RESOLUTION 2025-34
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA, APPROVING A SOLE SOURCE PROFESSIONAL SERVICES AGREEMENT (CONTRACT NO.
C01133) WITH WILLDAN ENGINEERING, INC FOR STAFF AUGMENTATION FOR
BUILDING, SAFETY, AND PLANNING STAFFING SERVICES IN AN AMOUNT NOT TO EXCEED $577,000
WHEREAS, the City of Banning, CA (“City”) Community Development Department (“Department”), which includes the Building & Safety, Fire Prevention and Planning Services Divisions, manages the land use entitlement and construction permitting process for development in the City, including new projects and improvements to existing developments; and WHEREAS, in 2019, the City Council adopted Resolution 2019-122, approving a Professional Services Agreement (PSA C00608) with Willdan Engineering, Inc. to augment Building and Safety services in the Department and has approved subsequent amendments to increase funding and extend the contract through March 31, 2025; and WHEREAS, in 2020, the City Council adopted Resolution 2020-106, approving a Professional Services Agreement with Romo Planning Group, Inc. to augment Planning Services in the Department, and has approved subsequent amendments to increase funding and extend the contract through August 25, 2025; however, in February 2025, Romo Planning Group notified the City that services would no longer be provided; and WHEREAS, in February 2025, at the Department’s request, Willdan Engineering, Inc. has (1) confirmed they can continue providing Building and Safety Services consistent with the existing agreements and (2) provided a proposal for augmenting the City’s Planning Services; and
WHEREAS, on March 11, 2025, the City Council considered the sole source agreement with Willdan Engineering, Inc. for these services at a public meeting.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
SECTION 1. The City Council approves the sole sourced professional services agreement with Willdan Engineering, Inc. for Staff Augmentation for Building, Safety, and Planning Services in an amount not to exceed $577,000 through December 31, 2025.
SECTION 2. The City Council authorizes the City Manager to make non-substantive changes and execute the sole sourced professional services agreement with Willdan Engineering, Inc. 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. 180
Resolution 2025-34
PASSED, APPROVED AND ADOPTED this 11th day of March, 2025.
Sheri Flynn, Mayor
City of Banning
ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:
John Pinkney, Interim City Attorney
Slovak, Baron, Empey, Murphy & Pinkney,
LLP
181
Resolution 2025-34
CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2025-34, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 11th day of March, 2025 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
182
Resolution 2025-34
EXHIBIT A
Willdan Sole Source Agreement
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AGREEMENT FOR PROFESSIONAL SERVICES (C01133) FOR STAFF
AUGMENTATION FOR BUILDING, SAFETY, AND PLANNING
SERVICES BY AND BETWEEN CITY OF BANNING AND WILLDAN
ENGINEERING
THIS AGREEMENT FOR PROFESSIONAL SERVICES (herein “Agreement”) is made and entered into this day: ___________________, (“Effective Date”) by and between the CITY OF BANNING, a California municipal corporation (“City”) and Willdan Engineering, a California Corporation, (“Consultant”). City and Consultant are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City has sought by a Request for a Proposal for the performance of the services for Staff Augmentation for Building, Safety, and Planning Services and as further defined and described particularly in Article 1 of this Agreement.
B. Consultant, following submission of a proposal for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by City to perform those services.
C. The Parties desire to formalize the selection of Consultant for performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
D. Pursuant to the City of Banning’s Municipal Code, City has authority to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the “Scope of Services” attached hereto as Exhibit A and incorporated herein by this reference, which services may be referred to herein as the “Services” hereunder. As a material inducement to City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the Services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services described herein. Consultant covenants that it shall follow the highest professional standards in performing the Services required hereunder and that all materials will be of good quality, and fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional 184
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standards” shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances.
1.2 Contract Documents and Exhibits.
This Agreement includes the Request for Proposal and Consultant’s accepted proposal (“Contract Documents”), both of which are on file with the City and incorporated herein by this general reference as though fully set forth herein. Exhibit A (Scope of Services), Exhibit B (Special Requirements), Exhibit C (Schedule of Compensation), and Exhibit D (Schedule of Performance) also constitute a part of this Agreement and are incorporated into this Agreement by this reference. Except as set forth in Section 1.10 regarding Exhibit B, this Agreement controls over the Contract Documents and the provisions in Exhibits A, B and C.
1.3 Compliance with Law.
Consultant shall keep itself informed concerning all ordinances, resolutions, statutes, rules, and regulations of City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered, and shall render all Services hereunder in accordance therewith.
1.4 Licenses, Permits, Fees and Assessments.
Consultant shall obtain and maintain during the term of this Agreement, at its sole cost and expense, all necessary licenses, permits, certificates and approvals required by law for the performance of Services under this Agreement, including a City business license. Consultant shall have the sole obligation to pay for all fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and which arise from or are necessary for Consultant’s performance of the Services required by this Agreement. Consultant shall indemnify, defend and hold harmless City, its officers, employees or agents, against all such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.
1.5 Familiarity with Services.
By executing this Agreement, Consultant warrants that Consultant: (i) has thoroughly investigated and considered the Scope of Services to be performed, (ii) has carefully considered how the Services should be performed, and (iii) fully understands the facilities and any difficulties and restrictions attending performance of the Services under this Agreement. If the Services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions existing therein, prior to commencement of Services hereunder. Should Consultant discover any latent or unknown conditions, which will materially affect the performance of the Services hereunder, Consultant shall immediately inform City of such fact and shall not proceed except at Consultant’s risk until written instructions are received from the Contract Officer (defined in Section 1.12. A).
1.6 Prevention of Loss and Damages.
Consultant shall adopt reasonable methods during the Term (defined in Section 3.4) to furnish continuous protection to the work product, and the equipment, materials, papers, 185
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documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Services by City, except such losses or damages as may be caused by City’s own negligence.
1.7 Further Responsibilities of Parties.
Both Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonable necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither Party shall be responsible to perform the Services of the other.
1.8 Additional Services.
City shall have the right at any time during the performance of the Services, without invalidating this Agreement, to order extra services beyond that specified in the Scope of Services or to make changes by altering, adding to or deducting from the Services. No such extra services may be undertaken unless a written order is first given by the Contract Officer to Consultant, which written order incorporates therein an adjustment in (i) the Contract Sum (as defined in Section
2.1), and/or (ii) the Schedule of Performance, (as defined in Section 3.2), and which written order is approved in writing by Consultant. Any increase in compensation of up to ten percent (10%) of the Contract Sum, or $25,000, whichever is less; or in the Schedule of Performance of up to one hundred eighty (180) days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by City Council. It is expressly understood by Consultant that the provisions of this Section shall not apply to Services which are specifically set forth in the Scope of Services or which are reasonably contemplated therein. Consultant hereby acknowledges that it accepts the risk that the Services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor.
1.9 Facilities and Equipment.
Except as otherwise provided, Consultant shall, at its own cost and expense, provide all facilities and equipment necessary to perform the Services required by this Agreement. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space (“City Facilities”), as City deems, in its sole discretion, to be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of City. The location, quality, and time of furnishing City Facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facilities that may involve incurring any direct expense, including but not limited to a computer, long distance telephone, network data, internet or other communication charges, vehicles and reproduction facilities.
1.10 Special Requirements.
Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibit B and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit B and any other provisions of this Agreement, the provisions of Exhibit B shall govern. 186
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1.11 Corrections.
In addition to the indemnification obligations set forth in Article 4, and Sections 1.4, 1.13,
5.3, 5.4, and 6.3, Consultant shall correct, at its expense, all errors in the Services which may be disclosed during City’s review of Consultant’s report or plans. Should Consultant fail to make such correction(s) in a reasonably timely manner, such correction(s) may be made by City, and the cost thereof shall be charged to Consultant. In addition to all other available remedies, City may deduct the cost of such correction(s) from any retention amount held by City, or may withhold payment otherwise owed Consultant under this Agreement up to the amount of the cost of correction(s), as provided in Section 6.3.
1.12 Party Representatives.
A. Contract Officer: For the purposes of this Agreement, the Contract Officer shall be the City Manager, or such other person designated in writing by the City Manager (“Contract Officer”). Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of City required hereunder to carry out the terms of this Agreement.
B. Principals and Personnel of Consultant.
1) Consultant Representative: The following principal of Consultant is hereby designated as being the Consultant Representative authorized to act on Consultant’s behalf regarding the Services specified herein and make all decisions in connection therewith:
Name Title
Patrick Johnson Director – Building and Safety
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Consultant Representative were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing Consultant Representative shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the Services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the Consultant Representative. For purposes of this Agreement, the foregoing Consultant Representative may not be replaced nor may their responsibilities be substantially reduced or reassigned by Consultant without the express written approval of City. It shall be Consultant’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the Services, and Consultant shall refer any decisions which must be made by City to the Contract Officer. 2) Consultant’s Personnel: Consultant has, or will secure at its own expense, all personnel required to perform the Services required under this Agreement. All of the Services required under this Agreement shall be performed by Consultant or under its supervision, and all personnel engaged in the Services shall be qualified to perform such Services. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and sub-contractors, if any, assigned to perform the Services required under this Agreement. 187
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Consultant shall notify City of all changes in Consultant’s staff and sub-contractors, if any, assigned to perform the Services required under this Agreement, prior to and during any such performance. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires to reassign any staff or sub-contractor of Consultant, City shall give notice as set forth in Section 8.1. Consultant shall, immediately upon the receipt of the notice to re-assign staff from City, reassign such person or persons.
1.13 Independent Contractor.
A. Consultant is an independent contractor and not an employee of City.
Consultant shall have no power to incur any debt, obligation, or liability on behalf of City. All Services provided pursuant to this Agreement shall be performed by Consultant or under its supervision. Consultant will determine the means, methods, and details of performing the Services. Any additional personnel performing Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
B. Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from Consultant’s personnel practices. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this Section.
1.14 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of Consultant, the Consultant Representative and employees were a substantial inducement for City to enter into this Agreement.
Therefore, Consultant shall not contract with any other entity to perform in whole or in part the Services required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty-five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this 188
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Agreement shall be void. No approved transfer shall release Consultant or any surety of Consultant of any liability hereunder without the express consent of City.
1.15 Debarment or 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 contractors. If Consultant or any subcontractor becomes debarred or suspended during the Term of this Agreement, Consultant shall immediately notify City.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, as full compensation for Services satisfactorily rendered, City shall pay Consultant at the hourly rates set forth in the “Schedule of Compensation” attached hereto as Exhibit C and incorporated herein by this reference. In no event shall Consultant be paid more than Five Hundred Seventy-Seven Thousand Dollars ($577,000.00) (the “Contract Sum”). The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by City. Coordination of the performance of the Services with City is a critical component of the Services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending those meetings.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion of the Services, (ii) payment in accordance with specified tasks or the percentage of completion of the Services, (iii) payment for time and materials based upon Consultant’s rates as specified in the Schedule of Compensation, provided that time estimates are provided for the performance of sub tasks, but not exceeding the Contract Sum or (iv) such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses.
City shall only reimburse Consultant for those actual and necessary expenses expressly set forth in Exhibit C. Reimbursable expenses may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual sub-contractor expenses of an approved sub-contractor pursuant to Section 1.14, and only if specified in the Schedule of Compensation.
2.4 Unauthorized Services and Expenses.
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City will not pay for any Services or reimburse for any expenses incurred which are not specified in the Scope of Services, unless authorized in writing as set forth in Section 1.8 of this Agreement. City shall make payment for such authorized additional Services and expenses in accordance with Article 2 of this Agreement.
2.5 Invoices.
Each month Consultant shall furnish to City an original invoice for all Services performed and expenses incurred during the preceding month. Each such invoice shall contain all of the information set forth in Section III of Exhibit C to this Agreement. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement. Consultant shall not invoice City for any duplicate Services performed by more than one person.
City shall independently review each invoice submitted by Consultant to determine whether the Services performed and expenses incurred are in compliance with the provisions of this Agreement. City will use its best efforts to cause Consultant to be paid within thirty (30) days of receipt of Consultant’s correct and undisputed invoice, except as to any charges for Services performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 6.3. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City of any invoice provided by Consultant shall not constitute waiver of any rights or remedies provided herein or any applicable law.
2.6 Waiver.
Payment to Consultant for Services performed pursuant to this Agreement shall not be deemed to waive any defects in Services performed by Consultant.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement; provided, however, that the foregoing shall not be construed to limit or deprive a Party of the benefits of any grace or use period allowed in this Agreement.
3.2 Schedule of Performance.
Consultant shall commence the Services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all Services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit D and incorporated herein by this reference.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the Services rendered pursuant to this Agreement may be extended because of any delays due to 190
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unforeseeable causes beyond the control and without the fault or negligence of Consultant. Such unforeseeable consequences include, but are not restricted to, acts of God or public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, if Consultant shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the Services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified, subject to the provisions of Section 1.8. The Contract Officer’s determination (or the City Council’s determination, in the event the period of enforced delay exceeds the period specified in Section
1.8) shall be final and conclusive upon the Parties to this Agreement. In no event shall Consultant be entitled to recover damages against City for any delay in the performance of this Agreement, however caused; Consultant’s sole remedy shall be the extension of the Agreement pursuant to this Section.
3.4 Term.
The Term of this Agreement shall be from the Effective Date through December 31, 2025, unless sooner terminated as provided in Article 6 of this Agreement or extended as provided in Sections 1.8 and 3.3 of this Agreement. Maximum term and any subsequent amendment or modification shall not exceed five (5) years.
ARTICLE 4. INSURANCE AND INDEMNIFICATION
4.1 Minimum Scope and Limits of Insurance.
Consultant shall procure and at all times during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows:
A. Commercial General Liability Insurance with a minimum limit of $1,000,000.00 per occurrence for bodily injury, personal injury and property damage and a general aggregate limit of $2,000,000.00 per project or location. If Consultant is a limited liability company, the commercial general liability coverage shall be amended so that Consultant and its managers, members, affiliates, employees, agents and other persons necessary or incidental to its operation are insureds.
B. Automobile Liability Insurance for any owned, non-owned or hired vehicle used in connection with the performance of this Agreement with a combined single limit of $1,000,000.00 per accident for bodily injury and property damage. If Consultant does not use any owned, non-owned or hired vehicles in the performance of Services under this Agreement, Consultant shall obtain a non-owned auto endorsement to the Commercial General Liability policy.
C. Workers’ Compensation Insurance as required by the State of California and Employer’s Liability Insurance with a minimum limit of $1,000,000.00 per accident for bodily injury or disease. If Consultant has no employees while performing Services under this Agreement, workers’ compensation policy is not required; however, Consultant shall execute a declaration that it has no employees.
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D. Professional Liability/Errors and Omissions Insurance with minimum limits of $1,000,000.00 per claim and in the aggregate.
4.2 Acceptability of Insurers.
The insurance policies required under this Article shall be issued by an insurer admitted to write insurance in the State of California with a rating of A:VII or better in the latest edition of the A.M. Best Insurance Rating Guide. Self-insurance shall not be considered to comply with the insurance requirements under this Article.
4.3 Additional Insured.
The commercial general and automobile liability policies shall contain an endorsement naming City, its officers, employees, agents and volunteers as additional insureds.
4.4 Primary and Non-Contributing.
The insurance policies required under this Article shall apply on a primary noncontributing basis in relation to any other insurance or self-insurance available to City. Any insurance or self-insurance maintained by City, its officers, employees, agents or volunteers, shall be in excess of Consultant’s insurance and shall not contribute with it.
4.5 Consultant’s Waiver of Subrogation.
The insurance policies required under this Article shall not prohibit Consultant and Consultant’s employees, agents or sub-contractors from waiving the right of subrogation prior to a loss. Consultant hereby waives all rights of subrogation against City.
4.6 Deductibles and Self-Insured Retentions.
Any deductibles or self-insured retentions must be declared to and approved by City. At City’s option, Consultant shall either reduce or eliminate the deductibles or self-insured retentions with respect to City; or Consultant shall procure a bond guaranteeing payment of losses and expenses.
4.7 Cancellations or Modifications to Coverage.
Consultant shall not cancel, reduce or otherwise modify the insurance policies required by this Article during the term of this Agreement. The commercial general and automobile liability policies required under this Agreement shall be endorsed to state that should the issuing insurer cancel the policy before the expiration date, the issuing insurer will endeavor to mail 30 days’ prior written notice to City. If any insurance policy required under this Article is canceled or reduced in coverage or limits, Consultant shall, within two (2) Business Days (as defined in Section 8.12) of notice from the insurer, phone, fax or notify City via certified mail, return receipt requested, of the cancellation of or changes to the policy.
4.8 City Remedy for Noncompliance.
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If Consultant does not maintain the policies of insurance required under this Article in full force and effect during the term of this Agreement, or in the event any of Consultant’s policies do not comply with the requirements under this Article, City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may, but has no duty to, take out the necessary insurance and pay, at Consultant’s expense, the premium thereon.
Consultant shall promptly reimburse City for any premium paid by City, or City may withhold amounts sufficient to pay the premiums from payments due to Consultant.
4.9 Evidence of Insurance.
Prior to the performance of Services under this Agreement, Consultant shall furnish the City Clerk with a certificate or certificates of insurance and all original endorsements evidencing and effecting the coverages required under this Article. The endorsements are subject to City’s approval. Consultant may provide complete, certified copies of all required insurance policies to City. Consultant shall maintain current endorsements on file with the City Clerk.
Consultant shall provide proof to the City Clerk that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Consultant shall furnish such proof at least two (2) weeks prior to the expiration of the coverages.
4.10 Indemnity Requirements not Limiting.
Procurement of insurance by Consultant shall not be construed as a limitation of Consultant’s liability or as full performance of Consultant’s duty to indemnify City under this Agreement.
4.11 Sub-contractor Insurance Requirements.
Consultant shall require each of its sub-contractors that perform Services under this Agreement to maintain insurance coverage that meets all of the requirements of this Article.
4.12 Indemnification, Hold Harmless, and Duty to Defend.
A. Indemnification of City.
1) To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively “Indemnitees”), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively “Liabilities”), at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant, its officers, agents, servants, employees, sub-contractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising 193
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from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties. Consultant shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of the Indemnitees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith.
2) Consultant shall pay all required taxes on amounts paid to Consultant under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant shall fully comply with the workers’ compensation law regarding Consultant and Consultant’s employees. Consultant shall indemnify and hold City harmless from any failure of Consultant to comply with applicable workers’ compensation laws. City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this subparagraph A.2. 3) Consultant shall obtain executed indemnity agreements with provisions identical to those in this Article from each and every sub-contractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement.
If Consultant fails to obtain such indemnity obligations, Consultant shall be fully responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Liabilities at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant’s sub-contractor, its officers, agents, servants, employees, sub-contractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant’s sub-contractor shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties.
B. Workers’ Compensation Acts not Limiting. Consultant’s indemnifications and obligations under this Article, or any other provision of this Agreement, shall not be limited by the provisions of any workers’ compensation act or similar act. Consultant expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents, employees and volunteers.
C. Insurance Requirements not Limiting. City does not, and shall not, waive any rights that it may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The indemnities in this Article shall apply regardless of whether or not any insurance policies are determined to be applicable to the Liabilities, tax, assessment, penalty or interest asserted against City.
D. Survival of Terms. Consultant’s indemnifications and obligations under this Article shall survive the expiration or termination of this Agreement. 194
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ARTICLE 5. RECORDS, REPORTS, AND RELEASE OF INFORMATION
5.1 Service Records.
Consultant shall keep, and require sub-contractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and Services performed hereunder (the “Service Records”), as shall be necessary to perform the Services required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. Any and all such Service Records shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such Service Records at all times during normal business hours of City, including the right to inspect, copy, audit and make copies and transcripts from such Service Records. Such Service Records shall be maintained for a period of three (3) years following completion of the Services hereunder, and City shall have access to such Service Records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the Service Records may be given to City, and access shall be provided by Consultant’s successor in interest (“Consultant’s Successor”). If custody of the Service Records is given to Consultant’s Successor, Consultant shall give written notice to City of the transfer of the Service Records to Consultant’s Successor. The notice shall include contact information (address and telephone number) for Consultant’s Successor, and access shall be provided to City by Consultant’s Successor.
5.2 Reports.
Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that City is greatly concerned about the cost of Services to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services contemplated herein, Consultant shall promptly notify the Contract Officer of that fact, circumstance, technique or event and the estimated increased or decreased cost related thereto.
5.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the “Consultant Documents”) prepared by Consultant, its employees, sub-contractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement. Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the Consultant Documents hereunder. Any use, reuse or assignment of such completed Consultant Documents for other projects and/or use of uncompleted Consultant Documents without specific written authorization by Consultant will be at City’s sole risk and without liability to Consultant, and Consultant’s guarantee and warranties shall not extend to such use or assignment. Consultant may retain copies of such Consultant Documents for its own use. Consultant shall have an unrestricted right to use the concepts embodied therein. All 195
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sub-contractors shall provide for assignment to City of all Consultant Documents prepared by them; and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom.
5.4 Confidentiality and Release of Information.
A. All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer.
B. Consultant, its officers, employees, agents or sub-contractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the Services performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Consultant gives City notice of such court order or subpoena.
C. If Consultant, or any officer, employee, agent or sub-contractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorneys’ fees, caused by or incurred as a result of Consultant’s conduct.
D. Consultant shall promptly notify City should Consultant, its officers, employees, agents or sub-contractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any Party regarding this Agreement and the Services performed thereunder. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite the response.
ARTICLE 6. ENFORCEMENT OF AGREEMENT AND TERMINATION
6.1 California Law.
This Agreement, and any dispute arising from the relationship between the Parties to this Agreement, shall be interpreted, construed and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside. 196
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6.2 Disputes; Default.
A. In the event that City determines Consultant is in default under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any Services performed after the date of default. In addition to the provisions of Section 4.8, and the right to terminate pursuant to Section 6.7, if the City Manager determines that Consultant is in default in the performance of any of the terms or conditions of this Agreement, City may serve Consultant with written notice of the default. Consultant shall have ten (10) calendar days after service upon it of the notice in which to cure the default by rendering a satisfactory performance.
In the event that Consultant fails to cure its default within such period of time, City may, notwithstanding any other provision of this Agreement, terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.
B. In the event of termination pursuant to this Section, City may take over the Services and prosecute the same to completion by contract or otherwise, and Consultant shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to Consultant for the purpose of set-off or partial payment of the amounts owed City as provided in Section 6.3.
6.3 Retention of Funds.
Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement): (i) any payment amount of which may be in dispute hereunder or which is necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, (ii) all amounts retained pursuant to the provisions of Section 4.8, (iii) all amounts for which City may be liable to third parties, by reason of Consultant’s acts or omissions in performing or failing to perform Consultant’s obligation under this Agreement, and (iv) all payments due or that become due to Consultant during the period that Consultant or any of its sub-contractors fail to maintain any required insurance in full force and effect, until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City, as provided in Section 4.9, above. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Consultant to insure, indemnify, and protect City as elsewhere provided herein.
6.4 Waiver.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any Services by Consultant shall not constitute a waiver of any of the 197
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provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver.
Any waiver by either Party of any default must be in writing, and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
6.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
6.6 Legal Action.
In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Consultant must file a statutory claim pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action against City under this Agreement.
6.7 Termination Prior to Expiration of Term.
This Article 6 shall govern any termination of this Agreement except as specifically provided in Section 6.2 for termination for default of Consultant. City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days’ written notice to Consultant, except that where termination is due to the fault of Consultant, the period of notice may be a shorter time as may be determined by the Contract Officer. In addition, Consultant reserves the right to terminate this Agreement at any time, with or without cause, upon sixty (60) days’ written notice to City, except that where termination is due to the fault of City, the period of notice may be a shorter time as Consultant may determine. Upon receipt of any notice of termination, Consultant shall immediately cease all Services hereunder except such as may be specifically approved by the Contract Officer. Except where Consultant has initiated termination, Consultant shall be entitled to compensation for all Services rendered prior to the effective date of the notice of termination and for any Services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 6.3. In the event Consultant has initiated termination, Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating Party need not provide the non-terminating Party with the opportunity to cure pursuant to Section 6.2.
6.8 Attorneys’ Fees.
In any litigation or other proceeding by which a Party seeks to enforce its rights under this Agreement (whether in contract, tort or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing Party in such action or proceeding, in addition to any other 198
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relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees. Attorneys’ fees shall include attorney’s fees on any appeal, and in addition the Party entitled to attorneys’ fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 7. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
7.1 Non-liability of City Officers and Employees.
No officer or employee of City shall be personally liable to Consultant, or Consultant’s Successor, in the event of any default or breach by City or for any amount which may become due to Consultant or Consultant’s Successor, or for breach of any obligation of the terms of this Agreement.
7.2 Conflict of Interest.
Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of Services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or sub-contractor without the express written consent of the Contract Officer. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
No officer or employee of City shall have any direct or indirect financial interest in this Agreement within the scope of Government Code section 1090, nor shall any such officer or employee make, participate in making, or use his or her official position to influence, any City decision relating to the Agreement which has a material financial effect on his or her financial interests or the financial interests of any corporation, partnership or association in which he or she is, directly or indirectly, interested, in violation of any State statute or regulation. Consultant warrants that it has not paid or given, and will not pay or give any third party any money or other consideration for obtaining this Agreement.
Consultant and its officers, employees, associates and sub-contractors, if any, shall comply with all conflict of interest statutes of the State of California applicable to Consultant’s Services under this Agreement, including the Political Reform Act (Gov. Code § 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Consultant may perform similar services for other clients; but Consultant and its officers, employees, associates and subcontractors shall not, without the Contract Officer’s prior written approval, perform services for another person or entity for whom Consultant is not currently performing services that would require Consultant or one of its officers, employees, associates or sub-contractors to abstain from a decision under this Agreement pursuant to a conflict of interest statute. Consultant shall incorporate a clause substantially similar to this Section into any subcontract that Consultant executes in connection with the performance of this Agreement. 199
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7.3 Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, or ancestry in the performance of this Agreement.
Consultant shall take affirmative action to insure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry, or other protected class.
7.4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of Services covered by this Agreement, and should the any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by City.
ARTICLE 8. MISCELLANEOUS PROVISIONS
8.1 Notices.
Any notice, demand, request, document, consent, approval, bill, invoice, report or other communication required or permitted under this Agreement shall be in writing and conclusively deemed effective: (a) on confirmed delivery by courier service or overnight delivery service during Consultant’s and City’s regular business hours; or (b) three (3) Business Days after deposit in the United States mail, by certified or registered mail, and addressed to the Party to be notified as set forth below:
If to City Attn: David A. Newell
City’s Contract Officer
City of Banning
99 East Ramsey Street
Banning, California 92220
Email: [email protected]
With a courtesy copy to: John Pinkney, City Attorney
Slovak, Baron, Empey, Murphy, & Pinkney LLP
74774 Highway 111
Indian Wells, California 92210
Email: [email protected]
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If to Consultant: Attn: Patrick Johnson
Director – Building and Safety
Willdan Engineering
2401 E. Katella Ave., Ste 300
Anaheim, CA, 92806
Email: [email protected]
8.2 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
8.3 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
8.4 Integration; Amendment.
This Agreement, and all exhibits referred to in this Agreement, constitute the final, complete and exclusive statement of the terms of the agreement between the Parties pertaining to the subject matter of this Agreement and supersede all other and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the Parties, and none shall be used to interpret this Agreement. No Party has been induced to enter into this Agreement by, nor is any Party relying on, any representation or warranty except those expressly set forth in this Agreement. No amendment to or modification of this Agreement, nor any provision or breach hereof waived, shall be valid unless made in writing and approved by Consultant and by City Council. The Parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
8.5 Severability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
8.6 Mutual Cooperation.
A. City’s Cooperation. City shall provide Consultant with all pertinent data, documents and other requested information as is reasonably available for Consultant’s proper performance of the Services required under this Agreement. 201
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B. Consultant’s Cooperation. In the event any claim or action is brought against City relating to Consultant’s performance of Services rendered under this Agreement, Consultant shall render any reasonable assistance that City requires.
8.7 No Third Party Beneficiaries Intended.
This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.
8.8 Final Payment Acceptance Constitutes Release.
The acceptance by Consultant of the final payment made under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Consultant for anything done, furnished or relating to Consultant’s Services. Acceptance of payment shall be any negotiation of City’s check or the failure to make a written extra compensation claim within ten (10) calendar days of the receipt of that check. However, approval or payment by City shall not constitute, nor be deemed, a release of the responsibility and liability of Consultant, its employees, sub-contractors and agents for the accuracy and competency of the information provided and/or Services performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the Services prepared by Consultant, its employees, sub-contractors and agents.
8.9 Non-Appropriation of Funds.
Payments to be made to Consultant by City for Services performed within the current fiscal year which are within the current fiscal budget and within an available, unexhausted fund. In the event that City does not appropriate sufficient funds for payment of Consultant’s Services beyond the current fiscal year, this Agreement shall cover payment for Consultant’s Services only to the conclusion of the last fiscal year in which City appropriates sufficient funds and shall automatically terminate at the conclusion of such fiscal year.
8.10 Headings.
The headings in this Agreement are included solely for convenience of reference and shall not affect the interpretation of any provision of this Agreement or any of the rights or obligations of the Parties to this Agreement.
8.11 Word Usage.
Unless the context clearly requires otherwise, (a) the words “shall,” “will” and “agrees” are mandatory and “may” is permissive; (b) “or” is not exclusive; and (c) “includes” or “including” are not limiting.
8.12 Business Days.
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“Business Days” refers to days that the Banning City Hall is open for business.
8.13 Corporate Authority.
The persons executing this Agreement on behalf of the Parties hereto warrant that (i): such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of that Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which that Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
8.14 Electronic Signatures.
Each Party may adopt as its signature an electronic identification consisting of a symbol or code that is affixed to or contained in each document transmitted by such Party (“electronic signature”). The Parties hereto herby agree that electronic signatures are acceptable, shall have the same force and effect under the law as original wet signatures, and shall be sufficient to verify that the Parties have executed this Agreement and such other documents transmitted by the Parties.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first hereinabove written.
CITY OF BANNING CONSULTANT
Robert Fisher, Date
City Manager
NAME: Date
TITLE:
NAME: Date
TITLE:
ATTEST:
Tax ID No.
Caroline Patton Date
Administrative City Clerk
Address:
APPROVED AS TO FORM:
Slovak, Baron, Empey, Murphy, & Pinkney
LLP
City Council Approval: _____________
John Pinkey Date
City Attorney
NOTE: PROOF OF AUTHORITY TO BIND CONTRACTING PARTY REQUIRED. APPROPRIATE
ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY.
204
Exhibit “A”-1
EXHIBIT “A”
SCOPE OF SERVICES
I. Consultant will perform the following Services in connection with providing Staff Augmentation for Building, Safety, and Planning Services prepared in connection therewith:
II. As part of the Services, Consultant will prepare and deliver the following tangible work products and services to City:
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February 25, 2025
David A. Newell, AICP
Community Development Director
City of Banning
99 E. Ramsey Street
Banning, CA 92220
Subject: Planning Staff Augmentation Services
Dear David:
Pursuant to your recent inquiry, I wish to confirm that Willdan can and would be most pleased to provide oncall planning staff augmentation services to assist with general planning services for the city’s Planning Division.
As a company founded on the principles of serving public agencies, Willdan understands the cities’ and counties’ requirements for professional planning services and outstanding customer service. Providing on-call technical support to cities and counties is a key component of Willdan’s services and has been a cornerstone service for the firm since our inception. Willdan offers a team filled with dedicated and respected professionals along with a support team of experienced land use planners, environmental planners, historic planners, engineers, construction managers, landscape architects, and CDBG/HOME specialists. All our staff members have served in public agencies prior to joining Willdan and understand municipal government.
Our team’s past assignments include staffing city/county planning departments, preparing and processing entitlement applications – conditional use permits, zone variances, tentative maps, design reviews, plan checks and general plan and zoning code amendments. Cities have used our planners to accomplish advanced planning tasks for community planning, specific plans, area plans and policy documents, ordinances, public engagement activities, public meetings, and interagency collaboration.
The Willdan Advantage
▪ Know-How to Move Projects Forward. Willdan planners incorporate our clients’ plans, direction, and goals with technical know-how – and will bring that expertise to the City of Banning. Many of our Willdan Planners provide design review and plan checking services for many of our client cities. No matter where Willdan planners work, they easily adapt to the community’s challenges and priorities. ▪ Large Company with Boutique-Company Approach. We have the resources of a large company and are staffed by individuals who respect our clients’ unique needs. Every Willdan employee seeks to understand each Cities’ goals, policies, and practices, not only from what is written in their General Plans and Development Codes, but also how those goals and policies have been applied over time. When our planners need technical support, Willdan has additional in-house discipline resources to cover almost every aspect of a planning project from engineering to municipal financing to energy conservation.
However, when the need arises, we have existing relationships with a myriad of specialty subconsultants we can call upon to fill that need.
▪ Staff Quality and Longevity. Willdan recognizes that our employees are our most important resource.
We provide them with professional development, flexibility, challenge, active listening, and recognition of the strengths they bring to our team. Our employees are committed to finishing clients’ projects, especially the long-term ones and those that have been tabled and come back to life.
EXHIBIT "A" Exhibit A - 2
206
Mr. Ted Lopez will serve as Senior Planner for your on-call planning needs. He would work directly under your supervision and would be primarily responsible for assisting in the day-to-day management and operations of the Planning Division, as well as other additional related planning assignments and duties, including, but not limited to managing advanced/complex development projects, design review, entitlement processing, plan check, and processing ADU applications. Mr. Lopez is available up to 24 hours a week with a 3-day work schedule. Mr. Lopez’s services would be billed at $160.00/hr. which is a fully burdened or “all-inclusive” billing rate. He is immediately available to assist.
Mr. Salvador Lopez Jr. will serve as the main point of contact throughout the on-call current planning contract.
He can be reached by mail at Willdan Engineering, 13191 Crossroads Parkway North, Suite 405, City of Industry, CA 91746; by office phone at (562) 364-7600; by cell phone at (626) 831-1133; or by email at [email protected].
Our proposal demonstrates the advantages Willdan’s team brings to this on-call contract and how your firm can benefit from having Willdan as an integral part of your team. Willdan is the right firm with the right resources and the right experience to provide on-call planning consulting services to the City of Banning. We look forward to the opportunity.
Respectfully submitted,
Willdan Engineering
Salvador Lopez Jr.
Director of Planning
EXHIBIT "A" Exhibit A - 3
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Exhibit “A”-4
III. In addition to the requirements of Parts I and II of this Scope of Services, during the performance of the Services, Consultant will keep City appraised through periodic status reports regarding the performance of the Services under this Agreement as set forth below and in Section 5.2, by the following means:
a. In-person meetings and/or teleconferences.
b. Email updates/questions to applicant team and City while reviews are underway.
c. Conference calls.
IV. All work product is subject to review and acceptance by City. If the City determines that any work product is unacceptable, for any reason, it must be revised by Consultant without additional charge to City until found satisfactory and accepted by City. 208
Exhibit “B”-1
EXHIBIT “B”
SPECIAL REQUIREMENTS
TERMS FOR COMPLIANCE WITH CALIFORNIA LABOR LAW REQUIREMENTS
1. This Agreement calls for services that, in whole or in part, constitute “public works” as defined in Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code (“Chapter 1”). Further, Consultant acknowledges that this Agreement is subject to (a) Chapter 1 and (b) the rules and regulations established by the Department of Industrial Relations (“DIR”) implementing such statutes. Therefore, as to those Services that are “public works,” Consultant shall comply with and be bound by all the terms, rules and regulations described in 1(a) and 1(b) as though set forth in full herein.
2. California law requires the inclusion of specific Labor Code provisions in certain contracts. The inclusion of such specific provisions below, whether or not required by California law, does not alter the meaning or scope of Section 1 above.
3. Consultant shall be registered with the Department of Industrial Relations in accordance with California Labor Code Section 1725.5, and has provided proof of registration to City prior to the Effective Date of this Agreement. Consultant shall not perform work with any subcontractor that is not registered with DIR pursuant to Section 1725.5. Consultant and subcontractors shall maintain their registration with the DIR in effect throughout the duration of this Agreement. If the Consultant or any subcontractor ceases to be registered with DIR at any time during the duration of the project, Consultant shall immediately notify City.
4. Pursuant to Labor Code Section 1771.4, Consultant’s Services are subject to compliance monitoring and enforcement by DIR. Consultant shall post job site notices, as prescribed by DIR regulations.
5. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages for each craft, classification, or type of worker needed to perform the Agreement are on file at City Hall and will be made available to any interested party on request. Consultant acknowledges receipt of a copy of the DIR determination of such prevailing rate of per diem wages, and Consultant shall post such rates at each job site covered by this Agreement.
6. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The Consultant shall, as a penalty to City, forfeit $200.00 for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Consultant or by any subcontractor.
7. Consultant shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Consultant and each subcontractor to: keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776; certify and make such payroll records available for inspection as provided by Section 1776; and inform City of the location of the records.
209
Exhibit “B”-2
8. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6 and 1777.7 and California Administrative Code Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects. Consultant shall be responsible for compliance with these aforementioned Sections for all apprenticeable occupations.
Prior to commencing work under this Agreement, Consultant shall provide City with a copy of the information submitted to any applicable apprenticeship program. Within 60 days after concluding work pursuant to this Agreement, Consultant and each of its subcontractors shall submit to City a verified statement of the journeyman and apprentice hours performed under this Agreement.
9. The Consultant shall not perform Work with any Subcontractor that has been debarred or suspended pursuant to California Labor Code Section 1777.1 or any other federal or state law providing for the debarment of contractors from public works. The Consultant and Subcontractors shall not be debarred or suspended throughout the duration of this Agreement pursuant to Labor Code Section 1777.1 or any other federal or state law providing for the debarment of contractors from public works. If the Consultant or any subcontractor becomes debarred or suspended during the duration of the project, the Consultant shall immediately notify City.
10. Consultant acknowledges that eight hours labor constitutes a legal day’s work.
Consultant shall comply with and be bound by Labor Code Section 1810. Consultant shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The Consultant shall, as a penalty to City, forfeit $25.00 for each worker employed in the performance of this Agreement by the Consultant or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code section 1815, work performed by employees of Consultant in excess of eight hours per day, and 40 hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of eight hours per day at not less than one and one-half times the basic rate of pay.
11. California Labor Code Sections 1860 and 3700 provide that every employer will be required to secure the payment of compensation to its employees. In accordance with the provisions of California Labor Code Section 1861, Consultant hereby certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”
Date______________ Signature___________________________ 210
Exhibit “B”-3
12. For every subcontractor who will perform work on the project, Consultant shall be responsible for such subcontractor’s compliance with Chapter 1 and Labor Code Sections 1860 and 3700, and Consultant shall include in the written contract between it and each subcontractor a copy of those statutory provisions and a requirement that each subcontractor shall comply with those statutory provisions. Consultant shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor’s compliance, including, without limitation, conducting a periodic review of the certified payroll records of the subcontractor and upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages. Consultant shall diligently take corrective action to halt or rectify any failure.
211
Exhibit “C”-1
11303-0008\2344655v8.doc
EXHIBIT “C”
SCHEDULE OF COMPENSATION
I. Consultant shall perform the scope tasks (“Tasks”) at the following rates as attached as Exhibit C-1:
II. Within the budgeted amounts for each Task, and with the approval of the Contract Officer, funds may be shifted from one Task sub-budget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.8.
III. City will compensate Consultant for the Services performed upon submission of a valid invoice. Each invoice is to include:
A. Line items for all personnel describing the Services performed, the number of hours worked, and the hourly rate.
B. Line items for all materials and equipment properly charged to the Services.
C. Line items for all other approved reimbursable expenses claimed, with supporting documentation.
D. Line items for all approved sub-contractor labor, supplies, equipment, materials, and travel properly charged to the Services. 212
Exhibit “C-1”-1
EXHIBIT “C-1”
CONSULTANT’S BILLING RATE AND TASK SCHEDULE
213
Exhibit “D”- 1
EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Consultant shall perform all Services timely, and deliver the specified tangible work products to City in accordance with the direction of the City’s Community Development Director.
II. The Contract Officer may approve extensions for performance of the Services in accordance with Sections 1.8 and 3.3
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PROFESSIONAL SERVICES AGREEMENT (C00608)
FOR BUILDING AND SAFETY PLAN CHECK & LANDSCAPE
DESIGN REVIEW SERVICES
By and Between
THE CITY OF BANNING
and
WILLDAN ENGINEERING,
a California corporation
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AGREEMENT FOR PROFESSIONAL SERVICES (C00608) FOR BUILDING AND
SAFETY PLAN CHECK & LANDSCAPE DESIGN REVIEW SERVICES BY AND
BETWEEN CITY OF BANNING AND WILLDAN ENGINEERING
THIS AGREEMENT FOR PROFESSIONAL SERVICES (herein “Agreement”) is made and entered into this day of: ____________________ by and between the CITY OF BANNING, a municipal corporation (“City”) and WILLDAN ENGINEERING, a California corporation (“Consultant”). City and Consultant are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”.
RECITALS
A. City has sought, by issuance of a Request for Proposals or Invitation for Bids (RFP No. 19-045), the performance of the building and safety plan check & landscape design review services prepared in connection therewith, and as further defined and described particularly in Article 1 of this Agreement.
B. Consultant, following submission of a proposal or bid for the performance of the services defined and described particularly in Article 1 of this Agreement, was selected by the City to perform those services.
C. Pursuant to the City of Banning’s Municipal Code, City has authority to enter into this Agreement.
D. The Parties desire to formalize the selection of Consultant for performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement, the Consultant shall provide those services specified in the “Scope of Services” attached hereto as Exhibit “A” and incorporated herein by this reference, which services may be referred to herein as the “services” or “work” hereunder and which relate to building and safety plan check & landscape design review. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the work and services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. Consultant covenants that it shall follow the highest professional standards in DocuSign Envelope ID: BF19E5FB-E9C8-4817-84E1-68BA67ABD6B0 9/25/2019
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performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances.
1.2 Consultant’s Proposal.
This Agreement shall, in addition to the Scope of Services provided in Exhibit “A”, include the Request for Proposal or Invitation for Bids (“Contract Documents”), which are incorporated herein by this reference as though fully set forth herein. This Agreement shall also include the Consultant’s accepted bid proposal (“Accepted Bid”), which is attached hereto as Exhibit “A-1” and incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the Contract Documents, Accepted Bid, and/or this Agreement, the terms of the Contract Documents shall govern over the Accepted Bid, and the terms of this Agreement shall govern over both the Contract Documents and the Accepted Bid.
1.3 Compliance with Law.
Consultant shall keep itself informed concerning, and shall render all services hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered.
1.4 Licenses, Permits, Fees and Assessments.
Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Consultant shall have the sole obligation to pay for all fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant’s performance of the services required by this Agreement, and Consultant shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against all such fees, assessments, taxes penalties or interest levied, assessed or imposed against City hereunder.
1.5 Familiarity with Work.
By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly investigated and considered the Scope of Services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Consultant discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Consultant shall immediately inform the City of such fact and shall not proceed except at City’s risk until written instructions are received from the Contract Officer.
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1.6 Care of Work.
The Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City’s own negligence.
1.7 Further Responsibilities of Parties.
Both Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonable necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither Party shall be responsible to perform the services of the other.
1.8 Additional Services.
City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or to make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer (as defined in Section 4.3, infra) to the Consultant, which written order incorporates therein an adjustment in (i) the Contract Sum (as defined in Section 2.1, infra), and/or (ii) the Schedule of Performance, (as defined in Section 3.2, infra), and which written order is approved in writing by the Consultant. Any increase in compensation of up to five percent (5%) of the Contract Sum or $25,000, whichever is less; or in the Schedule of Performance of up to one hundred eighty (180) days may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively must be approved by the City Council. It is expressly understood by Consultant that the provisions of this Section
1.8 shall not apply to services which are specifically set forth in the Scope of Services or which are reasonably contemplated therein. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor.
1.9 Facilities and Equipment.
Except as otherwise provided, Consultant shall, at its own cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. City shall make available to Consultant only physical facilities such as desk, filing cabinets, and conference space (“City Facilities”), as City deems, in its sole discretion, to be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of City. The location, quality, and time of furnishing City Facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facilities that may involve incurring any direct expense, including but not limited to computer, long distance telephone, network data, internet or other communication charges, vehicles and reproduction facilities.
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1.10 Special Requirements.
Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the “Special Requirements” attached hereto as Exhibit “B” and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit “B” and any other provisions of this Agreement, the provisions of Exhibit “B” shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in Exhibit “C”. The total compensation, including reimbursement for actual expenses, shall not exceed ONE MILLION, FOUR HUNDRED AND SEVENTY THOUSAND, NINE HUNDRED AND SIXTY DOLLARS ($1,470,960.00) (the “Contract Sum”), unless additional compensation is approved pursuant to Section 1.8.
Within the budgeted amounts for each Task, and with the approval of the Contract Officer, funds may be shifted from one Task sub-budget to another so long as the Contract Sum is not exceeded, unless Additional Services are approved per Section 1.8.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion, (ii) payment in accordance with specified tasks or the percentage of completion of the services, (iii) payment for time and materials based upon the Consultant’s rates as specified in Exhibit “C”, provided that time estimates are provided for the performance of sub tasks, but not exceeding the Contract Sum or (iv) such other methods as may be specified in Exhibit “C”.
2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual sub-consultant expenses if an approved sub-consultant pursuant to Section 4.5, and only if specified in Exhibit “C”. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City. Coordination of the performance of the work with City is a critical component of the services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month. Each such invoice shall contain all of the information set forth in Exhibit “C”. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement. Consultant shall not invoice City for any duplicate services performed by more than one person.
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City may independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. City will use its best efforts to cause Consultant to be paid within thirty (30) days of receipt of Consultant’s correct and undisputed invoice. Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 7.3. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by the City of any invoice provided by the Consultant shall not constitute waiver of any rights or remedies provided herein or any applicable law.
The City will compensate Consultant for the services performed upon submission of a valid invoice. Each invoice is to include:
A. Line items for all personnel describing the work performed, the number of hours worked, and the hourly rate.
B. Line items for all materials and equipment properly charged to the services.
C. Line items for all other approved reimbursable expenses claimed, with supporting documentation.
D. Line items for all approved sub-consultant labor, supplies, equipment, materials, and travel properly charged to the services.
2.5 Waiver.
Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance.
Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in Exhibit “A” and incorporated herein by this reference. When requested by the Consultant, extensions of the time period(s) specified in Exhibit “A” (“Schedule of Performance”) may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180) days cumulatively, as set forth in Section 1.8, above.
3.3 Force Majeure.
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unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified, subject to the provisions of Section 1.8, above. The Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Consultant be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Consultant’s sole remedy being extension of the Agreement pursuant to this Section.
3.4 Term.
Unless earlier terminated in accordance with Article 7 of this Agreement, the term of this Agreement shall continue in full force and effect until completion of the services but not exceeding three (3) years from the date hereof, with the option to extend for two (2) additional years.
Maximum term and any subsequent amendment or modification shall not exceed five (5) years.
ARTICLE 4. COORDINATION OF WORK
4.1 Principals of Consultant.
The following representatives and personnel of Consultant (Principals) are hereby designated as being the Principals of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
Patrick Johnson, PE, CBO, Director of Building and Safety It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing Principals shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent personnel to perform services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subconsultants, if any, assigned to perform the services required under this Agreement. Consultant shall notify City of any changes in Consultant’s staff and sub-consultants, if any, assigned to perform the services required under this Agreement, prior to and during any such performance. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires to reassign any staff or sub-consultant of Consultant, Consultant shall, immediately upon receipt of a written reassign notice from City which requests such a reassignment, reassign such person or persons.
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4.2 Status of Consultant.
Consultant shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Consultant expressly waives any claim Consultant may have to any such rights.
4.3 Contract Officer.
The Contract Officer shall be such person as may be designated by the City Manager. It shall be the Consultant’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Consultant shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
4.4 Independent Consultant.
Neither the City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Consultant’s employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all services required herein as an independent Consultant of City and shall remain at all times as to City a wholly independent Consultant with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venture or a member of any joint enterprise with Consultant.
4.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty-five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this DocuSign Envelope ID: BF19E5FB-E9C8-4817-84E1-68BA67ABD6B0 222
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Agreement shall be void. No approved transfer shall release the Consultant or any surety of Consultant of any liability hereunder without the express consent of City.
ARTICLE 5. INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance Coverages.
Throughout the life of this Agreement, Consultant shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated not less than “A- VII” in Best's Insurance Rating Guide, or (ii) authorized by the City Manager or his/her designee at any time and in his/her sole discretion. The following policies of insurance are required:
(i) COMMERCIAL GENERAL LIABILITY insurance which shall be at least as broad as the most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01 and include insurance for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Contract) with limits of liability of not less than the following:
$1,000,000 per occurrence for bodily injury and property damage $1,000,000 per occurrence for personal and advertising injury $2,000,000 aggregate for products and completed operations $2,000,000 general aggregate
(ii) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be at least as broad as the most current version of Insurance Service Office (ISO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1 Any Auto) with limits of liability of not less than $1,000,000 per accident for bodily injury and property damage.
(iii) WORKERS’ COMPENSATION insurance as required under the California Labor Code.
(iv) EMPLOYERS’ LIABILITY insurance with limits of liability of not less than $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee.
(v) PROFESSIONAL LIABILITY Professional Liability (Errors and Omissions) insurance appropriate to Consultant’s profession, with limits of liability of $1,000,000 per claim/occurrence and $1,000,000 policy aggregate.
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In the event Consultant purchases an Umbrella or Excess insurance policy(ies) to meet the minimum limits of insurance set forth above, this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies).
If this Agreement continues for more than three (3) years duration, or in the event the City Manager or his/her designee determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Consultant agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the City Manager, or his/her designee.
Consultant shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Consultant shall also be responsible for payment of any self-insured retentions.
Any deductibles or self-insured retentions must be declared to, and approved by, the City Manager or his/her designee. At the option of the City Manager or his/her designee, either: (i) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to City, its Council members, officers, officials, employees and agents; or (ii) Consultant shall provide a financial guarantee, satisfactory to the City Manager or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall the City be responsible for the payment of any deductibles or self-insured retentions.
5.2 General Requirements.
All policies of insurance required hereunder shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after 30 calendar day written notice has been given to City. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, Consultant shall furnish City with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the Schedule of Performance for the work to be performed for City, Consultant shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than 15 calendar days prior to the expiration date of the expiring policy.
The General Liability and Automobile Liability insurance policies shall be written on an occurrence form. The General Liability (including ongoing and completed operations) and Automobile Liability shall name City and its officers, officials, employees, agents and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Consultant’s insurance shall be “primary and non-contributory” and will not seek contribution from the City’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13. The coverage shall contain no special limitations on the scope of protection afforded to the City and its officers, officials, employees, agents and volunteers. The Workers’ Compensation insurance policy shall contain a waiver of subrogation as to City and its officers, officials, employees, agents and volunteers.
Should Consultant maintain insurance with broader coverage and/or limits of liability greater than those shown above, City requires and shall be entitled to the broader coverage and/or the higher limits of liability maintained by Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
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If the Professional Liability (Errors and Omissions) insurance policy is written on a claims-made form:
1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by Consultant.
2. Insurance must be maintained and evidence of insurance must be provided for at least three years after any expiration or termination of the Agreement or, in the alternative, the policy shall be endorsed to provide not less than a three-year discovery period.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by Consultant, Consultant must purchase extended reporting coverage for a minimum of three years following the expiration or termination of the Agreement.
4. A copy of the claims reporting requirements must be submitted to City for review.
5. These requirements shall survive expiration or termination of the Agreement.
Consultant shall furnish City with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the City Manager or his/her designee prior to City’s execution of the Agreement and before work commences.
If at any time during the life of this Agreement or any extension, Consultant or any of its subcontractors fail to maintain any required insurance in full force and effect, all work under this Agreement shall be discontinued immediately, and all payments due or that become due to Consultant shall be withheld until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. No action taken by City hereunder shall in any way relieve Consultant of its responsibilities under this Agreement.
Upon request of City, Consultant shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement.
The fact that insurance is obtained by Consultant shall not be deemed to release or diminish the liability of Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City and its officers, officials, employees, agents and volunteers shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Consultant, its principals, officers, employees, agents, persons under the supervision of Consultant, vendors, suppliers, invitees, subcontractors, or anyone employed directly or indirectly by any of them.
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If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall require each subcontractor to provide insurance protection in favor of City and its officers, officials, employees, agents and volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors’ certificates and endorsements shall be on file with Consultant and City prior to the commencement of any work by the subcontractor.
5.3 Indemnification, Hold Harmless, and Duty to Defend.
A. Indemnity.
1) To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively “Indemnitees”) from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively “Claims”), 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 Consultant, its officers, agents, servants, employees, subcontractors, materialmen, contractors or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ passive negligence, except for Claims arising from the sole negligence or willful misconduct of the Indemnitees, as determined by court decision or by the agreement of the Parties.
Consultant shall defend the Indemnitees in any action or actions filed in connection with any Claim with counsel of the Indemnitees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by the Indemnitees in connection therewith.
2) Consultant shall pay all required taxes on amounts paid to Consultant under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant shall fully comply with the workers’ compensation law regarding Consultant and Consultant’s employees. Consultant shall indemnify and hold City harmless from any failure of Consultant to comply with applicable workers’ compensation laws. City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this subparagraph B.2). 3) Consultant shall obtain executed indemnity agreements with provisions identical to those in this Section from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement.
If Consultant fails to obtain such indemnities, Consultant shall be fully responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Claims in law or equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or DocuSign Envelope ID: BF19E5FB-E9C8-4817-84E1-68BA67ABD6B0 226
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relate to the acts or omissions of Consultant’s subcontractor, its officers, agents, servants, employees, subcontractors, materialmen, contractors or their officers, agents, servants or employees (or any entity or individual that Consultant’s subcontractor shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Claims arising from the sole negligence or willful misconduct of the Indemnitees, as determined by court decision or by the agreement of the Parties.
B. Workers’ Compensation Acts not Limiting. Consultant’s indemnifications and obligations under this Section, or any other provision of this Agreement, shall not be limited by the provisions of any workers’ compensation act or similar act. Consultant expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents, employees and volunteers.
C. Insurance Requirements not Limiting. City does not, and shall not, waive any rights that it may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The indemnities in this Section shall apply regardless of whether or not any insurance policies are determined to be applicable to the Liabilities, tax, assessment, penalty or interest asserted against City.
D. Survival of Terms. Consultant’s indemnifications and obligations under this Section shall survive the expiration or termination of this Agreement.
ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records.
Consultant shall keep, and require sub-consultants to keep, such ledgers books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the books and records may be given to City, and access shall be provided by Consultant’s successor in interest.
6.2 Reports.
Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or DocuSign Envelope ID: BF19E5FB-E9C8-4817-84E1-68BA67ABD6B0 227
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will materially increase or decrease the cost of the work or services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the “documents and materials”) prepared by Consultant, its employees, sub-consultants and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Consultant will be at the City’s sole risk and without liability to Consultant, and Consultant’s guarantee and warranties shall not extend to such use, revise or assignment. Consultant may retain copies of such documents for its own use. Consultant shall have an unrestricted right to use the concepts embodied therein. All sub-consultants shall provide for assignment to City of any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom.
6.4 Confidentiality and Release of Information.
(a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer.
(b) Consultant, its officers, employees, agents or sub-consultants, shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Consultant gives City notice of such court order or subpoena. (c) If Consultant, or any officer, employee, agent or sub-consultant of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct. (d) Consultant shall promptly notify City in writing should Consultant, its officers, employees, agents or sub-consultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for DocuSign Envelope ID: BF19E5FB-E9C8-4817-84E1-68BA67ABD6B0 228
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admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement shall be interpreted, construed and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
7.2 Disputes; Default.
In the event that City determines Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Consultant’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds.
Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement) (i) any payment amount of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, (ii) all amounts for which City may be liable to third parties, by reason of Consultant’s acts or omissions in performing or failing to perform Consultant’s obligation under this Agreement, and (iii) all payments due or that become due to Consultant during the period that Consultant or any of its subcontractors fail to maintain any required insurance in full force and effect, until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City, as provided in Section 5.2, above. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to DocuSign Envelope ID: BF19E5FB-E9C8-4817-84E1-68BA67ABD6B0 229
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be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver.
Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
7.6 Legal Action.
In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Consultant must file a statutory claim pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action against City under this Agreement.
7.7 Liquidated Damages.
Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Consultant and its sureties shall be liable for and shall pay to the City the sum of Not Applicable ($0.00) as liquidated damages for each working day of delay in the performance of any service required hereunder, as specified in the Schedule of Performance. The City may withhold from any monies payable on account of services performed by the Consultant any accrued liquidated damages.
7.8 Termination Prior to Expiration of Term.
This Section shall govern any termination of this Agreement except as specifically provided in the following Section 7.9 for termination for default of Consultant. The City reserves DocuSign Envelope ID: BF19E5FB-E9C8-4817-84E1-68BA67ABD6B0 230
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the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days’ written notice to Consultant, except that where termination is due to the fault of the Consultant, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Consultant reserves the right to terminate this Agreement at any time, with or without cause, upon sixty (60) days’ written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Consultant may determine. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Consultant has initiated termination, the Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Exhibit “A-1” or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating Party need not provide the non-terminating Party with the opportunity to cure pursuant to Section 7.2.
7.9 Termination for Default of Consultant.
If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as provided in Section 7.3.
7.10 Attorneys’ Fees.
If either Party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney’s fees. Attorney’s fees shall include attorney’s fees on any appeal, and in addition the Party entitled to attorney’s fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
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8.2 Conflict of Interest.
Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or sub-consultant without the express written consent of the Contract Officer. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement within the scope of Government Code section 1090, nor shall any such officer or employee make, participate in making, or use his or her official position to influence, any City decision relating to the Agreement which has a material financial effect on his or her financial interests or the financial interests of any corporation, partnership or association in which he or she is, directly or indirectly, interested, in violation of any State statute or regulation. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, or ancestry in the performance of this Agreement.
Consultant shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry, or other protected class.
8.4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should the any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by City.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices.
Any notice, demand, request, document, consent, approval, or communication either Party desires or is required to give to the other Party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, CITY OF BANNING, 99 East Ramsey Street, DocuSign Envelope ID: BF19E5FB-E9C8-4817-84E1-68BA67ABD6B0 232
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Banning, CA 92220 and in the case of the Consultant, to the person at the address designated on the execution page of this Agreement. Either Party may change its address by notifying the other Party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
9.2 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
9.3 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
9.4 Integration; Amendment.
This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the Parties. It is understood that there are no oral agreements between the Parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the Parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Consultant and by the City Council. The Parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
9.5 Severability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
9.6 Corporate Authority.
The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties. [SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first hereinabove written.
CITY OF BANNING CONSULTANT
Douglas Schulze, Date
City Manager
NAME: DATE
TITLE:
NAME: DATE
TITLE:
ATTEST:
Tax ID No.
Laurie Sampson, Date
Acting Deputy City Clerk
Address:
APPROVED AS TO FORM:
Richards, Watson & Gershon
Serita Young Date
Assistant City Attorney
Two signatures are required if a corporation
DocuSign Envelope ID: BF19E5FB-E9C8-4817-84E1-68BA67ABD6B0 Patrick Johnson
2401 E. Katella Ave., Suite 300 Anaheim, CA 92806
Director - Building & Safety
95-2295858
9/25/2019
9/25/2019
9/25/2019
9/25/2019
234
Exhibit “A”-1
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EXHIBIT “A”
SCOPE OF SERVICES
I. Consultant will perform the following services in connection with providing building and safety plan check & landscape design review services prepared in connection therewith:
Consultant services – Consultant will provide personnel to act under the direction and supervision of the Community Development Director and the City’s Building Official/Development Services Manager, in executing the scope of services referenced herein, and on behalf of the City.
A. Building & Safety Services
These positions are responsible for all Building and Safety Services, counter assistance, permitting and development activities, inspection, and public inquiries, including, but not limited to:
1. Front counter support (City Hall) – Current City Hall hours are 8:00 a.m. to 5:00 p.m., Monday through Friday; however, City Hall business hours are subject to change. The Consultant shall include provisions for schedule change; subject to advanced and proper notice to the Consultant.
2. Building inspection – Field hours are 7:00 a.m. to 5:30 p.m., Monday through Friday.
3. Building permits and plan check/processing. Current City Hall hours are 8:00 a.m. to 5:00 p.m., Monday through Friday; however, City Hall business hours are subject to change.
The Consultant shall include provisions for schedule change subject to advanced and proper notice to the Consultant.
4. Building Permit Plan Review Services; which include, but are not limited, to Building, Structural, Electrical, Plumbing, Mechanical, and Green Codes, ADA accessibility, grading, drainage, civil (streets, sewer, water, recycled water, and gas). Plan check shall also include the review and verification of compliance in Best Management Practices (BMP’s) and NPDES storm water compliance (the City operates under the Municipal Storm Water (MS) – 4 permit under the Colorado Regional Water Quality Control Board (CRWQCB), located within the Whitewater watershed. At this time, fire code plan review will continue to be performed by Calfire. The consultant shall also include coordination with Banning Electric Utility (BEU) in compliance with the City’s electric utility services.
5. Plan check monitoring/permit issuance for grading, building, electrical, mechanical and plumbing work, etc.
6. Inspection services for Structural, Electrical, Plumbing, Mechanical, and Green Codes, ADA accessibility, grading, erosion control, etc.
7. Monitor and respond to client/applicant/resident’s inquiries, provide excellent customer service and resolve complaints to the greatest extent possible, under the supervision of the Building Official and Community Development Director.
8. Accept and respond to Public Records Act (PRA) request under the supervision of the City Clerk or her designee and the Community Development Director.
DocuSign Envelope ID: BF19E5FB-E9C8-4817-84E1-68BA67ABD6B0 235
Exhibit “A”-2
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9. Review and update the Building/Safety Procedures Manual.
10. Assist with permit audits from WRCOG, RCA, TUMF, and other external agencies as applicable.
11. Manage and issue permits associated with construction and demolition debris recycling; including, but not limited to asbestos and other applicable Hazardous Materials related matters.
12. Assist in Building Code enforcement and abatement; including stop work orders, permit suspension, and coordination with the Code Enforcement Department. NOTE: Banning Code Enforcement Department is now under the supervision, direction, and management of the Banning Police Department (Chief Matthew Hamner).
13. Prior preparation for and participation in the Planning Divisions’ development review and Preliminary Application Committee (PAC) review process and procedures. During the periodic meetings, cases are reviewed by members of the Planning, Building, Engineering, Public Works, Fire, and Utility divisions of the City, and comments are given to the applicant's project team.
14. Prepare statistical reports, as needed, on permit issuance metrics for the City’s Executive Management Team.
15. Responsible for the maintenance of building and permit records, including the preparation of permit and related documents for storage and/or imaging.
B. Landscape Design Review and Plan Check Related Services
1. Review Landscape Plan Cover Sheet and Title Block.
2. Review, plan check, and provide both written and redline corrections to customers Preliminary and Final Landscaping Plans (“working drawings”) for commercial industrial, residential, and civic developments.
3. Consultant shall review both Preliminary and Final Landscape Plans concurrent with state law and local water efficiency landscape rules and ordinances.
4. Review, redline and/or approve Landscape Irrigation Plans (per the Banning Municipal Code), IA standards, and ET requirements.
5. Review, redline and/or approve Landscape Planting Plans (per Banning Municipal Code), WUCLOS & Sunset zones, and proper planting location.
6. Review, redline and/or approve Landscape Irrigation Details and Specifications.
Landscape Planting Details and Specifications.
7. Verify Maximum Allowable Water Allowance (MAWA). “California Friendly” planting palette.
8. Review, redline and/or approve plans are aligned with the City of Banning Landscape Guidelines and Standards.
DocuSign Envelope ID: BF19E5FB-E9C8-4817-84E1-68BA67ABD6B0 236
Exhibit “A”-3
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9. Verify Maintenance Responsibility.
10. Review, redline and/or approve line of sight conditions (lines to be prepared by Civil Engineer).
11. Verify consistency with other planned improvements.
12. Verify Irrigation System is designed with velocities less than 5 feet per second (FPS) or 7 fps brass/copper.
Service Time frame for Delivery
Major plan check 10 calendar days
Subsequent plan checks 5 calendar days
Minor plan checks and single story
homeowner additions
3 days if submitted into plan check or over the
counter during a designated time period each
day
Building inspection The following working day if request is received before 2 PM
Grading plan check 10 calendar days
Subsequent grading plan checks 7 calendar days
Grading Inspection The following working day if request is received before 2 PM
Preliminary Landscaping Review 10 calendar days for Preliminary (Conceptual) Landscape Plans
Final Landscape Plan Review (i.e., “working
drawings)
14 calendar days for Final Landscape Plans
Assistance at the public counter Immediately during City Hall hours Return of phone calls Within 24-hours of receipt
Monthly statistical accounting Completed at the end of each month C. Included Duties, Responsibilities, and Information
The consultant shall be responsible to ensure that all other Building and Safety duties and followup – not specifically mentioned in the table above – are performed in a timely and responsive manner.
The consultant shall be responsible to ensure all personnel assigned to the City of Banning have sufficient on-going training to perform their assigned duties. The consultant will be required to assist the City in any ISO audits that arise during the contract term. The consultant will also be required to furnish at least two copies of the latest adopted building code, including one copy to the City Clerk for the official City record and to keep those materials up to date. Consultant is advised that Section 15.12.010 of the municipal code states that no building permit fees are required for city owned buildings.
Consultant shall provide staff that are assigned to be at the City full-time, are customer-service oriented, and have experience with successfully managing multiple tasks, assignments and responsibilities. Consultant will ensure that it has assigned personnel – with contact and coverage DocuSign Envelope ID: BF19E5FB-E9C8-4817-84E1-68BA67ABD6B0 237
Exhibit “A”-4
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information clearly communicated to the City – that are required to be available to respond to emergency situations that may require Building and Safety services at times when City Hall is closed for business.
The City is in the process of scanning and digitizing the catalog of old building plans and permits with the goal of maintaining only electronic versions of plans for projects that have been completed. There is a significant backlog of this material. Consultant will be required to utilize a City-provided scanner to scan copies of every plan in the catalog and attach the scanned files to the appropriate parcel in the land management software. This process must be completed during the first two years of the contract. In addition, Consultant will be required to obtain electronic copies of “As-Built” plans at the completion of each project and attaching the electronic files to the parcel in accordance with the City’s records retention policy.
I. CITY PROVIDED OFFICE SPACE AND EQUIPMENT
The City will provide only the following office space and equipment for use in performing building and safety services:
1. Use of office space at City Hall that is approximately the same square footage and configuration currently occupied by the Building & Safety Division
2. Use of approximately four (4) City office phones
3. Use of office furniture
4. Use of approximately four (4) City network computers with scanners
5. Copier, Scanner, Fax, filing, and other required office support as deemed reasonable by the Community Development Director; including consistent with the City’s adopted Budget).
DocuSign Envelope ID: BF19E5FB-E9C8-4817-84E1-68BA67ABD6B0 238
Exhibit “A-1”-1
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EXHIBIT “A-1”
CONSULTANT’S PROPOSAL
(pages 3-11)
DocuSign Envelope ID: BF19E5FB-E9C8-4817-84E1-68BA67ABD6B0 239
CITY OF BANNING Proposal – RFP No. 19-045
P a g e | 3
Key Personnel
We recognize that the City's departmental workload fluctuates. Willdan hires professionals in three categories – full-time, modified full-time, and part-time. Part-time staff may work up to 40 hours per week. Our proposed staff are qualified registered engineers, architects and ICC certified plans examiners, building and public works inspectors. All services will be provided from our local San Bernardino office, with additional resources employed company-wide as necessary. No subcontractors will be employed for these services to the City.
Name/Title Registrations/Certifications Qualifications
Management/Plan Review
Patrick Johnson, PE,
CBO
Director/
Building Official
▪ Civil Engineer, California No. CE#67960
▪ Civil Engineer, Arizona No. 50435
▪ Civil Engineer, Colorado No. 43704
▪ ICC Plans Examiner
▪ ICC Building Inspector
▪ ICC Building Official
On-Call Building Official Services
James Barrett, CBO
Project Manager
▪ ICC Building Official
▪ ICC Building Inspector
Project Manager
Brian Gumpert, CBO
Sr. Plans Examiner
▪ ICC Building Official
▪ ICC Building Inspector
▪ ICC Plans Examiner
▪ ICC Commercial Plumbing Inspector
▪ ICC Residential Plumbing Inspector
▪ ICC Plumbing Inspector
▪ IAPMO Plumbing Inspector
▪ IAPMO Mechanical Inspector
Building plan review:
Architectural, plumbing, mechanical,
electrical, energy, accessibility, green
building, fire life-safety.
Daren Raskin, PE
Supervising Plan Check
Engineer/Plan Check
Manager
▪ California Professional Engineer, CE#57577
▪ ICC Plans Examiner
Building plan review: Structural,
architectural, plumbing, mechanical,
electrical, energy, green building,
accessibility, residential, and
commercial.
Aaron Cowen, PE
Plan Check Engineer
▪ California Professional Engineer, CE#58878
▪ ICC Plans Examiner
Building plan review: Structural,
architectural, plumbing, mechanical,
electrical, energy, green building,
accessibility, residential, and
commercial.
Arne Lovnaseth, CASp
Plan Check Architect
▪ California Licensed Architect
▪ CASp Certified FFPA Plan Check Certificate
▪ ICC Certified Plans Examiner
Building plan review:
Architectural, plumbing, mechanical,
electrical, energy, accessibility, green
building, fire life-safety.
Rouhi El-Rabaa, EIT
Plans Examiner II
▪ ICC Plan Examiner
▪ EIT Certification
Building plan review:
Architectural, plumbing,
mechanical, electrical, energy,
accessibility, green building, fire
life-safety.
Christian Mui, EIT
Plans Examiner
▪ EIT
▪ ICC Plan Examiner
Building plan review: Architectural,
plumbing, mechanical, electrical,
energy, accessibility, green building, fire
life-safety.
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Dana Reed, CASp
Deputy Building
Official
▪ CASp Certified FFPA Plan Check Certificate
▪ ICC Certified Plans Examiner
Building plan review: Architectural,
plumbing, mechanical, electrical,
energy, accessibility, green building,
fire life-safety, OSHPD III.
Ricardo Guzman, PE,
SE
Plan Check Engineer
▪ Structural Engineer, California #1833
▪ Civil Engineer, California #21238
Building plan review:
Structural, architectural, plumbing,
mechanical, electrical, energy, green
building, accessibility, residential, and
commercial.
Michael Zabala, CBO
Deputy Building
Official
▪ ICC Building Official
▪ ICC Plan Examiner
▪ ICC Plumbing Inspector
▪ ICC Building Inspector
Building plan review: Architectural,
plumbing, mechanical, electrical,
energy, accessibility, green building,
fire life-safety.
John Hidalgo
Landscape
Architect/Plan Review
▪ Landscape Architect, California, No. 3551
▪ Landscape Architect, Nevada, No. 788
▪ Licensed Contractor, California C-27, No.
713613
Landscape plan review: Landscape
architectural reviews.
Bryan Nguyen, RLA
Landscape
Architect/Plan Review
▪ Landscape Architect, California No. 4967
▪ Landscape Architect, Nevada No. 757
▪ Certificate of Completion for MWELO
Landscape plan review: Landscape
architectural reviews.
Building Inspection
Martin True, BI
Sr. Building Inspector
▪ ICC Certified Commercial Building Inspector
▪ ICC Certified Combination Dwelling
Inspector
▪ ICC Certified Reinforced Concrete Special
Inspector
▪ ACI Certified Concrete Field-Testing
Technician Grade 1
Building Inspection: Multi-story office
buildings, commercial buildings, retail
outlets, single-family, medical facilities,
educational facilities and multi-family
residential developments.
Alan Ryzner, BI
Sr. Building Inspector
▪ ICC Building Inspector
▪ ICC Plumbing Inspector
▪ ICC Mechanical Inspector
▪ ICC Electrical Inspector
▪ ICC Combination Inspector
▪ IAPMO Mechanical Inspector
Building Inspection: Multi-story office
buildings, commercial buildings, retail
outlets, single-family, medical facilities,
educational facilities and multi-family
residential developments.
Robert Houts, BI
Sr. Building Inspector
▪ ICC Building Inspector
▪ ICC Housing/Property Maintenance
▪ PC 832
▪ CALBO Post Disaster Safety Assessment
Certificate
▪ CACEO/SCACEO
Building Inspection: Multi-story office
buildings, commercial buildings, retail
outlets, single-family, medical facilities,
educational facilities and multi-family
residential developments.
Permit Technician
Sharon Barrett
Sr. Permit Counter
Technician
▪ ICC Certified Permit Technician Permit Technician: Building department counter coverage, answer
phone calls, respond to inquiries, issue
permits.
Leslee Starling
Sr. Permit Counter
Technician
▪ ICC Certified Permit Technician Permit Technician: Building department counter coverage, answer
phone calls, respond to inquiries, issue
permits.
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Statement of Understanding/Approach
WORK PLAN
When it comes to serving the residents of the City of Banning community, Willdan sees our role as that of facilitator and guide—helping the City’s customers in getting through the review, permitting, and inspection process—rather than leaving the applicant in a bind in obtaining or signing off permits. We understand that the process of complying with the various codes, standards, regulations and laws can be a formidable and daunting undertaking—for even the most seasoned design or construction professional. Furthermore, an understanding of the complexity associated with processing private development applications and the sometimes-competing interests is essential to exceptional customer service. Competing interests include, but are not limited to, creating a sense of place, achieving economic development objectives, ease of maintenance, and assuring the City will be as satisfied with the infrastructure on day one as 20 years from “day one.” Common sense decision making and technical analysis in interpreting the intent of regulatory guidelines are significant strengths Willdan staff brings to the City.
Our proven approach is based on over 40 years of experience and incorporates features enhancing the efficiency and quality of the following services:
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SCOPE OF WORK
Building Official Services
Our proposed Building Official, Mr. Patrick Johnson, PE, CBO, will oversee all plan checking, building inspections and permit counter technician services, and will act as the City’s representative on buildingrelated matters. He will be scheduled on-site five to ten (5 -10) hours per week and will be available by phone and email during regular City Hall business hours. Responsibilities include, but are not limited to:
▪ Function as the Building Official as set forth in the California Building Code, in other City adopted building codes, ordinance Municipal Code, and as specified in Federal and State law.
▪ Issue Certificates of Use and Occupancy for building and structures. ▪ Assist in the coordination and oversight of the building permit, building inspection, building counter and building code enforcement services so that they function as one building and safety organization.
▪ Maintain, amend and develop ordinances and regulations necessary to implement and enforce the latest editions of the California Building Code, including any and all related Codes, or other uniform safety codes, laws, or regulations as adopted or amended by the City deemed necessary by the City to protect the health safety and welfare of its citizens. ▪ Prepare building and safety code violation cases for submittal to the City Attorney’s office when prosecution action is necessary to obtain compliance with existing codes and regulations. ▪ Quality control review of building inspections.
▪ Resolution of resident inquiries and complaints.
▪ Make determination on the approval and use of alternative materials and methods of construction.
▪ Assist in the administration and processing of complex Building Code issues and dispute resolution, including making final interpretations concerning the application of building and safety codes.
▪ Contribute the necessary resources to the configuration, implementation and on- going support of an automated permitting system
▪ Review discretionary applications for preliminary compliance with construction codes. ▪ Coordinate with Code Enforcement regarding abatement program. ▪ Review and update the Building/Safety Procedures Manual. ▪ Monthly Reporting of Building and Safety Activities as well as reports required for fee collection and other reports required by the State of California or other government agencies. ▪ Review Planning Commission & City Council staff reports related to Building & Safety items (as needed).
▪ Periodic attendance at Planning Commission and City Council meetings (as needed). ▪ Provide emergency and after-hours inspection and reports of damaged properties or structures.
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▪ Meet with developers, homeowners, business owners, architects, engineers and the general public at the City or in the field, as the need dictates, to resolve grievance and/or respond to questions and ensure timely project processing in compliance with Federal, State and City laws and ordinances.
Building Plan Review Services
Willdan Engineering presently provides Building and Safety services to a number of municipalities and jurisdictions throughout Southern, Central, and Northern California. In this capacity, we provide a full range of services including plan review, permit issuance, inspection, code enforcement, counter technician and Building Official services.
We service client needs from an occasional overload plan review to staffing an entire Building Division. Willdan has gained a great deal of municipal
insight and expertise in serving our
extensive clientele over the years. We have
performed plan review and inspection on
projects ranging from single family
residential additions to complex high rise
towers (including hotels and casinos),
parking structures, medical facilities and
industrial centers.
Willdan's plans examiners are ICC certified plans examiners, CASp certified, licensed architects, and/or registered engineers.
Willdan’s experience and strength in building and safety encompasses the complete range of technical disciplines, that is, structural engineering plan check, fire-life safety, electrical, plumbing and mechanical codes, the Title 24 codes, as well as local amendments to the adopted codes. We have extensive experience with the California Green Building Standards Code. Willdan staff attends classes and seminars on a regular basis to uphold an up-to-date comprehension of all code requirements and to maintain current at no expense to our clients.
All building plans will be examined for compliance with the City’s adopted version of the California Building Code, California Residential Code, Green Building Standards Code, California Mechanical Code, California Plumbing Code, California Electrical Code, and the Accessibility, Noise and Energy Conservation requirements as mandated by State Title 24 and all applicable City Ordinances. Plan review for Disabled Access Compliance will include a review of precise grading plans.
All plan check will include compliance with code requirements as well as an overview of the application package for other applicable requirements such as approvals from other local agencies and districts and coordination with other City departments. All plan review will comply with the City’s directives, codes and policies.
“We really appreciate Willdan’s timely responses and professional advice to our questions and concerns related to plan check comments and general code issues. Willdan’s professionalism and knowledge of the plan check process was immensely helpful in cutting cost and schedule. It has been really great to work with Willdan and we hope we will keep working with them for future work.”
Inkon Kim, PhD, LEED AP
HPA, Inc.
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Plan check will include a review of any or all of the following design elements as determined by the City:
▪ Architectural
▪ Fire/Life-safety
▪ Plumbing
▪ Mechanical
▪ Structural
▪ Electrical
▪ Energy Conservation Regulations (Title 24)
▪ Disabled Access Regulations (CBC)
▪ Green Building Standards
▪ CASp
Willdan will provide two complete typewritten plan check letters which outline the documents reviewed, instructions to the applicant regarding the processing of documents, and a listing of plan check comments. The plan check comments will refer to appropriate sheets, details or calculation pages and the code section of concern. Comments shall specify the apparent code violation. At the City’s discretion, plan check comments, plans and documents will be returned directly to the designers until such time as plans are approved.
Willdan staff will pick up plans from City Hall and/or provide delivery service at no additional cost to the City. We will supply the City with plan bags and shipping labels as well as Willdan’s FedEx and OnTrac account numbers.
Plan review status can be accessed 24 hours a day by going to our website (http://willdan.com/new/clientLinks.aspx#planreview) and entering either the plan check/permit number, or the project site address. This service is provided for applicants, designers, engineers, and City staff.
Our plan checkers will schedule meetings during work hours to discuss and clarify plan check issues with designers, owners and contractors. Resolutions of code issues may also be accomplished by telephone and/or email as well as scheduled meetings prior to resubmitting corrected plans and documents. We will respond to inquiries from applicants within one day.
ELECTRONIC PLAN REVIEW
Willdan has long had the ability to provide plan review services electronically, at no additional cost to the City or applicants.
The many advantages of our “tree-saving” electronic plan review process includes the elimination of the need for additional computer software or hardware–only an Internet connection is necessary. Electronic plan review services are provided at the request of the applicant or the agency we serve.
Submittals are accepted in PDF format and reviewed in
Bluebeam. Willdan will review plans and has the ability to transmit the redlined plans back to the applicant or designer via the website, along with the plan review comment sheet.
This service allows for on-line collaboration between the City, designer and plans examiner to facilitate a complete understanding of plan review comments and can reduce shipping, printing and timelines for plan review processing for the applicant.
"Working with Willdan speeds up the
installation of solar. They have quick and
efficient plan reviews through an
electronic review process. Complete Solar
is happy to continue to work with Willdan
on a regular basis.”
Sarah Prado, Agent
Complete Solar
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Building Inspection Services
Our inspectors are ICC certified and fully experienced to perform residential, commercial and industrial inspections for compliance to the approved plans and related documents. The inspections will be performed in accordance with the City’s adopted version of the California Building Code, California Residential Code, Green Building Standards Code, California Mechanical Code, California Plumbing Code, California Electrical Code, and the State and Federal regulations for Accessibility, Noise and Energy Conservation, California Fire Code and provisions of Title 19 and NFPA.
Inspection staff will be available to meet with City staff, builders, developers, and citizens to provide assistance and resolve any inspection issues that may arise. Inspectors shall attend and participate in required meetings with other City inspection and plan review staff, property owners, contractors and/or design professionals.
Inspectors will review the permit package to verify that the on-site condition is consistent with the appropriate records for square footage, setbacks, heights, and other requirements that may be applicable. Inspectors will comply with the City’s procedures for reporting inspection results, use City inspection correction forms, make appropriate entries onto the permit documents, and follow City procedures prior to finalizing a building permit.
Willdan will verify that all inspection records, including daily records of what was inspected which will be recorded on the job card, and permit copy entered into the City’s Building and Safety computer system. We will employ such techniques as necessary to minimize delays to builders and provide helpful advice and counsel to builders, owners, engineers and architects as to enhance the orderly flow of the construction process yet maintaining an effective level of enforcement. Inspectors shall ensure that any construction changes are documented and approved by appropriate City staff.
CASp SERVICES
Willdan can provide CASp certified inspectors to the City as required by Senate Bill No. 1608, specifically CHAPTER 549 which reads as follows:
(d) (1) Commencing July 1, 2010, a local agency shall employ or retain at least one building inspector who is a certified access specialist. The certified access specialist shall provide consultation to the local agency, permit applicants, and members of the public on compliance with state construction-related accessibility standards with respect to inspections of a place of public accommodation that relate to permitting, plan checks, or new construction, including, but not limited to, inspections relating to tenant improvements that may impact access. If a local agency employs or retains two or more certified access specialists to comply with this subdivision, at least one-half of the certified access specialists shall be building inspectors who are certified access specialists.
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Permit Technician Services
Under the supervision of the Building Official, our provided permit technician will provide customer-friendly public counter service. Using the City’s permitting software system for plan check tracking, permit issuance and report generation, Willdan provides quick, efficient service at the counter. Our knowledgeable staff, who always understand that this may be the first time that a citizen is applying for a permit, have the ability to help all applicants, from the least knowledgeable applicant for a simple home remodel to experienced owners who have many years of development experience. Our goal is to make sure that every applicant feels that we have answered their questions and met their needs. The designated permit technician will provide counter services during City Hall hours.
Our building counter services include but are not limited to:
▪ Customer support at the counter and over the phone
▪ Permit application review to ensure completeness and accuracy ▪ Fee calculation
▪ Building permit processing and issuance
▪ Public assistance in completing permit applications
▪ Verification that projects have obtained all necessary approvals prior to permit issuance ▪ Applicant notification when construction documents and/or permits are ready for pick-up or issuance
▪ Coordination and routing of construction documents to the appropriate City staff for plan review and approval
▪ Resolution of resident inquires, complaints
▪ Plan review monitoring, to ensure turnaround times and standards are being met ▪ Records maintenance, document preparation for storage and or imaging Landscape Design Plan Review
Willdan offers a full complement of landscape architectural services, including WELO landscape plan reviews. In developing quality project plans, our landscape architects apply their knowledge in site analysis, user-need programming, site design, urban and street beautification design, landscape preservation, water conservation, and arboriculture.
These combined services provide additional insight for plan reviews since they require attention to detail, emphasis on project completeness, and enhanced understanding of the combined overall project scope. Landscape plan review includes but is not limited to:
▪ Review of preliminary and final landscaping plans for commercial, residential and civic developments
▪ Review of landscape irrigation plans and specifications per the Banning Municipal Code, IA standards and ET requirements
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▪ Review of landscape planting plans per Banning Municipal Code, WUCOLS (Water Use Classification of Landscape Species), Sunset Zone (on the edge of Zone 18) and proper planting location
▪ Verify MAWA (Maximum Allowable Water Allowance)
▪ Review line of sight conditions
Schedules
Plan Check/Inspection
Expedited plan review can be provided at the City’s request. Average turnaround times are delineated below but can be adjusted when necessary.
Residential/Commercial Plans 8 – 10 working days 5 working days Solar Plans 2 – 3 working days 1 – 2 working days
Preliminary Landscape Design Plans 10 working days
Final Landscape Design Plans 10 – 12 working days 8 working days Minor Plans and Single-Story Additions 3 working days (over the counter)
1 working day
(over the counter)
Building Inspection Following work day if request is received before 4:00pm
City Staff Roles
Permanent City staff will fill their respective. Willdan staff will work alongside City staff as one cohesive group with a common purpose and task. There will be no discernable difference between Willdan and City staff except as follows: City staff will solely be responsible for enforcing City General Plan requirements, public works and Municipal Code requirements not included in the scope of responsibility outlined in this proposal and subsequent agreement. City staff is also responsible for management related to the personnel matters of their staff respectively; Willdan Building staff will not be responsible for inter-City personnel issues or the implementation of City-wide decisions and directives that come directly from City management or elected officials as they relate to City staff.
Willdan staff will respect and implement the decisions of City management, as directed, and the laws made within the City as they relate to the aforementioned departmental tasks only and municipal law as voted upon by City elected officials. Willdan staff and management does not approve leave requests for City employees or make direct decisions regarding City staff personnel matters. Willdan management staff will manage the department as directed but will not be making direct staffing decisions for the City public employees.
TYPE OF PROJECT INITIAL PLAN CHECK SUBSEQUENT
PLAN CHECKS
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Exhibit “B”-1
2339056v4.doc
EXHIBIT “B”
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
None
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Exhibit “C”- 1
2339056v4.doc
EXHIBIT “C”
COMPENSATION SCHEDULE
I. Consultant shall perform the following tasks (“Tasks”) at the following rates
SERVICE DESCRIPTION FEE SCHEDULE
1. Plan Review (hourly) $130/hr
2. Building Official Services $135/hr
3. Landscape Design Plan Review $130/hr
4. Inspection Services $ 90/hr
5. CASp Services $115/hr
6. Permit Technician Services $ 65/hr
II. Within the budgeted amounts for each Task, and with the approval of the Contract Officer, funds may be shifted from one Task sub-budget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.8.
III. The City will compensate Consultant for the services performed upon submission of a valid invoice. Each invoice is to include:
A. Line items for all materials and equipment properly charged to the services.
B. Line items for all other approved reimbursable expenses claimed, with supporting documentation.
C. Line items for all approved sub-consultant labor, supplies, equipment, materials, and travel properly charged to the services.
The total compensation for services shall not exceed $1,470,960.00 as provided in Section 2.1 of this Agreement.
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Expedited plan review will be billed at 1.35x of our rate. Over-time inspections will be billed at 1.5x of our rate.
SERVICE PROVIDED HOURLY RATE
Building Official Services $145
Plan Review Services $130
Inspection Services $ 95
Permit Technician Services $ 70
Effective date July 1, 2024
251
252
253
254
255
256
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: Lincoln Bogard, Administrative Services Director MEETING DATE: March 11, 2025
SUBJECT: Consideration of City Council Resolutions 2025-35, 2025-36, and Successor Agency Resolution 2025-01, Approving Updated
Accountholders for all City Bank Depository Accounts
RECOMMENDATION:
Adopt City Council Resolutions 2025-35, 2025-36, and Successor Agency Resolution 2025-01.
BACKGROUND:
In order to change signers on the City's Local Agency Investment Fund (LAIF) depository accounts, the City must adopt a resolution for each LAIF account naming the new authorized individuals. These accounts have no checks and the authorized individuals to transact on these accounts will be City Treasurer, City Manager, and Administrative Services Director (Finance Director).
Staff also requests that Council consider a resolution to change the signers on physical checks to Mayor as the drawer and the City Treasurer as the countersigner.
JUSTIFICATION:
Requirement of Government Code Section 16429.1 to change authorized individuals of the City/Successor Agency with LAIF.
Requirement of Government Code Section 37203 to establish an alternative method of drawing warrants and checks.
FISCAL IMPACT:
None
ALTERNATIVES:
Do not adopt resolutions and provide alternative direction to staff.
BUDGETED?:
No
CONTRACT/AGREEMENT:
No
ATTACHMENTS:
1. Resolution 2025-35, Signing Authority.docx
257
2. Resolution 2025-36, Signing Authority.docx
3. Resolution 2025-01 SA, Signing Authority.docx
258
Resolution 2025-35
RESOLUTION 2025-35
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,
AUTHORIZING INVESTMENT OF MONIES IN THE LOCAL AGENCY INVESTMENT FUND WHEREAS, The Local Agency Investment Fund is established in the State Treasury under Government Code section 16429.1 et. seq. for the deposit of money of a local agency for purposes of investment by the State Treasurer; and
WHEREAS, the City Council hereby finds that the deposit and withdrawal of money in the Local Agency Investment Fund in accordance with Government Code section 16429.1 et. seq. for the purpose of investment as provided therein is in the best interests of the City.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning hereby authorizes the deposit and withdrawal of City monies in the Local Agency Investment Fund in the State Treasury in accordance with Government Code section 16429.1 et. seq. for the purpose of investment as provided therein.
BE IT FURTHER RESOLVED, as follows:
SECTION 1. The following City officers holding the titles specified hereinbelow or their successors in office are each hereby authorized to order the deposit or withdrawal of monies in the Local Agency Investment Fund and may execute and deliver any and all documents necessary or advisable in order to effectuate the purposes of this resolution and the transactions contemplated hereby:
Gladys W. Savage – City Treasurer
Robert Fisher – Acting City Manager
Lincoln Bogard – Administrative Services Director (Finance Director) SECTION 2. This resolution shall remain in full force and effect until rescinded by City Council by resolution and a copy of the resolution rescinding this resolution is filed with the State Treasurer’s Office.
SECTION 3. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions.
PASSED, APPROVED AND ADOPTED this 11th day of March, 2025.
Sheri Flynn, Mayor
City of Banning
259
Resolution 2025-35
ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:
John Pinkney, Interim City Attorney
Slovak, Baron, Empey, Murphy & Pinkney,
LLP
260
Resolution 2025-35
CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2025-35, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 11th day of March, 2025 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
261
Resolution 2025-36
RESOLUTION 2025-36
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,
APPROVING AN ALTERNATIVE METHOD OF DRAWING WARRANTS AND CHECKS WHEREAS, Government Code Section 37203 states, “Upon allowing a demand or approving a register of audited demands, the mayor shall draw a warrant or warrants upon the city treasurer specifying the purpose for which drawn and the fund from which payment is to be made. The city clerk shall countersign the warrant. The legislative body, by ordinance or resolution, may prescribe an alternative method of drawing warrants and checks”; and WHEREAS, the City would like the drawer of the warrant or check to remain the Mayor and to change the countersigner to the City Treasurer.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
SECTION 1. The City Council authorizes that all checks issued henceforth by the City shall be signed by the Mayor and countersigned by the City Treasurer.
SECTION 2. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions.
PASSED, APPROVED AND ADOPTED this 11th day of March, 2025.
Sheri Flynn, Mayor
City of Banning
ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:
John Pinkney, Interim City Attorney
Slovak, Baron, Empey, Murphy & Pinkney,
LLP
262
Resolution 2025-36
CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2025-36, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 11th day of March, 2025 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
263
Resolution 2025-XX SA
RESOLUTION 2025-01 SA
A RESOLUTION OF THE SUCCESSOR AGENCY OF THE CITY OF BANNING, CALIFORNIA,
AUTHORIZING INVESTMENT OF MONIES IN THE LOCAL AGENCY INVESTMENT FUND WHEREAS, The Local Agency Investment Fund is established in the State Treasury under Government Code section 16429.1 et. seq. for the deposit of money of a local agency for purposes of investment by the State Treasurer; and
WHEREAS, the Successor Agency to the Community Redevelopment Agency of the City of Banning hereby finds that the deposit and withdrawal of money in the Local Agency Investment Fund in accordance with Government Code section 16429.1 et. seq. for the purpose of investment as provided therein is in the best interests of the Agency.
NOW, THEREFORE, BE IT RESOLVED by the Successor Agency hereby authorizes the deposit and withdrawal of City monies in the Local Agency Investment Fund in the State Treasury in accordance with Government Code section 16429.1 et. seq. for the purpose of investment as provided therein.
BE IT FURTHER RESOLVED, as follows:
SECTION 1. The following Agency officers holding the titles specified hereinbelow or their successors in office are each hereby authorized to order the deposit or withdrawal of monies in the Local Agency Investment Fund and may execute and deliver any and all documents necessary or advisable in order to effectuate the purposes of this resolution and the transactions contemplated hereby:
Gladys W. Savage – City Treasurer
Robert Fisher – Acting City Manager
Lincoln Bogard – Administrative Services Director (Finance Director) SECTION 2. This resolution shall remain in full force and effect until rescinded by the Successor Agency by resolution and a copy of the resolution rescinding this resolution is filed with the State Treasurer’s Office.
SECTION 3. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions.
PASSED, APPROVED AND ADOPTED this 11th day of March, 2025.
Sheri Flynn, Chairperson
Banning Successor Agency
264
Resolution 2025-XX SA
ATTEST:
Caroline Patton, Secretary
Banning Successor Agency
APPROVED AS TO FORM:
John Pinkney, Interim Agency Counsel
Slovak, Baron, Empey, Murphy & Pinkney,
LLP
265
Resolution 2025-XX SA
CERTIFICATION:
I, Caroline Patton, Secretary of the Banning Successor Agency, do hereby certify that the foregoing Resolution 2025-01 SA, was duly adopted by the Successor Agency of the City of Banning, California, at a regular meeting thereof held on the 11th day of March, 2025 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Secretary
Banning Successor Agency
266
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: Lincoln Bogard, Administrative Services Director MEETING DATE: March 11, 2025
SUBJECT: Consideration of Resolution 2025-37, Approving Modifications to the Warrant Approval Process
RECOMMENDATION:
Adopt Resolution 2025-37.
BACKGROUND:
The City of Banning has adopted and authorized procurement under the Municipal Code 3.24 and Purchasing Policy B-30. These policies prescribe the guidelines for procurement of all materials, equipment, supplies, and services necessary for operations of the City to include spending authorizations and invoice processing. There are multilevel approvals by City Council and City Staff throughout the procurement process to include approvals of budget (including CIP project approval), funding, contracting, project updates, notice of completion, and expenditures. Currently, expenditures are presented on monthly warrant reports to the Finance and Budget Committee for review and at City Council meetings for approval.
At the February 2025 Budget and Finance Committee Meeting, the Treasurer requested a modification to process of approving warrants to add an additional approval step. The attached Operational and Project Approval Overview document is a high level overview of the process and denotes the added approval steps in RED font. In brief, the Committee has recommended that a review of the invoice listing to be paid is completed prior to the weekly check run. These steps would be as follows:
Prior to issuing the weekly checks for payment of invoices:
The Finance Department will submit a report of invoices to be paid (EAL report) to City Clerk, Treasurer and Mayor for review and approval.
The weekly EAL report shall be submitted for review by Wednesday and approval shall be completed on the next workday (Thursday) no later than 1pm.
If this review is scheduled to occur on a recognized City Holiday, the submittal and due date will be adjusted by the Administrative Services Director.
Approval of invoices shall not be withheld for items previously approved by City Council or as authorized within the guidelines of the B-30 Purchasing Policy.
If approvals are not received by the deadline stated above, the checks will be processed under the normal schedule to avoid delay in payment(s) and potential late fees/penalties.
Further warrant report inquiries may be made at the next Budget and Finance Committee meeting.
Internal information including reports and source documents requested and received by the Mayor, Treasurer and /or Clerk during the Warrant (EAL) approval process shall not be transmitted nor shared with the public. Completed and compiled informational reports shall be presented at the Budget and Finance Committee or City Council Meeting(s). 267
If any information requests are received, Elected Officials may direct the inquirer to the City of Banning website to complete a public record request.
JUSTIFICATION:
This is a request of the Budget and Finance Committee.
FISCAL IMPACT:
None other than additional staff time in warrant preparation process.
ALTERNATIVES:
Do not adopt resolution and provide alternative direction to staff.
BUDGETED?:
No
CONTRACT/AGREEMENT:
No
ATTACHMENTS:
1. Resolution 2025-37, Warrant Process.docx
2. Modification to the Warrant process Option 1.docx
268
Resolution 2025-37
RESOLUTION 2025-37
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BANNING, CALIFORNIA,
APPROVING MODIFICATION OF THE WARRANT APPROVAL PROCESS
WHEREAS, the City of Banning has adopted and authorized procurement under the Municipal Code 3.24 and Purchasing Policy B-30. These policies prescribe the guidelines for procurement of all materials, equipment, supplies, and services necessary for operations of the City to include spending authorizations and invoice processing; and WHEREAS, the City approves expenditures through warrant reports by review of the Finance and Budget Committee and approval by City Council; and WHEREAS, the City would like to modify the process of approving warrants to add an additional approval step to the process.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Banning as follows:
SECTION 1. The City Council approves the modification to the warrant approval process as outlined in Exhibit A of this Resolution.
SECTION 2. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original resolutions.
PASSED, APPROVED AND ADOPTED this 11th day of March, 2025.
Sheri Flynn, Mayor
City of Banning
ATTEST:
Caroline Patton, Administrative City Clerk
City of Banning
APPROVED AS TO FORM:
John Pinkney, Interim City Attorney
Slovak, Baron, Empey, Murphy & Pinkney,
LLP
269
Resolution 2025-37
CERTIFICATION:
I, Caroline Patton, Administrative City Clerk of the City of Banning, California, do hereby certify that the foregoing Resolution 2025-37, was duly adopted by the City Council of the City of Banning, California, at a regular meeting thereof held on the 11th day of March, 2025 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Caroline Patton, Administrative City Clerk
City of Banning, California
270
Resolution 2025-37
EXHIBIT A
Prior to issuing the weekly checks for payment of invoices:
The City Finance Department will submit a report of invoices to be paid (EAL report) to City Clerk, Treasurer and Mayor for review and approval.
The weekly EAL report shall be submitted for review by Wednesday and approval shall be completed on the next workday (Thursday) no later than 1pm. o If this review is scheduled to occur on a recognized City Holiday, the submittal and due date will be adjusted by the City’s Administrative Services Director. Approval of invoices shall not be withheld for items previously approved by City Council or as authorized within the guidelines of the B-30 Purchasing Policy. If approvals are not received by the deadline stated above, the checks will be processed under the normal schedule to avoid delay in payment(s) and potential late fees/penalties. Further warrant report inquiries may be made at the next Budget and Finance Committee meeting.
Internal information including reports and source documents requested and received by the Mayor, Treasurer and /or Clerk during the Warrant (EAL) approval process shall not be transmitted nor shared with the public. Completed and compiled informational reports shall be presented at the Budget and Finance Committee or City Council Meeting(s). o If any information requests are received, Elected Officials may direct the inquirer to the City of Banning website to complete a public record request. 271
OPERATIONAL AND/OR PROJECT APPROVAL OVERVIEW (HIGH LEVEL) Procurement Policies
Approved and adopted by City Council:
Municipal Code 3.24
Procurement Policies (B-30)
Establish funding
Approved by City Council
Annual budget
Mid-year budget adjustments
Supplemental Budget Appropriations
CIP project list/funding
Grants acceptance
Establishing loans
Project Development/Good/Services
Specified Need – Master Plan (5-year plan\ typically)
Approved by City Council
Projects/Goods – need identified by Department:
Develop scope (includes deliverables)
Define project risk
Funding review by Department
Budget review
Scope review
Establish timeline
Bidding Process by Purchasing
Draft bid developed
Approval bid (see note (1))
Bid posted (see note (2))
Advertising
Q&A
Pre bid meetings
Receive bids/bonds
Review
Bid Compliance
References
Best Value or Lowest Price
Issuing PO/Contracts for goods/services
PO/Contract
272
Purchase requisition submitted by requesting department (see note (4)) Approval workflow:
Manager
Director
City Manager
CPO
Vendor compliance:
Vendor information, licensing, registration(s), insurance, bonding (etc.) Authorization of Contract
Approved by City Council
o Over $25,000 – Resolution (typically)
o $25,000 & Under or CUPCCAA projects, approves as receive and file
Purchase Order (PO) issued (capped at approved amount) Work Performed/ Product received
Vendor Invoice processing
Invoice received and reviewed
Department review/verification/approval of services provided/goods received
Due dates are Net 30 (typically)
Payment voucher prepared
Purchase Order/Contract (see note (4) and (5))
AP matches invoice to PO
Receipts/backup attached
Direct pay voucher (see note (4))
B-30 exceptions (utility, fuel, purchase of utility water and power, postage, debt service/loans (see note (5))
Budget – automatic verification
Invoicing-
Invoices are entered as batches and grouped into a weekly EAL report by Accounts Payable department (see note (6)). Finance verifies all approvals are complete, invoices and backup are attached to payment vouchers and are posted to the weekly EAL report.
Finance will submit the EAL weekly report to City Clerk, Treasurer and Mayor for review and approval.
The weekly EAL report shall be submitted for review by Wednesday and approval shall be completed on the
next workday (Thursday) no later than 1pm.
o If this review is scheduled to occur on a
recognized City Holiday, the submittal and due
date will be adjusted by the Administrative
Services Director.
Approval of invoices shall not be withheld for items
previously approved by City Council or as authorized
within the guidelines of the B-30 Purchasing Policy.
273
If approvals are not received by the deadline stated
above, the checks will be processed under the normal
schedule to avoid delay in payment(s) and potential
late fees/penalties.
Further warrant report inquiries may be made at the
next Budget and Finance Committee meeting.
Internal information including reports and source
documents requested and received by the Mayor,
Treasurer and /or Clerk during the Warrant (EAL)
approval process shall not be transmitted nor shared
with the public. Completed and compiled informational
reports shall be presented at the Budget and Finance
Committee or City Council Meeting(s).
o If any information requests are received,
Elected Officials may direct the inquirer to the
City of Banning website to complete a public
record request.
Issue checks
Process checks for payment
Final invoice verification and distribution
The EAL weekly reports are compiled into a monthly Warrant list.
The Warrant list submitted to City Clerk via Agenda to the regular Budget & Finance Committee and City Council
Meetings
Warrant list reviewed and approved by Budget & Finance Committee
Warrant list reviewed and approved by City Council
Projects – Final approval - Notice of Completion and Notice of Acceptance Approved by City Council
NOC - triggers retention payments within 35 days
NOA - triggers bond reductions
Transparency
Warrant list may be found on Agenda and Agenda Supporting documents for both the Budget & Finance Committee and City Council meetings. Budget and expenditures may be reviewed on OpenGov transparency portal via the City of Banning website.
Public record requests via City of Banning website.
NOTES:
274
(1) Typically, departments approval complete bid, then CPO. (2) Communication during bids - Any communications, whether written or verbal, with any City Councilmember or City staff with regards to project details and scope prior to award of a contract by City Council is strictly prohibited and the bidder shall be disqualified from consideration.
(3) If applicable, not all PO’s have contracts associated (4) Follows the B-30 authorizations/signatures:
Manager, CPO - up to $5,000
Manager, Director, and CPO - up to $10,000
Manager, Director, City Manager, and CPO - up to $25,000 Manager, Director, City Manager, and CPO, City Council approval - over $25,000 CUPCCAA only: Manager, Director, City Manager, and CPO up to $220,000 (5) CPO signature not needed as previously approved via Purchase Order approval flow
(6) Loans/Debt service have been previously approved by City Council (7) Invoices are entered continuously into batches and subsequently grouped into an EAL weekly report and Warrant report.
275
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: Art Vela, Public Works Director
MEETING DATE: March 11, 2025
SUBJECT: Discussion of Fiscal Year 2026 Community Project Funding Request RECOMMENDATION:
Discuss Fiscal Year 2026 Community Project Funding request and provide staff direction on which project to submit for potential funding.
BACKGROUND:
Congressional Members are allowed to direct spending for small projects in the annual appropriation bills for local projects they believe will benefit their communities, bypassing the traditional competitive federal grant progress. However, there are several restrictions for this Community Project Funding (CPF). CPF is also referred to as House or Congressionally Directed Spending (CDS) in the Senate. The typical amount of money available for projects varies from between $500,000 to $3,000,000, but more commonly around $1,000,000.
For example, in Fiscal Year 2022, $1,250,000 was secured for the City of Banning's Wastewater Treatment and Groundwater Protection Project (attached). This project was supported by Rep. Ruiz, Sen. Feinstein, and Sen. Padilla and was funded through the Environmental Protection Agency, in the “State and Tribal Assistance Grant-Clean Water State Revolving Fund” account.
The CPF/CDS requests are submitted by members of Congress to the Appropriations Committee usually in early to mid March. Projects are then vetted for eligibility, feasibility, and community impact by the Member offices and the Appropriations Committee. Each member of Congress has a limited amount of funding they can direct to projects in their district or state. House Members are also only allowed to request a total of fifteen (15) projects each year.
Appropriations bills are usually released sometime in the late spring or early summer, however, funds are not available until nine months to a year after the Appropriation bill becomes law, so usually at least a full year after the project has been submitted to Congress.
A few key points of CPF/CDS funding included: there is guarantee that funding is awarded (awards are at the discretion of congress); projects must align with federal agency guidelines and committee priorities; and eligible recipients are usually state/local governments, non-profits and public institutions and no direct funding is given top for-profit entities.
Project Selection Process
Congressional Submission: The entity submits a formal request to its congressional representatives in the House and Senate. Each member of Congress has their own process and criteria for considering 276
requests. Letters of support from state and other local entities are required. Once a project is submitted to Congress, it is helpful to meet with the Congressman, Senators or their staff to discuss the details of the project and how it will benefit the greater community and even the state.
Congressional Review & Appropriations Process: Submitted projects are reviewed by the Appropriations Committee. Approved projects are included in federal funding bills.
Final Approval & Fund Allocation: If awarded, funds are disbursed through the appropriate federal agency.
Types of Projects Eligible for Funding
Eligibility is subject to congressional guidelines and varies by federal agency. Categories include:
1. Infrastructure & Transportation (roads, bridges, public transit improvements)
2. Water & Sewer Systems (stormwater projects, drinking water upgrades, wastewater treatment)
3. Public Safety & Emergency Services (fire stations, police equipment, emergency response facilities)
4. Economic Development & Workforce Training
5. Affordable Housing & Community Development
6. Environmental & Sustainability Initiatives
7. Healthcare & Public Health Programs
Types of Projects Likely to Receive Support
While eligibility is broad, successful projects typically have:
1. Strong Community Impact: Projects that address urgent needs and benefit large populations.
2. Project Readiness: “Shovel-ready” projects with clear timelines, feasibility studies, and matching funds (if required).
3. Broad Stakeholder Support: Endorsements from local, regional, and state entities.
4. Demonstrated Need & Return on Investment: Evidence-based justification for funding.
5. Projects with bipartisan appeal and strong advocacy from congressional representatives often have higher chances of receiving funding.
Projects that have been identified by staff that would be good candidates for this year's round of CPF/CDS funding include:
Pedestrian Bridge across the San Gorgonio Avenue At-Grade Railroad Crossing (Planning/Design Phase)
Wastewater Treatment Plant Upgrade and Recycled Water Project (Construction Phase) Hargrave Street Grade Separation Project (Planning/Design Phase) Chromium 6 Pilot Study Equipment (Purchase of Equipment) JUSTIFICATION:
CPF/CDS funding is a great opportunity for the City to receive federal funds without going through the grant application development process which typically involves competitive grant funding programs.
It is important to select a project that has the greatest chance of receiving congressional support.
FISCAL IMPACT:
CPF/CDS funding, if awarded, will often times provide funding for projects that are currently unfunded or free up local funds so that they may be used on other projects. The amount awarded will vary.
ALTERNATIVES:
City Council could elect to direct staff to not participate in this year's CPF/CDS funding opportunity. 277
BUDGETED?:
No
CONTRACT/AGREEMENT:
No
ATTACHMENTS:
1. FY22 Omnibus Interior - CPF Banning.pdf
278
DEPARTMENT OF THE INTERIOR, ENVIRONMENT. AND RELATED AGENCIES -Continued [Community Pro1ect Fundmg/Congressmnally Directed Spending] Requestor(s}
Agency Account State Proiect Reop1ent .and Name Amount Onginat1on House Senate Environmental Protection Agency STAG~Clean Water SRF CA The City of Adelanto for a wastewater 800.000 Obemolte H treatment plant tertiary treatment capability pro1ect.
Environmental Protection Agency STAG-Clean Water SRF CA The City of Twentynine Palms for a waste- 663,224 Obernolte Feinstein. Padilla H water treatment facility phase II project.
Environmental Protection Agency STAG-Clean Water SRf CA The San Bernardino County Department of 1,932.000 Obernolte H Public Works for the Desert Knolls Wash
Phase Ill construction channel proiect.
Environmental Protection Agency STAG-Clean Waler SRF CA City of Banning for Wastewater Treatment 1,250,000 Rutz Feinstem. Padilla HIS and Groundwater Protectmn Pro1ect
Environmental Protection Agency STAG-Clean Water SRF CA The Crty of Yucaipa for the Wilson Ill 1.000,000 Dbernolte Femstein. Padilla HIS basin proJect
Environmental Protectron Agency STAG-Clean Water SRF CA Western Municipal Water District for West- 3.000,000 Feinstein, Padilla s em Water Recycling Facility PFAS Treatment and Prevention Proiect Environmental Protection Agency STAG-Clean Water SRF co City of Craig for a Drinking Water and/or 1,080.000 Bennet, H1ckenlooper s Clean Water Pro1ect for Waler and
Wastewater Emergency Generators
Environmental Protection Agency STAG-Clean Water SRF co Town of Rico for Central Sewer System 2,500,000 Bennet, Hickenlooper s Pro1ect
Environmental Protection Agency STAG-Clean Water SRF CT Save the Sound for Dam Removal Pro1ect 475,000 Hrmes H Environmental Protection Agency SfAG-Clean Water SRF CT Town of Newtown for Non-Impervious Park- 480,000 Hayes H ing in Newtown
279
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: John Pinkney, City Attorney
Robert Fisher, City Manager
MEETING DATE: March 11, 2025
SUBJECT: Presentation by Michael Busch of Urban Futures Inc regarding City and Utility finances and steps needed to stabilize general fund and Electric Utility fund
RECOMMENDATION:
1) Direct staff to come back within 30 days with a timeline of actions necessary to stabilize the City’s Electric Utility; and
2) Authorize the City Manager to negotiate with Urban Futures Inc on the development of a 10-Year General Fund Budget Forecast Model to include budget stabilization recommendations and options for City Council consideration.
BACKGROUND:
On December 20, 2025, the City engaged the law firm of Slovak, Baron, Empey, Murphy & Pinkney LLP (SBEMP) as interim City Attorney. Upon engagement, SBEMP recommended an independent financial consultant to review and evaluate the City’s financial position and management practices as part of SBEMP’s standard due diligence. SBEMP has worked with Urban Futures Inc. (UFI), a California based financial and municipal advisory firm and past Banning advisor to assess the City and Utility financial conditions.
JUSTIFICATION:
Throughout local government, management systems that operate in the realm of financial management are fundamental to economic, social and infrastructural growth and the development of local government entities. This is particularly relevant to a sustainable City of Banning. These systems include costing, budgeting, accounting, financial information, procurement, cash control, asset management and internal controls. Such systems, often referred to as fiscal sustainability policies, best practices and programs, have been developed to form part of the financial management system of controls in all well-run California public agencies. Financial management systems are a crucial element in the integrated governance systems which are meant to function as the foundation of effective, efficient and accountable local government in Banning and elsewhere.
In well run municipalities financial management systems are the foundation of good governance, which is the very opposite of corruption, graft, fraud, poor management of resources, nepotism, incompetency and general negligence of the basic principles of management and leadership. This implies that high quality financial management systems are the requirement of good governance. In this relationship, good governance is the basis on which municipalities exercise their authority to provide for the sustainable delivery of services which citizens expect, such as the building and maintenance of roads, public safety and essential utilities. Solid financial management and good governance guarantee a municipality’s 280
financial viability. Thus, the performance of a municipality depends on good governance to ensure that sustainability can become a reality.
Financial viability is measured in terms of a municipality’s capacity to meet its financial obligations in a sustainable manner. Mismanagement of resources is, in most cases, the result of weak human resources and financial management and the lack of a clear mission and leadership in public institutions.
Admittedly, municipalities are expected to meet the challenges of an ever-changing financial environment to comply with the best practices common in the private sector.
The basic tool to manage municipal financial management is a municipal budget. It is imperative that municipal stakeholders, such as municipal officials and interest groups should have a sound basic knowledge of the budget and its challenges. The budget of any municipality, as developed by executive staff and presented to the City Council, must be transparent. Furthermore, it is the responsibility of the executive management of each municipality to employ practical financial measures to ensure that the municipal council approves sustainable strategies such as adopting credible budgets. A sustainable budget is a fiscal strategy which can continue to exist for the foreseeable future without any substantial change or spending to prevent a substantial deterioration in fiscal position. Furthermore, a sustainable budget would prevent sharp changes in rates, such as the recent rate adjustments for Electric Utility services of 13.9% for two consecutive years, while no adjustments were sought since 2013.
The General Financial State of Banning
The most accurate reflection of the financial situation in the City of Banning is in the auditor’s annual reports, which is a very substantial barometer of the financial situation. UFI was recently provided with a summary of audited financial data indicating the confronting situation facing the city's administrative and political leadership. Data for the most recent fiscal year (2023-24) is unavailable, but we believe the trends may have improved but continue to reflect continuing challenges.
The audit reports covering FY 2018 through FY 2022 identified a growing trend of expenditures outpacing revenues in key funds including the General, Electric Utility and Internal Service Funds.
Concurrent with citywide audit findings, the City’s outstanding Series 2015 Electric Utility Refunding Bonds have been subject to downgrade on multiple occasions from its initial underlying rating of “A-“to its current rating of “BB-”, junk status. In its rating disclosures, Standard & Poor’s concluded the following:
· The three-notch downgrade reflects our view of the utility’s lack of effective risk management and oversight as well as its failure to implement proper financial controls, as evidenced by its negative unrestricted cash balances for two successive years
· The negative outlook reflects our view of the uncertainty surrounding whether rate increases, and sufficient cost controls will adequately raise the utility's unrestricted cash position to produce creditsupportive coverage and as well as if financial audits will be produced on a timely basis, · The downgrade reflects our view of the utility's continued weak financial position, demonstrated by insufficient debt service coverage (DSC), a negative $4.9 million cash balance as of October 2024, and continued interfund borrowing with an uncertain repayment timeframe · The negative outlook reflects our view that while management's fiscal 2025 budget projects improved DSC that meets the rate covenant and includes a recently approved rate increase (effective Nov. 1, 2024), the utility's ability to achieve and sustain this improvement remains uncertain given its historical performance. Furthermore, we believe the implementation of back-to-back 13.9% rate increases within fiscal years 2025 and 2026 will further pressure affordability and could impede progress on accounts receivable.
These factual findings reveal the need to address internal controls, a key element of financial management necessary to achieve sustainability. It is evident that to improve in these respects, the City must continue efforts in the pursuit of strengthening internal controls in the following three areas:
· firstly, leadership, which is expected to set the correct tone for effective governance; · secondly, financial; and
· thirdly, performance management reports, which must be subjected to management checks and 281
balances to confirm credibility of information and governance, by strengthening financial teams and internal audit functions that will complement a 10-year Fiscal Sustainability Forecast Model.
Specific Findings
City staff provided a Citywide 5-Year Annual Cash Flow Analysis to UFI and subsequently verified against other financial documents for accuracy reflecting the following preliminary observations and assessments:
· General Fund has sustained a period of annual cash losses growing from $1.13 million in FY 19-20 to a peak of $4.485 million in FY 20-21 as well as an annual cash loss of over $3 million in FY 21-22 · General Fund cash liquidity has declined from $12.5M in FY 19 to $3M in FY 22 impacting the City’s actual cash reserves in the General Fund
· Electric Utility Fund is experiencing a significant financial reduction in cash liquidity and fund balance. In FY 19, the Fund had a balance of positive $19M and now reflects a balance of negative ($9M); the most significant loss recently occurred between FY 22 and FY 23 of $13.4M; and · Internal Service Funds are reflecting negative fund balances. Negative fund balances are often a reflection of budget pressures on operating funds with limited resources to pay true internal service costs and/or deficient budget preparation and management resulting from inadequate and timely budget adjustments based on actual cost for service.
In Addition to the above, we believe the following actions may have contributed to the financial condition that have impacted the City’s overall fiscal health:
· Personnel costs related to substantial unanticipated public safety overtime, staffing increases in the Community Development Department, recent increases for compensation adjustments all funded by the General Fund, resulting in costs exceeding approved budget assumptions and available annual revenues;
· Internal fund borrowing from the General Fund, and other Business Activity Funds, to support negative cash balances in several funds including Electric Utility and Internal Service Funds; and The above findings are not one-time expenses and suggest the City has been operating with a structural deficit. Aligning annual revenues with expenditures through a balanced budget is necessary for the City to meet a basic level of financial and operational sustainability.
Recommended Next Steps
Fiscal stability is more than a math exercise focusing on the numbers to ensure revenues and expenditures balance and net to zero. This process is focused beyond an annual budget cycle. It requires careful modeling of projected city revenues and expenses to develop a forecast that allows the City to understand its financial capacity and challenges in continuing the existing level of municipal services. Financial sustainability takes the forecasting process further by providing immediate and clear information on the financial impact of various economic scenarios, strategic initiatives, or operational decisions.
A select number of California cities are beginning to use the practice of long-term financial forecasting to understand the true costs of their obligations, to address structural deficits and to prepare for inevitable future economic downturns or uncertainties. Long-term forecasts are especially useful in helping elected officials, labor groups, commissions and members of the public understand how proposals will affect the City’s fiscal solvency. Armed with a robust forecast, city leaders can identify critical unmet needs, develop options to close funding gaps and create plans that achieve the City’s strategic objectives because they are aligned to a solid and continuously updated financial forecast and plan.
To proactively address the City’s critical fiscal challenges and uncertain financial future, UFI is strongly recommending the City prepare a five-year forecast for its Electric Utility and a ten-year financial forecast for the General Fund. Additionally, both models should be accompanied by a set of action items as recommendations for City Council consideration necessary to stabilize the two funds. 282
Electric Utility
We understand a rate study has been initiated for the Electric Utility, and this may serve as its forecast model. We strongly encourage the study timeline to be accelerated and to focus on stabilizing the utility and immediate capital needs as a priority addressing the rate requirements necessary over the next five years to do so. Additionally, we believe the refunding of the Electric Utility’s outstanding Series 2015 bonds can play an important role in the stabilization process. However, to realize full benefit the rate model extending out five years should precede the refinancing.
General Fund
Developing a robust, usable and customizable financial forecast requires significant time, understanding and expertise which the City does not currently possess. UFI recommends the following approach to the development of a 10-year forecast.
Model development includes the following four tasks:
1. Develop a Baseline Financial Forecast Model for the General Fund to provide the City with the analytic capacity and understanding of the City’s present and future financial condition, and through adjusting assumptions, inputs and variables, enable the City to conduct rigorous fiscal analysis and provide immediate feedback on the short-and long-term financial impact of strategic choices and operational decisions. The model will be in Microsoft Office Excel® and can be expanded, refined and updated to address the City’s changing needs, objectives and goals.
2. Analyze and model the City’s various General Fund revenue streams, including assessing revenue restructurings or new revenue streams that enhance sustainability or reduce risk.
3. Analyze and model General Fund expenditure categories, cost drivers and program service delivery structures to identify opportunities for sustained cost reduction, containment and recovery.
4. Deliver a final report to the City Council with recommendations on the following: (a) restructuring atrisk or under-optimized revenue streams, (b) changes to financial structures or procedures that will enhance current revenue streams, (c) opportunities for new revenue streams to improve the City’s fiscal stability, (d) actions to mitigate the impact of key cost drivers and achieve sustained savings, (e) restructuring program service delivery models, and (f) practices to realize efficiencies, improve cost recovery and lessen long-term expenses.
The proposed work will help the City of Banning to create a solid fiscal foundation and capacity to begin successfully addressing the structural issues within the Electric Utility and General Fund. The City of Banning cannot expect to remain solvent or successfully achieve its goals if financial considerations are left to the annual budget process or the fiscal analysis of individual projects or programs. The City Council’s strategic initiatives, budgets and operational decision-making must be continually informed by and aligned with a long-term financial plan and fiscal structure. The proposed work will begin moving us down this critical path.
FISCAL IMPACT:
There are no fiscal impacts on the recommendations.
ALTERNATIVES:
1) Approve the recommended actions
2) Provide staff with alterative actions
3) Request additional information to be presented later BUDGETED?:
No
CONTRACT/AGREEMENT:
No
283