incur for failure to withhold federal income taxes, Social Security taxes, or other taxes from such payments or reimbursements.

14.8 Non-Assignability of Rights. The right of any Participant to receive reimbursement under this Plan shall not be assigned by the Participant and shall not be subject to claims by the Participant's creditors. Any attempt to cause such right to be so subjected will not be recognized, except to the extent required by law.

14.9 Plan Provisions Controlling. In the event that the terms or provisions of any summary or description of this Plan conflict with the provisions of this Plan, the provisions of this Plan shall control.

14.10 Severability. If any part of this Plan is invalidated by a court of competent jurisdiction, the remainder of the Plan shall be given effect to the maximum extent permitted by law. * * *
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This document is executed this ____ day of __________________________ in Year __________.

CITY OF BANNING
By:________________________________________________
Its:_______________________________________________
863

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Brandon Robinson, Electrical Engineering Supervisor Art Vela, Director of Public Works
MEETING DATE: December 10, 2024
SUBJECT: Consideration of Resolution 2024-192, Approving an Amendment to the Construction Services Contract with Electric Power Systems International, Inc. in the Amount of $9,220 Related to the San Gorgonio Substation 12kV Extension Project
RECOMMENDATION:

Adopt Resolution 2024-192.

BACKGROUND:

On September 10, 2024, City Council adopted Resolution 2024-146, “Approving a Sole Source Contract with Electric Power Systems International, Inc. (EPS) for Construction Services Related to the San Gorgonio Substation 12kV Extension Project in the Amount of $58,039.80.” Approval of Resolution 2024- 146 would allow EPS to complete the project that was commenced back in late 2021, but not completed due to various delays in construction related to supply chain issues.

During construction activities related to Resolution 2024-146, field staff had identified obstructions present within an underground pipe sleeve being used to transport utility infrastructure from the San Gorgonio Substation to the area of interconnection with circuits from the decommissioned Alola Substation. In order to evaluate the cause of the obstruction, additional labor and equipment to run a CCTV system through the pipe sleeve and remove the obstruction is required. Additionally, staff recognized that a flexible conduit substitute for Schedule 40 PVC conduit would be required to be expressed thru the sleeve due to the changes in elevation from end to end.

The total cost to complete the additional work is $9,220.00.

JUSTIFICATION:

The primary purpose for this amendment is to complete necessary improvements that help to provide continued reliable, and uninterrupted utility services. Staff has identified an issue and solution for completing the improvements related to the original scope of work. The cost to complete the work is reasonable and expected for the amount of work involved.

FISCAL IMPACT:

The amount of $9,220 shall be appropriated from the Electric Fund to account 673-7000-473.96-25 for the purpose of completing the San Gorgonio Substation 12kV Extension project. If approved, the new contract budget shall increase from $58,039.80 to $67,259.80. The new funding breakdown is as follows:
864
Account Year Amount
673-7000-473.96-25 2024/2025 $60,259.80
673-7000-473.96-20 2024/2025 $7,000.00
ALTERNATIVES:

1. Adopt Resolution 2024-XXX as recommended.

2. Adopt Resolution 2024-XXX with modifications.

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

BUDGETED?:

No
CONTRACT/AGREEMENT:

Yes
ATTACHMENTS:

1. Resolution 2024-192, EPS International Amend 1.docx

2. C01068 - Change Order No.1.pdf

3. SR Resolution 2024-146.pdf

4. C01068 - EPS PW San Gorgonio Substation 12KV Extension_Original Contract.docx.pdf 865
Resolution 2024-192

Page 1 of 4 ends

RESOLUTION 2024-192

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, APPROVING AMENDMENT NO. 1 TO THE CONSTRUCTION SERVICES CONTRACT WITH ELECTRIC POWER SYSTEMS INTERNATIONAL, INC. IN THE AMOUNT OF $9,220 RELATED TO THE SAN GORGONIO SUBSTATION 12KV EXTENSION PROJECT WHEREAS, the City of Banning owns and operates a retail electrical energy distribution system which serves load to end-use customers in an assigned area of service; and WHEREAS, City Council adopted Resolution 2024-146, “Approving a Sole Source Contract with Electric Power Systems International, Inc. (EPS) for Construction Services Related to the San Gorgonio Substation 12kV Extension Project in the Amount of $58,039.80”; and WHEREAS, staff had identified obstructions present within an underground pipe sleeve being used to transport utility infrastructure from the San Gorgonio Substation to the area of interconnection with circuits from the decommissioned Alola Substation; and WHEREAS, EPS has provided a quote in the amount of $9,220.00 to complete necessary improvements for the project; and
WHEREAS, the Construction Services Agreement with EPS will increase from $58,038.80, to $67,259.80 to complete the necessary improvements. The expenditure will require appropriation of $9,220.00 from the Electric Improvement Fund to Account No. 673-7000-473.96-

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

SECTION 1. The City Council approves the Amendment to the Construction Services Contract with Electric Power Systems International, Inc. for the San Gorgonio Substation 12kV Extension Project in an amount of $9,220.00 for a total not-to-exceed amount of $67,259.80.

SECTION 2. The City Council authorizes the City Manager to make non-substantive changes to the Amendment with Electric Power Systems International, Inc. and to execute the Amendment 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 10th day of December 2024.

Mayor
City of Banning
866
Resolution 2024-192

Page 2 of 4 ends

ATTEST:

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

Serita R. Young, City Attorney
Richards, Watson & Gershon
867
Resolution 2024-192

Page 3 of 4 ends

CERTIFICATION:

I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2024-192, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 10th day of December 2024 by the following vote, to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Caroline Patton, Administrative City Clerk
City of Banning, California
868
Resolution 2024-192

Page 4 of 4 ends

EXHIBIT A
Amendment No.1 to the Construction Services Contract with Electric Power Systems International, Inc.
869
Contract # C01068

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CHANGE ORDER No. 1

CONTRACT SERVICES AGREEMENT FOR THE
SAN GORGONIO SUBSTATION 12KV EXTENSION
TO: Electric Power Systems International, Inc.

You are hereby directed to provide the extra work necessary to comply with this Change Order.

ITEM PCO
NO. DESCRIPTION OF CHANGES AMOUNT
Time
Extensi
on
(Days)
1 2
1 2
Additional scope and hours for conduit (CO LAX-LL-Q24699 as attached and incorporated herein).

Additional scope and hours for San G smoothwall innerduct (CO LAX-LL-Q24706 as attached and incorporated herein).
$5,550.00
$3,670.00
0 0
NET CHANGE IN CONTRACT AMOUNT – INCREASE OR
(DECREASE) $9,220.00 0

ACCEPTANCE:

Contractor accepts the terms and conditions stated above as full and final settlement of any and all claims arising from this Change Order and acknowledges that the compensation (time and cost) set forth in the Change Order comprises the total compensation due for the work or change defined in the Change Order, including all impact on any unchanged work. By signing the Change Order, the Contractor acknowledges and agrees that the stipulated compensation includes payment for all Work contained in the Change Order, plus all payment for the interruption of schedules, extended overhead costs, delay, and all impact, ripple effect or cumulative impact on all other Work under this Contract. The signing of the Change Order acknowledges full mutual accord and satisfaction for the change, and that the time and/or cost under the Change Order constitute the total equitable adjustment owed the Contractor as a result of the change. The Contractor agrees to waive all rights, without exception or reservation of any kind whatsoever, to file any further claim or request for equitable adjustment of any type, for any reasonably foreseeable cause that shall arise out of or as a result of this Change Order or the impact of this Change Order on the remainder of the Work under this contract.

Contractor agrees to perform the above-described work in accordance with the above terms and in compliance with applicable Sections of the Contract Documents.

This Change Order is hereby agreed to, accepted and approved, all in accordance with the General Conditions of the Contract Documents.
870
Contract # C01068

Page 2 of 2 ends

CITY OF BANNING: CONTRACTOR:

By:

Project Manager Date
Title:

Director of Engineering Date
Date:

City Manager Date
871
• www.epsii.com
Date: 11/1/24

Brandon Robinson
CITY OF BANNING Cell: (951) 922-3263
99 E RAMSEY ST Email: [email protected]
BANNING, CA 92220
Reference: EPS Quote LAX-LL-Q24699
Change order LAX21066

1. PROJECT SUMMARY:

Electric Power Systems International Inc. (EPS) is pleased to offer professional services on Change Order LAX21066 additional scope and hours for conduit. This project is located in Banning, California.

All testing will be in accordance with NETA Acceptance Testing Specifications as stated below.

2. SCOPE OF WORK:

Camera work and additional prevailing wage hours for Cunningham Davis team.

Clearing the obstruction in conduit for San G fiber line.

Findings was the line is not straight, and the conduit install, and strategy will need to change to accommodate the run.

3. PRICING: ………………………………………………………………………………… $ 5,550.00

4. ELECTRIC POWER SYSTEMS RESPONSIBILITIES

4.1. Will provide the necessary field service engineers, technicians, tools and test equipment to complete the testing of the equipment as defined by project scope of work.

4.2. Will provide a full report to include scope of work, test dates, test data, problems found and recommendations.

4.3. Will perform a daily onsite JHA, Coordinate with customer to perform Lock-Out/Tag-Out (LOTO) activities, perform equipment inspections and report any items that are believed to have a potential for an unsafe work condition.

5. CUSTOMER RESPONSIBILITIES:

5.1. Supply adequate power for test equipment as required by project scope of work. 120v/15A, 480v/150A

5.2. Provide access and assistance for all electrical equipment and will be responsible for LOTO & safety grounding.

6. CLARIFICATIONS AND ASSUMPTIONS:

6.1. Quotes are valid for 90 days. EPS full terms & conditions can be released upon request by the client.

6.2. Testing will be completed based on NETA ATS 2017. All NETA optional testing is excluded.

6.3. The pricing assumes field technicians working Monday – Friday, 10 hour/days, consecutive day shifts.

Thank you,
Larry Limoges
Sales Manager
657.322.8054 Office
[email protected]
www.epsii.com
872
• www.epsii.com
Date: 11/7/24

Brandon Robinson
CITY OF BANNING Cell: (951) 922-3263
99 E RAMSEY ST Email: [email protected]
BANNING, CA 92220
Reference: EPS Quote LAX-LL-Q24706

1. PROJECT SUMMARY:

Electric Power Systems International Inc. (EPS) is pleased to offer professional services on San G smoothwall innerduct This project is located in Banning, California. All testing will be in accordance with NETA Acceptance Testing Specifications as stated below.

2. SCOPE OF WORK: Change order for procurement.
(1)1,000ft 2" Smoothwall Innerduct SDR11

3. PRICING: ………………………………………………………………………………… $ 3,670.00

4. ELECTRIC POWER SYSTEMS RESPONSIBILITIES

4.1. Will provide the necessary field service engineers, technicians, tools and test equipment to complete the testing of the equipment as defined by project scope of work.

4.2. Will provide a full report to include scope of work, test dates, test data, problems found and recommendations.

5. CUSTOMER RESPONSIBILITIES:

5.1. Supply adequate power for test equipment as required by project scope of work. 120v/15A, 480v/150A

5.2. Provide access and assistance for all electrical equipment and will be responsible for LOTO & safety grounding.

6. CLARIFICATIONS AND ASSUMPTIONS:

6.1. Quotes are valid for 90 days. EPS full terms & conditions can be released upon request by the client.

6.2. Testing will be completed based on NETA ATS 2017. All NETA optional testing is excluded.

6.3. The pricing assumes field technicians working Monday – Friday, 10 hour/days, consecutive day shifts.

Thank you,
Larry Limoges
Sales Manager
657.322.8054 Office
[email protected]
www.epsii.com
873

CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Brandon Robinson, Electrical Engineering Supervisor Art Vela, Director of Public Works
MEETING DATE: September 10, 2024
SUBJECT: Consideration of Resolution 2024-146, Approving a Sole Source Contract with Electric Power Systems International, Inc. for Construction Services Related to the San Gorgonio Substation 12kV Extension Project in the Amount of $58,039.80
RECOMMENDATION:

Adopt Resolution 2024-146.

BACKGROUND:

On September 28, 2021, City Council adopted Resolution 2021-81 awarding Electric Power Systems (EPS) a contract in the amount of $3,629,128.80 that included a 10% contingency for the construction of the San Gorgonio Substation. The original Contract C00727 was executed on October 27, 2021.

Due to various delays in construction related to supply chain issues, the Contract was extended an additional 313 days from the original contract expiration date, but has since expired prior to conclusion of the work effort. Since there were some remaining work activities to be completed under Contract C00727 beyond the initial time extension, Purchasing staff has recommended to Electric staff to execute a sole source contract to complete the remaining tasks. There are budgeted funds remaining on the initial San Gorgonio Substation Construction PO 31284 in the amount of $51,039.80 to complete the work that is being requested through the sole source contract with EPS. Electric staff is also requesting to add $7,000.00 of budgeted funds to this proposed sole source agreement to cover the costs of distribution circuit troubleshooting.

Upon the execution of the sole source agreement for EPS, a Notice of Completion will be brought forward for the original San Gorgonio Substation contract and filed.

JUSTIFICATION:

The City of Banning Electric Utility and EPS have an obligation to complete the remaining tasks for the San Gorgonio Substation. The major item of work that remains is the distribution line extension that connects San Gorgonio Substation with distribution circuits that were previously served by Alola Substation, which has been decommissioned.

FISCAL IMPACT:

Account Year Amount
673-7000-473.96-25 2024/2025 $51,039.80
1 874
673-7000-473.96-20 2024/2025 $7,000.00
ALTERNATIVES:

Do not adopt Resolution 2024-146 and provide alternative direction to staff.

BUDGETED?:

Yes
CONTRACT/AGREEMENT:

Yes
ATTACHMENTS:

1. Resolution 2024-146, SanG Substation.docx

2. C01068_-_EPS_PW_San_Gorgonio_Substation_12KV_Extension (1).docx

3. EPS SOLE SOURCE FORM_.pdf

4. PR_EPS Sole Source - San G 12kV_8-13-24_.pdf
2 875
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CONTRACT (C01068)
CITY OF BANNING CONTRACT FOR SAN GORGONIO SUBSTATION 12KV EXTENSION

BY AND BETWEEN CITY OF BANNING AND ELECTRIC POWER SYSTEMS INTERNATIONAL INC.

THIS CONTRACT (“Contract”) is made and entered this day of________________________ (“Effective Date”), by and between the CITY OF BANNING, a California municipal corporation (“City”) and ELECTRIC POWER SYSTEMS INTERNATIONAL INC, a Missouri corporation (“Contractor”).

Contractor’s California State Contractor’s license number is1068030; Class C-10. Contractor’s DIR registration number is 1000013541.

In consideration of the mutual covenants hereinafter set forth, the parties hereto agree as follows:

1. The Contract Documents consist of this Contract, the Bid (including documentation accompanying the Bid and any post-Bid documentation submitted before the Notice of Award), the Bonds, permits from regulatory agencies with jurisdiction, General Provisions, Special Provisions, Plans, Standard Plans, Standard Specifications, Reference Specifications, Addenda, Change Orders, and Supplemental Agreements. The Bid is attached hereto as Exhibit “A” and incorporated herein by reference, the General Provisions are attached hereto and incorporated herein by reference, and the remaining Contract Documents are incorporated herein by reference.

2. Scope of Services. Contractor shall perform the Work in a good and workmanlike manner for the project identified as San Gorgonio Substation 12kV Extension (“Project”), as described in this Contract and in the Contract Documents.

3. Compensation. In consideration of the services rendered hereunder, City shall pay Contractor a not to exceed amount of Fifty-Eight Thousand Thirty-Nine Dollars and Eighty Cents ($58,039.80) in accordance with the prices as submitted in the Bid.

4. Incorporation by Reference. All of the following documents are attached hereto and incorporated herein by this reference: Workers’ Compensation Certificate of Insurance, Additional Insured Endorsement (Comprehensive General Liability), Additional Insured Endorsement (Automobile Liability), and Additional Insured Endorsement (Excess Liability).

5. Antitrust Claims. In entering into this Contract, Contractor offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. § 15) or under the Cartwright Act (Business and Professions Code Section 16700 et seq.) arising from purchases of goods, services, or materials pursuant to the Contract. This assignment shall be made and become effective at the time City tenders final payment to Contractor without further acknowledgment by the parties.

6. Prevailing Wages. City and Contractor acknowledge that the Project is a public work to which prevailing wages apply.

7. Debarment & Suspension. Consultant represents and warrants that, as of the Effective Date of this Agreement, Consultant is not debarred or suspended pursuant to any applicable Federal or State law providing for the debarment of contractors. Consultant shall not perform the Services with any subcontractor that has been debarred or suspended pursuant to any applicable Federal or State law providing for the debarment. Consultant and its subcontractors shall not be debarred or suspended throughout the Term of this Agreement pursuant to any applicable Federal or State law providing for the debarment of Docusign Envelope ID: CF7876E0-BA02-4768-8AC4-7D1E58ED6C78 September 10, 2024
182876
GP-2
contractors. If Consultant or any subcontractor becomes debarred or suspended during the Term of this Agreement, Consultant shall immediately notify City.
8 Workers’ Compensation. Labor Code Sections 1860 and 3700 provide that every contractor will be required to secure the payment of compensation to its employees. In accordance with the provisions of Labor Code Section 1861, by signing this Contract, the Contractor 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.”

9. Titles. The titles used in this Contract are for convenience only and shall in no way define, limit or describe the scope or intent of this Contract or any part of it.

10. Authority. Any person executing this Contract on behalf of Contractor warrants and represents that he or she has the authority to execute this Contract on behalf of Contractor and has the authority to bind Contractor to the performance of its obligations hereunder.

11. Entire Agreement. This Contract, including the Contract Documents and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between City and Contractor. This Contract supersedes all prior oral or written negotiations, representations or agreements.

This Contract may not be modified or amended, nor any provision or breach waived, except in a writing signed by both parties that expressly refers to this Contract.

12. Signatures. 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.

13. Counterparts. This Contract may be executed in counterpart originals, duplicate originals, or both, each of which is deemed to be an original for all purposes. *SIGNATURES ON THE NEXT PAGE*
Docusign Envelope ID: CF7876E0-BA02-4768-8AC4-7D1E58ED6C78 182977
GP-3
IN WITNESS WHEREOF, the parties hereto have executed the Contract the day and year first above written.

CITY OF BANNING
City Council Approval: ______________ By:

City Manager Date
ATTEST: APPROVED AS TO FORM:

By: By:

Administrative City Clerk Date City Attorney Date
(“CONTRACTOR”)
By:

Name: Date
Title:

By:

Name: Date
Title:

Docusign Envelope ID: CF7876E0-BA02-4768-8AC4-7D1E58ED6C78 9/11/2024
President
9/12/2024
George Bratkiv
9/12/2024
2024-146 9/12/2024
183078
GP-1

GENERAL PROVISIONS
SECTION 0. GENERAL PROVISIONS DEFINED
0-1 STANDARD SPECIFICATIONS
The 2021 edition of “Standard Specifications for Public Works Construction” (“Standard Specifications”), as amended by the Contract Documents, is incorporated into the Contract Documents by this reference.

The Work described herein shall be done in accordance with the provisions of the Standard Specifications, as amended by the Contract Documents.
0-2 NUMBERING OF SECTIONS
The number of sections and subsections in these General Provisions are compatible with the numbering in the Standard Specifications.
0-3 SUPPLEMENTATION OF STANDARD SPECIFICATIONS
The Sections that follow supplement, but do not replace, the corresponding provisions in Part 1 (General Provisions) of the Standard Specifications, except as otherwise indicated herein. In the event of any conflict between the Standard Specifications and these General Provisions, these General Provisions shall control.

SECTION 1. GENERAL, TERMS, DEFINITIONS, ABBREVIATIONS, UNITS OF MEASURE, AND SYMBOLS 1-2 TERMS AND DEFINITIONS
Whenever in the Standard Specifications or in the Contract Documents the following terms are used, they shall be understood to mean the following:

Agency – The City of Banning.

Board – The City Council of the City of Banning.

Contract Documents – As defined in Standard Specifications Section 1-2, but also including these General Provisions.

Engineer – The City Engineer, acting either directly or through properly authorized agents.

Such agents shall act within the scope of the particular duties entrusted to them.

Inspector – An authorized representative of the City, assigned by the City to make inspections of Work performed by or materials supplied by the Contractor.

Laboratory – A laboratory authorized by the City to test materials and Work involved in the Contract.

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GP-2
Notice of Completion – The notice authorized by Civil Code Section 9204.

Project – See Work.

Submittal – Any drawing, calculation, specification, product data, samples, manuals, requests for substitutes, spare parts, photographs, survey data, traffic control plans, record drawings, Bonds or similar items required to be submitted to the City under the terms of the Contract. 1-3.3 Institutions
The institutions listed in Section 1-3.3 of Part 1 of the Standard Specifications shall be supplemented by the list below:

Abbreviation Word or Words
AAN .................................................................................................... American Association of Nurserymen AGCA ..........................................................................................Associated General Contractors of America APWA ..................................................................................................... American Public Works Association CRSI ........................................................................................................Concrete Reinforcing Steel Institute CSI .........................................................................................................Construction Specifications Institute NEC.............................................................................................................................. National Electric Code NFPA......................................................................................................National Fire Protection Association SSS.............................................................................................. State of California Standard Specifications, Latest edition, Department of Transportation
SSP............................................................................................................ State of California Standard Plans, Latest edition, Department of Transportation
1-7.2 CONTRACT BONDS
The Performance Bond shall remain in force until the date of recordation of the Notice of Completion and the end of all warranty periods set forth in the Contract Documents. The Payment Bond shall remain in force until expiration of the time within which the California Labor Commissioner may serve a civil wage and penalty assessment against the principal, any of its subcontractors, or both the principal and its subcontractors pursuant to Labor Code Section 1741, and until the expiration of the time within which a joint labor management committee may commence an action against the principal, any of its subcontractors, or both the principal and its subcontractors pursuant to Labor Code Section 1771.2.

All Bonds must be submitted using the required forms, which are in the Contract Documents, or on any other form approved by the City Attorney.

SECTION 2. SCOPE OF THE WORK
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2.2 PERMITS
Before starting any construction work, the Contractor will be required to obtain all necessary permits from the City, which may include obtaining a no fee encroachment permit for Work within the public right-ofway, as well as all other permits required from all other agencies. Should the Project require construction of trenches or excavations which are five (5) feet or deeper and into which a person is required to descend, the Contractor shall obtain a Cal/OSHA permit and furnish the City with a copy before Work commences on this Project. The Contractor shall bear all cost for fees for all agencies except for the City’s permit fees.

2.4 COOPERATION AND COLLATERAL WORK
The Contractor shall be responsible for coordinating all Work with the City’s street sweeping, trash pickup, and street maintenance contractors, emergency services departments, utility companies’ crews, and others when necessary. Payment for conforming to these requirements shall be included in other items of Work, and no additional payment shall be made thereof. 2-5.4 Haul Routes
Subsection 2-5.4 of Part 1 of the Standard Specifications shall be deleted and replaced as follows:

The Contractor must obtain the City Engineer’s approval before using any haul routes.

Further detail requirements for haul traffic are delineated in the Special Provisions. 2-7 CHANGES INITIATED BY THE AGENCY
2-7.1 General.

The City reserves the right, without notice to the Surety, to increase or decrease the quantity of any item or portion of the Work described in the Contract Documents or to alter or omit portions of the Work so described, as may be deemed necessary or expedient by the City Engineer, without in any way making the Contract void. Such increases, alterations or decreases of Work shall be considered and treated as though originally contracted for, and shall be subject to all the terms, conditions and provisions of the original Contract. The Contractor shall not claim or bring suit for damages, whether for loss of profits or otherwise, on account of any decrease, alteration or omission of any kind of Work to be done. 2-8 EXTRA WORK
New and unforeseen work will be classified as Extra Work only when the Work is not covered and cannot be paid for under any of the various items or combination of items for which a Bid price appears on the Bid. The Contractor shall not do any Extra Work except upon written order from the City Engineer.

SECTION 3. CONTROL OF THE WORK
3-1 ASSIGNMENT
Any purported assignment without written consent of the City shall be null, void, and of no effect, and the Contractor shall hold harmless, defend and indemnify the City and its officers, officials, employees, Docusign Envelope ID: CF7876E0-BA02-4768-8AC4-7D1E58ED6C78 183381
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agents and representatives with respect to any claim, demand or action arising from or relating to any unauthorized assignment.

If the City opts to consent to assignment, the City’s consent shall be contingent upon: (1) a letter from the Surety agreeing to the assignment and assigning all of the Bonds to the assignee without any reduction, or the assignee supplying all new Bonds in the amounts originally required under the Contract Documents; and (2) the assignee supplying all of the required insurance in the amounts required in the Contract Documents. Until the Surety assigns all of the Bonds or the assignee supplies all of the new Bonds, and until the assignee supplies all of the required insurance, an assignment otherwise consented to in writing by the City shall not be effective. Even if the City consents to assignment, no assignment shall relieve the Contractor of liability under the Contract. 3-5 INSPECTION
The Contractor shall arrange and pay for all off-site inspection of the Work required by any ordinance or governing authorities. The Contractor shall also arrange and pay for other inspections, including tests in connection therewith, as may be assigned or required.

3.7 CONTRACT DOCUMENTS
3-7.1 General
In addition to the requirements under Section 3-7.1 in the Standard Specifications, the Contractor shall maintain a control set of Plans and Specifications on the Project site at all times. All final locations determined in the field, and any deviations from the Plans and Specifications, shall be marked in red on the control set to show the as-built conditions. This control set of Plans shall also be edited for all Addenda, Requests for Information, Change Orders, field changes not involving cost, and any other variation that occurred during construction. Upon completion of all Work, the Contractor shall return the control set to the City Engineer. Final payment will not be made until this requirement is met.

Where a work feature is shown on the drawings or identified in the Specifications but is not specifically indicated as an item in the bid sheets, and there is no ambiguity regarding the requirement to construct, install, or construct and install that work feature, the Contractor is required to complete the work feature.

All costs to the Contractor for constructing, installing, or both constructing and installing such a work feature shall be included in the Bid.
3-7.2 Precedence of the Contract Documents
With regard to Section 3-7.2 in the Standard Specifications, the Special Provisions shall control over the General Provisions, such that the order of precedence shall be as follows:

1. Permits issued by regulatory agencies with jurisdiction.

2. Change Orders and Supplemental Agreements, whichever occurs last.

3. Contract/Agreement.

4. Bid.

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5. Special Provisions.

6. General Provisions.

7. Plans.

8. Standard Plans.

9. Standard Specifications.

10. Reference Specifications.
3-9 SUBSURFACE DATA
If the City or its consultants have made investigations of subsurface conditions in areas where the Work is to be performed, such investigations shall be deemed made only for the purpose of study and design.

If a geotechnical or other report has been prepared for the Project, the Contractor may inspect the records pertaining to such investigations subject to and upon the conditions hereinafter set forth. The inspection of the records shall be made in the office of the City Engineer. It is the Contractor’s sole responsibility to determine whether such investigations exist, and the City makes no affirmative or negative representation concerning the existence of such investigations.

The records of any such investigations are made available solely for the convenience of the Contractor. It is expressly understood and agreed that the City, the City Engineer, their agents, consultants or employees assume no responsibility whatsoever with respect to the sufficiency or accuracy of any investigations, the records thereof, and the interpretations set forth therein. No warranty or guarantee is expressed or implied that the conditions indicated by any such investigations or records are representative of those existing in the Project area. The Contractor agrees to make such independent investigations and examination as necessary to be satisfied of the conditions to be encountered in the performance of the Work.

The Contractor represents that it has studied the Plans, Specifications and other Contract Documents, and all surveys and investigation reports of subsurface and latent physical conditions, has made such additional surveys and investigations as necessary for the performance of the Work at the Contract Price in accordance with the requirements of the Contract Documents, and that it has correlated the results of all such data with the requirements of the Contract Documents. No claim of any kind shall be made or allowed for any error, omission or claimed error or omission, in whole or in part, of any geotechnical exploration or any other report or data furnished or not furnished by the City. 3-10 SURVEYING
3-10.1 General
The Contractor shall verify all dimensions on the drawings and shall report to the City any discrepancies before proceeding with related Work. The Contractor shall perform all survey and layout Work per the benchmark information on the Project Plans. All surveying Work must conform to the Professional Land Surveyors’ Act (Business and Professions Code Section 8700 et seq.). All Project surveying notes and “cutDocusign Envelope ID: CF7876E0-BA02-4768-8AC4-7D1E58ED6C78 183583
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sheets” are to be provided to the City after the completion of each surveying activity and all final surveying notes shall be provided before final payment to the Contractor.

Construction stakes shall be set and stationed by the Contractor at its expense. Unless otherwise indicated in the Special Provisions, surveying costs shall be included in the price of items bid. No separate payment will be made. Re-staking and replacement of construction survey markers damaged as a result of the Work, vandalism, or accident shall be at the Contractor’s expense. 3-11 CONTRACT INFORMATION SIGNS
The names, addresses and specialties of the Contractor, Subcontractors, architects or engineers may not be displayed on any signage within the public right-of-way. This signage prohibition includes advertising banners hung from truck beds or other equipment.
3-12 WORKSITE MAINTENANCE
3-12.1 General.

Clean-up shall be done as Work progresses at the end of each day and thoroughly before weekends. The Contractor shall not allow the Work site to become littered with trash and waste material, but shall maintain the same in a neat and orderly condition throughout the construction operation. Materials which need to be disposed shall not be stored at the Project site, but shall be removed by the end of each Working Day. If the job site is not cleaned to the satisfaction of the City Engineer, the cleaning will be done or contracted by the City and shall be back-charged to the Contractor and deducted from the Contract Price.

The Contractor shall promptly remove from the vicinity of the completed Work, all rubbish, debris, unused materials, concrete forms, construction equipment, and temporary structures and facilities used during construction. Final acceptance of the Work by the City will be withheld until the Contractor has satisfactorily complied with the foregoing requirements for final clean-up of the Project site.

3.12.4 Storage of Equipment and Materials.
3-12.4.1 General
The Contractor shall make arrangements for storing its equipment and materials. The Contractor shall make its own arrangements for any necessary off-site storage or shop areas necessary for the proper execution of the Work. Approved areas within Work site may be used for temporary storage; however, the Contractor shall be responsible for obtaining any necessary permits from the City. In any case, the Contractor’s equipment and personal vehicles of the Contractor’s employees shall not be parked on the traveled way or on any section where traffic is restricted at any time.

The Contractor shall deliver, handle, and store materials in accordance with the manufacturer’s written recommendations and by methods and means that will prevent damage, deterioration, and loss including theft. Delivery schedules shall be controlled to minimize long-term storage of products at the Project site and overcrowding of construction spaces. In particular, the Contractor shall provide delivery and Docusign Envelope ID: CF7876E0-BA02-4768-8AC4-7D1E58ED6C78 183684
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installation coordination to ensure minimum holding or storage times for materials recognized to be flammable, hazardous, easily damaged, or sensitive to deterioration, theft, and other sources of loss.

Storage shall be arranged to provide access for inspection. The Contractor shall periodically inspect to assure materials are undamaged and are maintained under required conditions.

All costs associated with the clean-up and storage required to complete the Project shall be the sole responsibility of the Contractor.
3-12.4.2 Storage in Public Streets
The first sentence of Section 3-12.4.2 shall not be incorporated and shall instead be replaced with the following:

Construction materials and equipment shall not be stored in streets, roads, or highways unless otherwise specified in the Special Provisions or approved by the City Engineer. 3-13 COMPLETION, ACCEPTANCE, AND WARRANTY
3-13.1 Completion.

The Contractor shall complete all Work under the Contract within Two Hundred Fifty (250) Working Days from the Notice to Proceed.
3-13.2 Acceptance
The Project will not be considered complete and ready for City Council direction to staff regarding recordation of the Notice of Completion until all required Work is completed, the Work site is cleaned up in accordance with Section 3-12 of Part 1 of the Standard Specifications and the Special Provisions, and all of the following items have been received by the City Engineer:

1. A form of Notice of Completion, with all information required by the California Civil Code;

2. All written guarantees and warranties;

3. Evidence that the Performance Bond has been extended and will remain in effect for the period specified in Section 1-7.2 of the Standard Specifications, as modified by these General Provisions;

4. All “as-builts”;

5. Duplicate copies of all operating instructions and manufacturer’s operating catalogs and data, together with such field instructions as necessary to fully instruct City personnel in correct operation and maintenance procedures for all equipment installed listed under the electrical, air conditioning, heating, ventilating and other trades. This data and instructions shall be furnished for all equipment requiring periodic adjustments, maintenance or other operation procedures.

The Contractor shall allow at least seven (7) Working Days’ notice for final inspection. Such notice shall be submitted to the City Engineer in writing.

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3-13.3 Warranty
For the purposes of the calculation of the start of the warranty period, the Work shall be deemed to be completed upon the date of recordation of the Notice of Completion. If that direction is contingent on the completion of any items remaining on a punchlist, the Work shall be deemed to be completed upon the date of the City Engineer’s acceptance of the final item(s) on that punchlist.

The Contractor shall repair or replace defective materials and workmanship as required in this Section 3-

13.3 at its own expense. Additionally, the Contractor agrees to defend, indemnify, and hold the City harmless from claims of any kind arising from damage, injury or death due to such defects.

The parties agree that no certificate given shall be conclusive evidence of the faithful performance of the Contract, either in whole or in part, and that no payment shall be construed to be in acceptance of any defective Work or improper materials. Further, the certificate or final payment shall not terminate the Contractor’s obligations under the warranty herein. The Contractor agrees that payment of the amount due under the Contract and the adjustments and payments due for any Work done in accordance with any alterations of the same, shall release the City, the City Council and its officers and employees from any and all claims or liability on account of Work performed under the Contract or any alteration thereof.

SECTION 4. CONTROL OF MATERIALS
4-1 GENERAL
The Contractor and all Subcontractors, suppliers, and vendors shall guarantee that the Work will meet all requirements of this Contract as to the quality of materials, equipment, and workmanship. 4-4 TESTING
Except as elsewhere specified, the City shall bear the cost of testing materials and workmanship that meet or exceed the requirements indicated in the Standard Specifications and the Special Provisions. The cost of all other tests, including the retesting of material or workmanship that fails to pass the first test, shall be borne by the Contractor.
4-6 TRADE NAMES
If the Contractor requests to substitute an equivalent item for a brand or trade name item, the burden of proof as to the comparative quality and suitability of alternative equipment or articles or materials shall be upon the Contractor, and the Contractor shall furnish, at its own expense, all information necessary or related thereto as required by the City Engineer. All requests for substitution shall be submitted, together with all documentation necessary for the City Engineer to determine equivalence, no later than five (5) Days after the award of Contract, unless a different deadline is listed in the Special Provisions.

SECTION 5. LEGAL RELATIONS AND RESPONSIBILITIES
5-3 LABOR
5-3.1 Public Work
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The Contractor acknowledges that the Project is a “public work” as defined in Labor Code Section 1720 et seq. (“Chapter 1”), and that the Project is subject to (a) Chapter 1, including without limitation Labor Code Section 1771 and (b) the rules and regulations established by the Director of Industrial Relations (“DIR”) implementing such statutes. The Contractor shall perform all Work on the Project as a public work. The Contractor shall comply with and be bound by all the terms, rules and regulations described in (a) and (b) as though set forth in full herein.
5-3.2 Copies of Wage Rates
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 Project are on file at City Hall and will be made available to any interested party on request. By initiating any Work, the Contractor acknowledges receipt of a copy of the DIR determination of such prevailing rate of per diem wages, and the Contractor shall post such rates at each job site covered by these Contract Documents.

The Contractor 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 Contractor shall, as a penalty paid to the City, forfeit two hundred dollars ($200) 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 these Contract Documents by the Contractor or by any Subcontractor. 5-3.3 Payroll Records
The Contractor shall comply with and be bound by the provisions of Labor Code Section 1776, which requires the Contractor and each Subcontractor to (1) keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776, (2) certify and make such payroll records available for inspection as provided by Section 1776, and (3) inform the City of the location of the records. The Contractor has ten (10) days in which to comply subsequent to receipt of a written notice requesting these records, or as a penalty to the City, the Contractor shall forfeit one hundred dollars ($100) for each Day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Labor Standards Enforcement, these penalties shall be withheld from progress payments then due.

The Contractor and each Subcontractor shall comply with and be bound by the provisions of Labor Code Section 1771.4(a)(3), which requires that each Contractor and each Subcontractor shall furnish the records specified in Section 1776 directly to the Labor Commissioner at least monthly, in a format prescribed by the Labor Commissioner.
5-3.4 Hours of Labor
The Contractor acknowledges that eight (8) hours labor constitutes a legal day’s work. The Contractor shall comply with and be bound by Labor Code Section 1810. The Contractor shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The Contractor shall, as a penalty paid to the City, forfeit twenty-five dollars ($25) for each worker employed in the performance of the Project by the Contractor or by any Subcontractor for each calendar Docusign Envelope ID: CF7876E0-BA02-4768-8AC4-7D1E58ED6C78 183987
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day during which such worker is required or permitted to work more than eight (8) hours in any one (1) calendar day and forty (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 the Contractor in excess of eight (8) hours per day, and forty (40) hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than one and one-half (1-1/2) times the basic rate of pay. 5-3.5 Apprentices
The Contractor shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6 and 1777.7 and California Code of Regulations Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects. The Contractor shall be responsible for compliance with these Sections for all apprenticeable occupations. Before commencing Work on the Project, the Contractor shall provide the City with a copy of the information submitted to any applicable apprenticeship program.

Within sixty (60) Days after concluding Work, Contractor and each of its Subcontractors shall submit to the City a verified statement of the journeyman and apprentice hours performed under this Contract. 5-3.6 Debarment or Suspension
The Contractor 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 Contractor and Subcontractors shall not be debarred or suspended throughout the duration of this Contract 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 Contractor or any Subcontractor becomes debarred or suspended during the duration of the Project, the Contractor shall immediately notify the City.
5-3.7 Registration with the DIR
In accordance with Labor Code Sections 1725.5 and 1771.1, no contractor or subcontractor shall be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, unless currently registered and qualified to perform public work pursuant to Section 1725.5. 5-3.8 Compliance Monitoring and Posting Job Sites
The Project is subject to compliance monitoring and enforcement by the DIR. The Contractor shall post job site notices, as prescribed by regulation.
5-3.9 Subcontractors
For every Subcontractor who will perform Work on the Project, the Contractor shall be responsible for such Subcontractor’s compliance with Chapter 1 and Labor Code Sections 1860 and 3700, and the Contractor shall include in the written Contract between it and each Subcontractor a copy of the provisions in this Section 5-3 of the General Provisions and a requirement that each Subcontractor shall comply with those provisions. The Contractor shall be required to take all actions necessary to enforce Docusign Envelope ID: CF7876E0-BA02-4768-8AC4-7D1E58ED6C78 184088
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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 its workers the specified prevailing rate of wages. The Contractor shall diligently take corrective action to halt or rectify any failure. 5-3.10 Prevailing Wage Indemnity
To the maximum extent permitted by law, the Contractor shall indemnify, hold harmless and defend (at the Contractor’s expense with counsel reasonably acceptable to the City) the City, its officials, officers, employees, agents and independent contractors serving in the role of City officials, and volunteers from and against any demand or claim for damages, compensation, fines, penalties or other amounts arising out of or incidental to any acts or omissions listed in Section 5-3 of the General Provisions by any Person (including the Contractor, its Subcontractors, and each of their officials, officers, employees and agents) in connection with any Work undertaken or in connection with the Contract Documents, including without limitation the payment of all consequential damages, attorneys’ fees, and other related costs and expenses. All duties of the Contractor under this Section 5-3.10 shall survive expiration or termination of the Contract.
5-4 INSURANCE
5-4.1 General
The first paragraph of Section 5-4.1 of Part 1 of the Standard Specifications shall not be incorporated and shall instead be replaced with the following:

The Contractor shall provide and maintain insurance naming the City, its elected and appointed officials, officers, employees, attorneys, agents, volunteers, and independent contractors in the role of City officials as insureds or additional insureds regardless of any inconsistent statement in the policy or any subsequent endorsement whether liability is attributable to the Contractor or the City. The insurance provisions shall not be construed to limit the Contractor’s indemnity obligations contained in the Contract. The City shall not be liable for any accident, loss or damage to the Work prior to completion, except as otherwise specified in Section 6-5.
5-4.2 General Liability Insurance
The Contractor shall at all times during the term of the Contract carry, maintain, and keep in full force and effect the insurance referenced in Section 5-4 of Part 1 of the Standard Specifications, as modified below. 5-4.2.1 Additional Insureds
The City, its elected and appointed officials, officers, employees, attorneys, agents, volunteers, and independent contractors in the role of City officials, shall be the insured or named as additional insureds covering the Work, regardless of any inconsistent statement in the policy or any subsequent endorsement, whether liability is attributable to the Contractor or the City.

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5-4.2.2 No Limitation on Indemnity
The insurance provisions shall not be construed to limit the Contractor’s indemnity obligations contained in these Contract Documents.
5-4.2.3 Replacement Insurance
The Contractor agrees that it will not cancel, reduce or otherwise modify the insurance coverage required by this Section 5-4 during the term of the Contract. The Contractor agrees that if it does not keep the required insurance in full force and effect, and such insurance is available at a reasonable cost, the City may take out the necessary insurance and pay the premium thereon, and the repayment thereof shall be deemed an obligation of the Contractor and the cost of such insurance may be deducted, at the option of the City, from payments due the Contractor. This shall be in addition to all other legal options available to the City to enforce the insurance requirements.
5-4.2.4 Certificates of Insurance with Original Endorsements The Contractor shall submit to the City certificates of insurance with the original endorsements, both of which reference the same policy number, for each of the insurance policies that meet the insurance requirements, not less than one (1) day before beginning of performance under the Contract. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf.

Endorsements must be executed on forms titled approved by the City. The endorsements must specifically name the City of Banning and its elected and appointed officials, officers, employees, attorneys, agents, volunteers, and independent contractors in the role of City officials as insureds or additional insureds. Current insurance certificates and endorsements shall be kept on file with the City at all times during the term of this Contract. The City reserves the right to require complete, certified copies of all required insurance policies at any time.
5-4.2.5 Subcontractors
The Contractor shall require each of its Subcontractors that perform services under the Contract to maintain insurance coverage that meets all of the requirements of this Section 5-4. 5-4.5 Insurance Requirements not Limiting
If the Contractor maintains broader coverage and/or higher limits than the minimums required in this Section 5-4, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. No representation is made that the minimum insurance requirements of this Contract are sufficient to cover the obligations of the Contractor under this Contract.

5.7 SAFETY
5-7.8 Steel Plate Covers
5-7.8.1 General
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The Contractor shall cover all openings, trenches and excavations at the end of each Work Day with steel plate covers.

Section 5-8 is hereby added to Section 5 of Part 1 of the Standard Specifications, as follows:
5-8 INDEMNIFICATION
The following indemnity provisions shall supersede the indemnity in Section 5-4.1 of the Standard Specifications.
5-8.1 Contractor’s Duty
To the fullest extent permitted by law, the Contractor shall, at its sole cost and expense, defend, hold harmless and indemnify the City and its elected officials, officers, attorneys, agents, employees, 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, stop payment notices, 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”), in law or 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 the Contractor, its officers, agents, servants, employees, Subcontractors, materialmen, contractors or their officers, agents, servants or employees (or any entity or individual for whom the Contractor bears legal liability) in the performance of the Contract, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees, as determined by court decision or by the agreement of the Parties. The Contractor 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. The Contractor shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith. The City shall not be liable for any accident, loss, or damage to the Work prior to completion, except as otherwise specified in Section 6-5. 5-8.1.1 Taxes and Workers’ Compensation
The Contractor shall pay all required taxes on amounts paid to the Contractor under the Contract, and indemnify and hold the City harmless from any and all taxes, assessments, penalties, and interest asserted against the City by reason of the independent contractor relationship created by the Contract. The Contractor shall fully comply with the Workers’ Compensation law regarding the Contractor and the Contractor’s employees. The Contractor shall indemnify and hold the City harmless from any failure of the Contractor to comply with applicable Workers’ Compensation laws. The City may offset against the amount of any fees due to the Contractor under the Contract any amount due to the City from the Contractor as a result of the Contractor’s failure to promptly pay to the City any reimbursement or indemnification arising under this Subsection 5-8.1.1.
5-8.1.2 Subcontractor Indemnity Agreements
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The Contractor shall obtain executed indemnity agreements with provisions identical to those in this Section 5-8 from each and every Subcontractor or any other person or entity involved by, for, with or on behalf of the Contractor in the performance of the Contract. If the Contractor fails to obtain such indemnity obligations, the Contractor 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 the Contractor’s Subcontractor, its officers, agents, servants, employees, subcontractors, materialmen, contractors, or their officers, agents, servants, or employees (or any entity or individual for whom the Contractor’s Subcontractor bears legal liability) in the performance of the Contract, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees, as determined by final court decision or by the agreement of the parties. 5-8.2 Workers’ Compensation Acts not Limiting
The Contractor’s indemnifications and obligations under this Section 5-8, or any other provision of the Contract, shall not be limited by the provisions of any Workers’ Compensation act or similar act. The Contractor expressly waives its statutory immunity under such statutes or laws as to the City, its officers, agents, employees, and volunteers.
5-8.3 Insurance Requirements not Limiting
The City does not, and shall not, waive any rights that it may possess against the Contractor because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to the Contract. The indemnities in this Section 5-8 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 the City.
5-8.4 Civil Code Exception
Nothing in this Section 5-8 shall be construed to encompass Indemnitees’ sole negligence or willful misconduct to the limited extent that the underlying Contract is subject to Civil Code Section 2782(a) or the City’s active negligence to the limited extent that the underlying Contract Documents are subject to Civil Code Section 2782(b), provided such sole negligence, willful misconduct or active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. 5-8.5 Nonwaiver of Rights
Indemnitees do not and shall not waive any rights that they may possess against the Contractor because the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to these Contract Documents. This indemnity provision is effective regardless of any prior, concurrent, or subsequent active or passive negligence by Indemnitees and shall operate to fully indemnify Indemnitees against any such negligence.
5-8.6 Waiver of Right of Subrogation
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The Contractor, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against the Indemnitees, while acting within the scope of their duties, from all Claims arising out of or incident to the activities or operations performed by or on behalf of the Contractor regardless of any prior, concurrent or subsequent active or passive negligence by Indemnitees. 5-8.7 Survival of Terms
The Contractor’s indemnifications and obligations under this Section 5-8 shall survive the expiration or termination of the Contract, are intended to be as broad and inclusive as is permitted by the law of the State, and are in addition to any other rights or remedies that Indemnitees may have under the law.

Payment is not required as a condition precedent to an Indemnitee’s right to recover under this indemnity provision, and an entry of judgment against the Contractor shall be conclusive in favor of the Indemnitee’s right to recover under this indemnity provision.

SECTION 6. PROSECUTION AND PROGRESS OF THE WORK
6-1 CONSTRUCTION SCHEDULE AND COMMENCEMENT OF THE WORK
6-1.1 Construction Schedule
One (1) week before the scheduled pre-construction meeting, the Contractor must submit to the City Engineer for review and approval the construction schedule required by the first paragraph of Section 6-

1.1. The Contractor shall make revisions as required by the City Engineer. The schedule must account for all subcontract work, as well as the work of the Contractor, submittals, coordination with the other contractors performing concurrent work and the Traffic Control Plan. The Contractor shall update this Construction Schedule when directed by the City Engineer, or when:
a. A Change Order significantly affects the Contract completion date or the sequence of construction approach or activities; or
b. The actual sequence of the Work, or the planned sequence of the Work, is changed and does not conform to the Contractor’s current accepted Project construction schedule.

The Contractor shall submit an updated construction schedule with its monthly invoice every month. Progress payments shall be contingent upon the receipt of monthly updated construction schedules.
6-1.1.1 Pre-Construction Conference
Approximately One (1) week before the commencement of Work at the site, a pre-construction conference will be held at the City and shall be attended by the Contractor’s Project manager, its on-site field superintendent, and any Subcontractors that the Contractor deems appropriate. Attendance by the Contractor and any Subcontractors designated is mandatory.

Contractor shall submit its twenty-four (24) hour emergency telephone numbers to the City Engineer for approval a minimum of One (1) week before the pre-construction conference. Unless previously Docusign Envelope ID: CF7876E0-BA02-4768-8AC4-7D1E58ED6C78 184593
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submitted to the City Engineer, the Contractor shall bring to the pre-construction conference copies of each of the following:
1) Construction Schedule.
2) Procurement schedule of major equipment and materials and items requiring long lead time.
3) Shop drawing/sample submittal schedule.
4) Preliminary schedule of values (lump sum price breakdown) for progress payment purposes.
5) Written designation of the on-site field superintendent and the Project manager. Both daytime and emergency telephone numbers shall be included in the written designation.

The purpose of the conference is to designate responsible personnel and establish a working relationship.

The parties will discuss matters requiring coordination and establish procedures for handling such matters. The complete agenda will be furnished to the Contractor before the meeting date. The Contractor shall be prepared to discuss all of the items listed below. 1) The Contractor’s construction schedule.
2) Notification of local residents before starting any Work and keeping them informed throughout the Project.
3) Procedures for transmittal, review, and distribution of the Contractor’s submittals. 4) Processing applications for payment.
5) Maintaining record documents.
6) Critical Work sequencing.
7) Maintaining sewage service during construction, including proposed by-passes. 8) NPDES requirements, if any.
9) Field decisions and Change Orders.
10) Use of Project site, office and storage areas, security, housekeeping, and the City’s needs. 11) Major equipment deliveries and priorities.
12) Traffic control.
13) Any other item that the City representative states is relevant to the meeting. 6-1.1.2 Weekly Progress Meetings
Progress meetings will be held each week during the course of the Project. The meeting location, day of the week and time of day will be mutually agreed to by the City and the Contractor. The Contractor shall provide a two (2) week “look ahead” schedule for each meeting. The construction manager will preside Docusign Envelope ID: CF7876E0-BA02-4768-8AC4-7D1E58ED6C78 184694
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at these meetings and will prepare the meeting agenda, meeting minutes and will distribute minutes to all persons in attendance. As the Work progresses, if it is determined by agreement of the attendees, that weekly meetings are not necessary, the weekly progress meetings may be changed to bi-weekly progress meetings.
6-1.2 Commencement of the Work
The Contractor shall not begin any construction activity at the site before the issuance of the Notice to Proceed. Any Work that is done by the Contractor in advance of the Notice to Proceed shall be considered as being done at the Contractor’s own risk and responsibility, and as a consequence will be subject to rejection.

Section 6-1.3 is hereby added to Section 6 of Part 1 of the Standard Specifications, as follows:
6-1.3 Working Days And Hours
The Contractor shall do all Work between the hours of 7:00 a.m. to 5:00 p.m., Monday through Friday.

No Work will be allowed on Saturday or Sunday or City holidays, which are as follows: New Year’s Day, Martin Luther King Jr. Day, President’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, the Day After Thanksgiving, Christmas Eve Day, Christmas Day, and New Year’s Eve. In addition, no Work will be allowed on any special election Day that may be declared. Should a special election be declared, a time extension of one (1) Working Day will be granted for each such Day.

A permit may have other hours or Days for the Contractor to do the Work, and those hours and Days shall supersede any hours and Days written in this Section.

Whenever the Contractor is permitted or directed to perform night Work or to vary the period during which Work is performed during the Working Day, the Contractor shall give twenty-four (24) hours’ notice to the City Engineer so that inspection may be provided. A charge may be made to the Contractor for approved overtime or weekend inspections requested by the Contractor. 6-4 DELAYS AND EXTENSIONS OF TIME
6-4.1 General.

Unless otherwise agreed in writing, an adjustment to the Contract time by reason of a Change Order shall be agreed to at the time the Change Order is issued and accepted by Contractor. If the Change Order does not reserve the right of the parties, or either of them, to seek an adjustment to the Contract time, then the parties forever relinquish and waive such right and there shall be no further adjustments to the Contract time.

No extension of time will be granted for any event, including pandemics, leading to the issuance of a “stay at home” or similar kind of order by any local, State, or federal governmental authority, if the Work has been deemed, either by emergency order or proclamation, or operation of law, to be an essential service that is exempt from such stay at home or similar order. 6-4.2 Extensions of Time
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In the event it is deemed appropriate by the City to extend the time for completion of the Work, any such extension shall not release any guarantee for the Work required by the Contract Documents, nor shall any such extension of time relieve or release the Sureties on the Bonds executed. In executing such Bonds, the Sureties shall be deemed to have expressly agreed to any such extensions of time. The amount of time allowed by an extension of time shall be limited to the period of the delay giving rise to the same as determined by the City. Notwithstanding any dispute which may arise in connection with a claim for adjustment of the Contract time, the Contractor shall promptly proceed with the Work. 6-4.3 Payment for Delays
Notwithstanding any other terms and conditions of the Contract Documents, the City shall have no obligation whatsoever to increase the Contract Price or extend the time for delays.

Unless compensation and/or markup is agreed upon by the City, the Contractor agrees that no payment of compensation of any kind shall be made to the Contractor for damages or increased overhead costs caused by any delays in the progress of the Contract, whether such delays are avoidable or unavoidable or caused by any act or omission of the City or its agents. Any accepted delay claim shall be fully compensated for by an extension of time to complete the performance of the Work.

This Section shall not apply to compensable delays caused solely by the City. If a compensable delay is caused solely by the City, the Contractor shall be entitled to a Change Order that: (1) extends the time for completion of the Contract by the amount of delay caused by the City; and (2) provides equitable adjustment, as determined by the City, to the Contractor. 6-8 TERMINATION OF THE CONTRACT FOR CONVENIENCE
The following sentence is added to Section 6-8:

In no event (including termination for impossibility or impracticability, due to conditions or events beyond the control of the City, for any other reason or for no reason) shall the total amount of money to Contractor exceed the amount which would have been paid to Contractor for the full performance of the services described in the Contract.
6-9 LIQUIDATED DAMAGES
Section 6-9 of Part 1 of the Standard Specifications shall not be incorporated and shall instead be replaced with the following:

Failure of the Contractor to complete the Work within the time allowed will result in damages being sustained by the City. Such damages are, and will continue to be, impractical and extremely difficult to determine. For each consecutive calendar day in excess of the time specified for completion of the Work, as adjusted in accordance with 6-4, the Contractor shall pay to the City, or have withheld from moneys due the Contractor, the sum of $750.00.

Execution of the Contract shall constitute agreement by the City and the Contractor that $750.00 per Day is the minimum value of the costs and actual damage caused by the failure of the Contractor to complete Docusign Envelope ID: CF7876E0-BA02-4768-8AC4-7D1E58ED6C78 184896
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the Work within the allotted time. Such sum is liquidated damages and shall not be construed as a penalty, and may be deducted from payments due the Contractor if such delay occurs.

For the purposes of the calculation of the start of the liquidated damages, the Work shall be deemed to be completed when the same has been completed in accordance with the Plans and Specifications therefor and to the satisfaction of the City Engineer, and the City Engineer has certified such completion in accordance with Section 3-13.1 of Part 1 of the Standard Specifications.

SECTION 7. MEASUREMENT AND PAYMENT

7.3 PAYMENT

7.3.1 General
The unit and lump sum prices to be paid shall constitute full compensation for all labor, equipment, materials, tools and incidentals required to complete the Project as outlined in these Contract Documents and as directed by the City Engineer. In accordance with Public Contract Code Section 7107, if no claims have been filed and are still pending, the amount deducted from the final estimate and retained by the City will be paid to the Contractor except such amounts as are required by law to be withheld by properly executed and filed notices to stop payment, or as may be withheld for any other lawful purposes. 7-3.2 Partial and Final Payment
7-3.2.1 Monthly Closure Date and Invoice Date
For purposes of Section 7-3.2, the monthly closure date shall be the last Day of each month. A measurement of Work performed and a progress estimate of the value thereof based on the Contract and of the monthly payment shall be prepared by the Contractor and submitted to the City Engineer before the tenth (10th) Day of the following month for verification and payment consideration. 7-3.2.2 Payments
The City shall make payments within thirty (30) Days after receipt of the Contractor’s undisputed and properly submitted payment request, including an updated construction schedule pursuant to Section 6-

1.1 of the General Provisions. The City shall return to the Contractor any payment request determined not to be a proper payment request as soon as practicable, but not later than seven (7) Days after receipt, and shall explain in writing the reasons why the payment request is not proper. 7-3.2.3 Retention
The City shall withhold not less than five percent (5%) from each progress payment. However, at any time after fifty percent (50%) of the Work has been completed, if the City Council finds that satisfactory progress is being made, it may, at its discretion, make any of the remaining progress payments in full for actual Work completed. The City shall withhold not less than five percent (5%) of the Contract Price from the Final Payment Amount (defined in Section 7-3.2.4) until at least thirty-five (35) days after recordation of the Notice of Completion, or recordation of a notice of acceptance or cessation, but not later than the period permitted by Public Contract Code Section 7107.

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7-3.2.4 Final Invoice and Payment
Whenever the Contractor shall have completely performed the Contract in the opinion of the City Engineer, the City Engineer shall notify the City Clerk that the Contract has been completed in its entirety.

The Contractor shall then submit to the City Engineer a written statement of the final quantities of Contract items for inclusion in the final invoice. Upon receipt of such statement, the City Engineer shall check the quantities included therein and shall authorize a payment amount, which in the City Engineer’s opinion shall be just and fair, covering the value of the total amount of Work done by the Contractor, less all previous payments and all amounts to be retained under the provisions of the Contract Documents (“Final Payment Amount”). The City Engineer shall then request that the City accept the Work and that the City Clerk be authorized to file, on behalf of the City in the office of the County Recorder, a Notice of Completion of the Work herein agreed to be done by the Contractor. In addition, the final payment will not be released until the Contractor returns the control set of Plans and Specifications showing the redlined as-built conditions.
7-3.2.5 Substitute Security
In accordance with Public Contract Code Section 22300, the Contractor may request that it be permitted to substitute securities in lieu of having retention withheld by the City from progress payments when such payments become due or, in the alternative, the Contractor may request that the City make payments of earned retentions directly to an agreed upon designated escrow agent at the Contractor’s expense. If the Contractor selects either one of these alternatives, the following shall control.

7.3.2.5.1 Substitution of Securities for Performance Retention At some reasonable time before any progress payment would otherwise be due and payable to the Contractor in the performance of Work under these Contract Documents, the Contractor may submit a request to the City in writing to permit the substitution of retentions with securities equivalent to the amount estimated by the City (“estimated amount of retention”) to be withheld. The Contractor shall deposit such securities with the City or may, in the alternative, deposit such securities in escrow with a State or federally chartered bank in California, as the escrow agent, at the Contractor’s expense. Such securities will be the equivalent or greater in value of the estimated amount of retention. If the Contract is modified by written Modifications or Change Orders or the Contractor otherwise becomes entitled to receive an amount more than the Contract Price at the time the securities are deposited, the Contractor shall, at the request of the City, deposit with the City or escrow agent, whichever is applicable, additional securities within a reasonable time so that the amount of securities on deposit with the City or escrow agent is equivalent or greater in value than the amount of retention the City would otherwise be entitled to withhold from progress payments due or to become due to the Contractor as the Work progresses.

The City shall withhold any retention amount that exceeds the security amount until the additional securities are deposited and, if the deposit is with an escrow agent, the City has confirmation from that escrow agent of the new total value of securities. Upon satisfactory completion of the Contract, which shall mean, among other things, that the City is not otherwise entitled to retain proceeds from progress payments as elsewhere provided in the Contract or under applicable law, the securities shall be returned to the Contractor. The City shall, within its sole discretion, determine whether the amount of the securities on deposit with the City or escrow agent is equal to or greater than the amount of estimated Docusign Envelope ID: CF7876E0-BA02-4768-8AC4-7D1E58ED6C78 185098
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retention of progress payments that could otherwise be held by the City if the Contractor had not elected to substitute same with securities.
7-3.2.5.2 Deposit of Retention Proceeds with an Escrow Agent As an alternative to the substitution of securities, as provided above, or the City otherwise retaining and holding retention proceeds from progress payments, the Contractor may request the City to make payments of retentions earned directly to an escrow agent with the same qualifications as required in Section 7-3.2.5.1 above and at the expense of the Contractor. At its sole expense, the Contractor may direct the investment of such retention payments into only such securities as mentioned in Section 7-

3.2.5.4 below and shall be entitled to interest earned on such investments on the same terms provided for securities deposited by the Contractor. Upon satisfactory completion of the Contract, which shall mean when the City would not otherwise be entitled to withhold retention proceeds from progress payments had the Contractor not elected to have such proceeds deposited into escrow, the Contractor shall be allowed to receive from the escrow agent all securities, interest and payments deposited into escrow pursuant to the terms of this Section. The Contractor shall pay to each Subcontractor, not later than ten (10) Days of receipt of payment, the respective amount of interest earned, net of costs attributed to retention withheld from each Subcontractor, on the amount withheld to ensure performance of the Contractor.
7-3.2.5.3 Subcontractor Entitlement to Interest
If the Contractor elects to receive interest on any moneys withheld in retention by the City, then the Subcontractor shall receive the identical rate of interest received by the Contractor on any retention moneys withheld from the Subcontractor by the Contractor, less any actual pro rata costs associated with administering and calculating that interest. In the event that the interest rate is a fluctuating rate, the rate for the Subcontractor shall be determined by calculating the interest rate paid during the time that retentions were withheld from the Subcontractor. If the Contractor elects to substitute securities in lieu of retention, then, by mutual consent of the Contractor and the Subcontractor, the Subcontractor may substitute securities in exchange for the release of moneys held in retention by the Contractor. The Contractor shall pay each Subcontractor, not later than ten (10) Days after receipt of escrow moneys, the amount owed to each Subcontractor from the moneys plus the respective amount of interest earned, net of costs attributed to the retention held from each Subcontractor, on the amount of retention withheld to ensure performance of the Subcontractor.
7-3.2.5.4 Securities Eligible for Investment
Securities eligible for investment shall include those listed in Government Code Section 16430, bank or savings and loan certificates of deposit, interest-bearing demand deposit accounts, standby letters of credit, or any other security mutually agreed upon between the Contractor and the City. The Contractor shall be the beneficial owner of any securities substituted for any monies withheld and shall receive any interest thereon.
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The escrow agreement that shall be used for the deposit of securities in lieu of retention shall substantially conform to the form prescribed in Public Contract Code Section 22300(f). 7-3.2.5.6 Inconsistencies with Prevailing Statutory Requirements If there is any inconsistency between or differences in Public Contract Code Section 22300 and the terms of this provision, or any future amendments thereto, Section 22300 shall control.

Section 7-3.9 is hereby added to Section 7-3 of Part 1 of the Standard Specifications, as follows:
7-3.9 Audit
The City or its representative shall have the option of inspecting and/or auditing all records and other written materials used by the Contractor in preparing its billings to the City as a condition precedent to any payment to the Contractor or in response to a construction claim or a Public Records Act (Government Code Section 6250 et seq.) request. The Contractor will promptly furnish documents requested by the City at no cost. Additionally, the Contractor shall be subject to State Auditor examination and audit at the request of the City or as part of any audit of the City, for a period of three (3) years after final payment under the Contract. The Contractor shall include a copy of this Section 7-3.9 in all contracts with its Subcontractors, and the Contractor shall be responsible for immediately obtaining those records or other written material from its Subcontractors upon a request by the State Auditor or the City. If the Project includes other auditing requirements, those additional requirements will be listed in the Special Provisions.

SECTION 8 FACILITIES FOR AGENCY PERSONNEL
8-1 GENERAL
No field offices for City personnel shall be required; however, City personnel shall have the right to enter upon the Project at all times and shall be admitted to the offices of the Contractor to use the telephone, desk and sanitary facilities provided by the Contractor for its own personnel.

Section 9 is hereby added to Part 1 of the Standard Specifications, as follows:

SECTION 9. ADDITIONAL TERMS
9-1 NONDISCRIMINATORY EMPLOYMENT
The Contractor shall not unlawfully discriminate against any individual based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation or military and veteran status. The Contractor understands and agrees that it is bound by and will comply with the nondiscrimination mandates of all statutes and local ordinances and regulations. 9-3 CONTRACTOR’S RESPONSIBILITY FOR WORK
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Until the final acceptance of the Work by the City Council in accordance with Section 3-13.2 of the General Provisions, the Contractor shall have the charge and care thereof and shall bear the risk of injury or damage to any part of the Work by the action of the elements, criminal acts, or any other cause. The Contractor shall rebuild, repair, restore and make good all injuries or damages to any portion of the Work occasioned by any cause before its completion and acceptance and shall bear the expense thereof, except for such injuries or damages arising from the sole negligence or willful misconduct of the City, its officers, agents or employees. In the case of suspension of Work from any cause whatever, the Contractor shall be responsible for all materials and the protection of Work already completed, shall properly store and protect them if necessary, and shall provide suitable drainage and erect temporary structures where necessary.
9-4 PROCEDURE IN CASE OF DAMAGE TO PUBLIC PROPERTY
Any portions of curb, gutter, sidewalk or any other City improvement damaged by the Contractor during the course of construction shall be replaced by the Contractor at its own cost. The cost of additional replacement of curb, gutter or sidewalk in excess of the estimated quantities shown in the Bid form and Specifications, and found necessary during the process of construction (but not due to damage resulting from carelessness on the part of the Contractor during its operation), shall be paid to the Contractor at the unit prices submitted in the Contractor’s Bid.
9-5 REMOVAL OF INTERFERING OBSTRUCTIONS
The Contractor shall remove and dispose of all debris, abandoned structures, tree roots and obstructions of any character encountered during the process of excavation. It is understood that the cost of any such removals are made a part of the unit price bid by the Contractor under the item for excavation or removal of existing Work.
9-6 SOILS ENGINEERING AND TESTING
A certified materials testing firm may be retained by the City to perform materials tests during the Contractor’s entire operation to ascertain compliance with the Contract requirements. The City shall be responsible for the first series of tests. If the initial tests do not meet the Contract requirements, the Contractor shall bear the cost of all subsequent tests.

If the City requires other tests or more specific requirements for testing regarding this Project, those details will be included in the Special Provisions.
9-7 ACCESS TO PRIVATE PROPERTY
Unless otherwise stated in the Special Provisions, the Contractor shall be responsible for all fees and costs associated with securing permission to access private property for any portion of the Project. 9-9 CLAIM DISPUTE RESOLUTION
In the event of any dispute or controversy with the City over any matter whatsoever, the Contractor shall not cause any delay or cessation in or of Work, but shall proceed with the performance of the Work in Docusign Envelope ID: CF7876E0-BA02-4768-8AC4-7D1E58ED6C78 1853 901
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dispute. The Contractor shall retain any and all rights provided that pertain to the resolution of disputes and protests between the parties. The Disputed Work will be categorized as an “unresolved dispute” and payment, if any, shall be as later determined by mutual agreement or a court of law. The Contractor shall keep accurate, detailed records of all Disputed Work, claims and other disputed matters.

All claims arising out of or related to the Contract Documents or this Project, and the consideration and payment of such claims, are subject to Public Contract Code Section 9204 and Public Contract Code Section 20104 et seq. (Article 1.5), where applicable. This Contract hereby incorporates those provisions as though fully set forth herein. For purposes of this Section, “claim” means a separate demand by the Contractor sent by registered mail or certified mail with return receipt requested, for (i) a time extension, including, without limitation, for relief from damages or penalties for delay assessed by the City, (ii) payment by the City of money or damages arising from work done by, or on behalf of, the Contractor pursuant to the Contract Documents, payment for which is not otherwise expressly provided or to which the claimant is not otherwise entitled, or (iii) payment of an amount that is disputed by the City. The Contractor or any subcontractor must file a claim in accordance with Section 9204 and Article 1.5 (if applicable), and must then adhere to Section 9204 and Article 1.5 (as applicable).

In addition to compliance with Public Contract Code Section 9204 and Article 1.5, filing a claim in accordance with the Government Claims Act (Government Code Section 810 et seq.) is a prerequisite to filing any lawsuit against the City relating to this Contract. 9-10 THIRD PARTY CLAIMS
The City shall have full authority to compromise or otherwise settle any claim relating to the Project at any time. The City shall timely notify the Contractor of the receipt of any third-party claim relating to the Project. The City shall be entitled to recover its reasonable costs incurred in providing this notice. 9-11 COMPLIANCE WITH LAWS
The Contractor shall comply with all applicable federal, State and local laws, ordinances, codes and regulations in force at the time the Contractor performs pursuant to the Contract Documents. 9-12 REQUIREMENT TO MITIGATE THE SPREAD OF COVID-19
The Contractor and all Subcontractors for the Work shall comply with all applicable Federal, State, Los Angeles County, and City statutes, regulations, orders, and ordinances regarding COVID-19 Infection Prevention. This requirement specifically includes, without limitation, compliance with the “Safety and Health Guidance COVID-19 Infection Prevention in Construction” issued by the California Department of Industrial Relations, Division of Occupational Safety and Health and Safety on October 27, 2020, and as may be amended from time to time by the Department.

Prior to the pre-construction meeting, the Contractor shall submit to the City a “COVID-19 Mitigation Program” implementing these requirements and shall post the COVID-19 Mitigation Program on the Project site in a manner designated by the City’s Project Manager. The failure of employees or workers of the Contractor and all Subcontractors on the Work to comply with these requirements shall be a default per Section 6-7.1, and may also result in a suspension of the Work pursuant to Section 6-6. Contractor Docusign Envelope ID: CF7876E0-BA02-4768-8AC4-7D1E58ED6C78 1854 902
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acknowledges that, in the event that the Engineer suspends the Work as a result of such failure by the Contractor or one of its Subcontractors to comply with these requirements, the City is not responsible for the delay, and that pursuant to Section 6-6.1 the Contractor is not entitled to compensation. The Contractor shall also pay to the City the costs and expenses incurred by the City resulting from the failure of employees of the Contractor and all Subcontractors on the Work to comply with these requirements including, but not limited to, the salaries and benefits for City employees who are unable to work due to exposure to COVID-19 as a result of such failure, and workers’ compensation benefits and expenses.

Delays in the Work resulting from the Contractor’s or its Subcontractor’s failure to comply with these regulations shall not be considered an unforeseen event entitling the Contractor to an extension of time or payment for delay pursuant to Section 6-4 of the Standard Specifications. 9-13 CONTRACTOR’S REPRESENTATIONS
By signing the Contract, the Contractor represents, covenants, agrees, and declares under penalty of perjury under the laws of the State of California that: (a) the Contractor is licensed, qualified, and capable of furnishing the labor, materials, and expertise necessary to perform the services in accordance with the terms and conditions set forth in the Contract Documents; (b) there are no obligations, commitments, or impediments of any kind that will limit or prevent its full performance under the Contract Documents; (c) there is no litigation pending against the Contractor that could adversely affect its performance of the Contract, and the Contractor is not the subject of any criminal investigation or proceeding; and (d) to the Contractor’s actual knowledge, neither the Contractor nor its personnel have been convicted of a felony. 9-14 CONFLICTS OF INTEREST
The Contractor agrees not to accept any employment or representation during the term of the Contract or within twelve (12) months after acceptance as defined in Section 3-13.2 of the General Provisions that is or may likely make the Contractor “financially interested,” as provided in Government Code Sections 1090 and 87100, in any decisions made by the City on any matter in connection with which the Contractor has been retained pursuant to the Contract Documents.
9-15 APPLICABLE LAW
The validity, interpretation, and performance of these Contract Documents shall be controlled by and construed under the laws of the State of California, excluding California’s choice of law rules. Venue for any such action relating to the Contract shall be in Superior Court with geographic jurisdiction over the City.
9-16 TIME
Time is of the essence in these Contract Documents.
9-17 INDEPENDENT CONTRACTOR
The Contractor and Subcontractors shall at all times remain, as to the City, wholly independent contractors. Neither the City nor any of its officials, officers, employees or agents shall have control over the conduct of the Contractor, Subcontractors, or any of their officers, employees, or agents, except as Docusign Envelope ID: CF7876E0-BA02-4768-8AC4-7D1E58ED6C78 1855 903
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herein set forth, and the Contractor and Subcontractors are free to dispose of all portions of their time and activities that they are not obligated to devote to the City in such a manner and to such Persons that the Contractor or Subcontractors wish except as expressly provided in these Contract Documents. The Contractor and Subcontractors shall have no power to incur any debt, obligation, or liability on behalf of the City, bind the City in any manner, or otherwise act on behalf of the City as agents. The Contractor and Subcontractors shall not, at any time or in any manner, represent that they or any of their agents, servants or employees, are in any manner agents, servants or employees of the City. The Contractor and Subcontractors agree to pay all required taxes on amounts paid to them under the Contract, and to indemnify and hold the City harmless from any and all taxes, assessments, penalties, and interest asserted against the City by reason of the independent contractor relationship created by the Contract Documents.

The Contractor shall include this provision in all contracts with all Subcontractors. 9-18 CONSTRUCTION
In the event of any asserted ambiguity in, or dispute regarding the interpretation of any matter herein, the interpretation of these Contract Documents shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the party who drafted the Contract Documents or who drafted that portion of the Contract Documents. 9-19 NON-WAIVER OF TERMS, RIGHTS AND REMEDIES
Waiver by either party of any one (1) or more of the conditions of performance under these Contract Documents shall not be a waiver of any other condition of performance under these Contract Documents.

In no event shall the making by the City of any payment to the Contractor constitute or be construed as a waiver by the City of any breach of covenant, or any default that may then exist on the part of the Contractor, and the making of any such payment by the City shall in no way impair or prejudice any right or remedy available to the City with regard to such breach or default. 9-20 TERM
The Contract is effective as of the Effective Date listed, and shall remain in full force and effect until the Contractor has fully rendered the services required by the Contract Documents or the Contract has been otherwise terminated by the City. However, some provisions may survive the term listed within this Section, as stated in those provisions.
9-21 NOTICE
Except as otherwise required by law, any notice or other communication authorized or required by these Contract Documents shall be in writing and shall be deemed received on (a) the day of delivery if delivered by hand or overnight courier service during the City’s regular business hours or (b) on the third (3rd) business day following deposit in the United States mail, postage prepaid, to the addresses listed on the Contractor’s Bid and City Hall, or at such other address as one party may notify the other.

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9-22 SEVERABILITY
If any term or portion of these Contract Documents is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of these Contract Documents shall continue in full force and effect.

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SPECIAL PROVISIONS
The Sections that follow supplement, but do not replace, the corresponding provisions in Part 3 (Construction Methods) and 4 (Existing Improvements) of the Standard Specifications, except as otherwise indicated herein. In the event of any conflict between the Standard Specifications and these Special Provisions, these Special Provisions shall control.

SECTION 306 - OPEN TRENCH CONDUIT CONSTRUCTION
306-3.1 GENERAL
Pursuant to Public Contract Code Section 7104, if the project involves trenching more than four (4) feet deep, the Contractor shall promptly and before the following conditions are disturbed notify the City in writing of any:
a. Material that the Contractor believes may be material that is hazardous waste, as defined in California Health and Safety Code Section 25117, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law; and/or b. Subsurface or latent physical conditions at the site differing from those indicated; and/or c. Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract.

The City shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in the Contractor’s cost of, or the time required for, performance of any part of the Work shall issue a change order under the procedures described in the Contract. In the event that a dispute arises between the City and the Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the Contractor’s cost of, or time required for, performance of any part of the Work, the Contractor shall not be excused from any scheduled completion date provided for by the Contract, but shall proceed with all work to be performed under the Contract. The Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the parties.

As required by Labor Code Section 6705 and in addition thereto, whenever work under the Contract that involves an estimated expenditure in excess of twenty-five thousand dollars ($25,000) for the excavation of any trench or trenches five (5) feet or more in depth, the Contractor shall submit for acceptance by the City in advance of excavation, a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches. If such plan varies from the shoring system standards established by the Construction Safety Orders of the Division of Industrial Safety, the plan shall be prepared by a registered civil or structural engineer employed by the Contractor, and all costs therefor shall be included in the price of the Contract. Nothing in this provision shall be deemed to allow the use of a shoring, sloping, or other protective system less effective than that required by the Construction Safety Orders. Nothing in this Docusign Envelope ID: CF7876E0-BA02-4768-8AC4-7D1E58ED6C78 1858 906
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provision shall be construed to impose tort liability on the City or on any City officer, agent, consultant, representative, or employee. All plans, processing and shoring costs are the Contractor’s responsibility and must be included in the Contractor’s bid.

SECTION 400 - PROTECTION AND RESTORATION
400-1 GENERAL
All costs to the Contractor for protecting, removing, restoring, relocating, repairing, replacing, or reestablishing existing improvements shall be included in the Bid.

SECTION 402 - UTILITIES
402-1 LOCATION
Except as shown in the Plans or specified in the Special Provisions, the location and existence of underground utilities or substructures has not been obtained. Subject to Government Code Section 4215, the methods used and costs involved to locate existing elements, points of connection and all construction methods are the Contractor’s sole responsibility. Accuracy of information furnished, as to existing conditions, is not guaranteed by the City. The Contractor, at its sole expense, must make all investigations necessary to determine locations of existing elements, which may include contacting Underground Service Alert and other private underground locating firm(s), utilizing specialized locating equipment, hand trenching, or both. For every Dig Alert Identification Number issued by Underground Service Alert during the course of the Project, the Contractor must submit to the City the following form. The Contractor shall be responsible for preserving the integrity of the existing underground utilities at the site.

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UNDERGROUND SERVICE ALERT IDENTIFICATION NUMBER FORM
No excavation will be permitted until this form is completed and returned to the City.

Government Code Section 4216 et seq. requires a Dig Alert Identification Number to be issued before a permit to excavate will be valid.

To obtain a Dig Alert Identification Number, call Underground Service Alert at 811 a minimum of three (3) Working Days before scheduled excavation. For best response, provide as much notice as possible up to ten (10) Working Days.

Dig Alert Identification Number: ________________________________________________ Dated:
(“CONTRACTOR”)
By:

Printed Name:

Title:

By:

Printed Name:

Title:

Note: This form is required for every Dig Alert Identification Number issued by Underground Service during the course of the Work. Additional forms may be obtained from the City upon request.

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402-1.3 Entry by Utility Owners
The right is reserved to the owners of public Utilities or franchises to enter the Project site for the purpose of making repairs or changes in their property that may be necessary as a result of the Work as well as any other reason authorized by the City. When the Contract Documents provide for the Utility owners to alter, relocate or reconstruct a Utility, or when the Contract Documents are silent in this regard and it is determined by the City Engineer that the Utility owners must alter, relocate or reconstruct a Utility, the Contractor shall schedule and allow adequate time for those alterations, relocations or reconstructions by the respective Utility owners. City employees and agents shall likewise have the right to enter upon the Project site at any time and for any reason or no reason at all. 402-2 PROTECTION
If Contractor damages or breaks the Utilities, it will be the Contractor’s responsibility to repair the Utility at no cost to the Utility or the City.
402-3 REMOVAL
Facilities encountered during the prosecution of the Work that are determined to be abandoned shall be removed by the Contractor as required for the Work, unless directed otherwise by the City Engineer. The remaining portion of the existing Utility which is left in place shall be accurately recorded, in elevation and plan, on the control set of Contract Drawings.
402-4 RELOCATION
The Contractor shall cooperate fully with all Utility forces of the City or forces of other public or private agencies engaged in the relocation, altering, or otherwise rearranging of any facilities that interfere with the progress of the Work. The Contractor shall schedule the Work so as to minimize interference with the relocation, altering, or other rearranging of facilities. 402-6 COOPERATION
The Contractor’s attention is directed to the fact that Work may be conducted at or adjacent to the site by other contractors during the performance of the Work under this Contract. The Contractor shall conduct its operations so as to cause a minimum of interference with the work of such other contractors, and shall cooperate fully with such contractors to provide continued safe access to their respective portions of the site, as required to perform work under their respective contracts. Compensation for compliance shall be included in the various items of the Work, and no additional compensation shall be allowed therefor.

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402-7 NOTIFICATION
The Contractor shall notify the City Engineer and the owners of all Utilities and substructures not less than forty-eight (48) hours before starting construction. The following list of names and telephone numbers is intended for the convenience of the Contractor and is not guaranteed to be complete or accurate:

Agency: City of Banning
Phone Number: 951.922.3263
Contact Person: Brandon Robinson
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EXHIBIT “A”
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CITY OF BANNING

STAFF REPORT
TO: CITY COUNCIL
FROM: Douglas Schulze, City Manager
PREPARED BY: Nicole Jews, Human Resources Manager
Lincoln Bogard, Administrative Services Director
MEETING DATE: December 10, 2024
SUBJECT: Consideration of Resolution 2024-193, Amending the Classification & Compensation Plan for the City of Banning
RECOMMENDATION:

Adopt Resolution 2024-193.

BACKGROUND:

It is necessary to amend the City’s Classification & Compensation Plan from time to time to maintain a current plan that reflects budget amendments, organizational structure, and department needs.

Past City Council resolutions have identified the necessity to maintain a current Classification & Compensation Plan that reflects the nature of work and organizational structure, that the plan is updated to reflect both market changes and appropriate compensation for work performed.

JUSTIFICATION:

Proposed changes to the Classification and Compensation plan include:

Administrative Services-Finance
Retract a previous action to un-fund & reclassify the Budget and Financial Analyst (Job Code 2009) Range T79 to a Sr. Accountant (Job Code 2051) Range G68. Staff will be filling the Administrative Services-Finance Budget and Financial Analyst (Job Code 2009) Range T79, position. The Budget & Finance Analyst position is a single classification position that will report directly to and assist the Deputy Finance Director with general financial, assets, and special budget projects. This action will not change the general fund as the position was not filled.

FISCAL IMPACT:

Position / Range Proposed Salary Current Salary
Proposed Based Wage
Difference
Budget & Financial
Analyst
$112,125.00 $112,125.00 $0
Total Annual Fiscal
Impact:
$0
ALTERNATIVES:
912
Do not adopt Resolution 2024-193 and provide alternative direction to staff.

BUDGETED?:

Yes
CONTRACT/AGREEMENT:

No
ATTACHMENTS:

1. Resolution 2024-193, Class and Comp.docx

2. Budget Financial Analyst_.pdf
913
Resolution 2024-193

Page 1 of 4 ends

Banning City CouncilDecember 10, 2024

Banning City Council
December 10, 2024