Mayor
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ATTEST:
Carol ine Patton , Admini
City of Banning
APPROVED AS TO FORM:
Serita R. Young, City Attorney
Richards , Watson & Gershon
Resolution 2024- 92
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CERTIFICATION:
I, Caroline Patton , Administrative City Clerk of the City of Banning , California , do hereby certify that the foregoing Resolution 2024- 92 , was duly adopted by the City Council of the City of Banning, California , at a regular meeting thereof held on the 11th day of June 2024 by the following vote , to wit:
AYES : Flynn , Happe , Minjares , Sanchez , and Wallace .
NOES :
ABSENT:
ABSTAIN :
Resolution 2024- 92
City of Bann ing , California
650
Resolution 2024- 92
EXHIBIT A
Agreement with Matrix Consulting
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AGREEMENT FOR PROFESSIONAL SERVICES ( C01032) FOR THE
COMPREHENSIVE USER FEE AND IMPACT FEE STUDY BY AND BETWEEN CITY
OF BANNING AND MATRIX CONSULTING GROUP, LTD
THIS AGREEMENT FOR PROFESSIONAL SERVICES ( herein " Agreement") is made and entered into this day: _________ , (" Effective Date") by and between the CITY OF BANNING, a California municipal corporation (" City") and Matrix Consulting Group, LTD, a California Corporation (" Consultant"). City and Consultant are sometimes hereinafter individually referred to as " Party" and hereinafter collectively referred to as the " Parties."
RECITALS
A. City has sought by issuance of a Request for Proposals ( RFP # 23- 056) for the performance of the services for the Comprehensive User Fee and Impact Fee Study and as further defined and described particularly in Article 1 of this Agreement.
B. Consultant, following submission of a proposal for the perfonnance of the services defined and described paiiicularly in Article 1 of this Agreement, was selected by City to perform those services.
C. The Parties desire to formalize the selection ofConsultant for performance of those services defined and described particularly in Article 1 ofthis 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 tenns 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 perfonning 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 1-
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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, Band 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 Tenn ( defined in Section 3.4) to furnish continuous protection to the work product, and the equipment, materials, papers, 2-
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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 ofup to ten percent ( 10%) of the Contract Sum, or $ 25, 000, whichever is less; or in the Schedule of Performance ofup to one hundred eighty ( 180) days maybe 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. 3-
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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:
Title
Khushboo Ingle Vice President
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Consultant Representative were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing Consultant Representative shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the Services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the Consultant Representative. For purposes of this Agreement, the foregoing Consultant Representative may not be replaced nor may their responsibilities be substantially reduced or reassigned by Consultant without the express written approval of City. It shall be Consultant' s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the Services, and Consultant shall refer any decisions which must be made by City to the Contract Officer. 2) Consultant' s Personnel: Consultant has, or will secure at its own expense, all personnel required to perform the Services required under this Agreement. All of the Services required under this Agreement shall be performed by Consultant or under its supervision, and all personnel engaged in the Services shall be qualified to perform such Services. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant' s staff and sub- contractors, if any, assigned to perform the Services required under this Agreement. 4-
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Consultant shall notify City of all changes in Consultant' s staff and sub- contractors, if any, assigned to perfonn 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 tenn 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 perfom1ed by Consultant or under its superv1s10n. 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 ofConsultant, 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 5-
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Agreement shall be void. No approved transfer shall release Consultant or any surety of Consultant of any liability hereunder without the express consent of City.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, as full compensation for Services satisfactorily rendered, City shall pay Consultant at the hourly rates set forth in the " Schedule of Compensation" attached hereto as Exhibit C and incorporated herein by this reference. In no event shall Consultant be paid more than Eighty- Eight Thousand One Hundred Forty Dollars 88, 140. 00) ( the " Contract Sum"). The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by City. Coordination of the performance of the Services with City is a critical component of the Services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending those meetings.
2.2 Method of Compensation.
The method of compensation may include: ( i) a lump sum payment upon completion of the Services, ( ii) payment in accordance with specified tasks or the percentage of completion of the Services, ( iii) payment for time and materials based upon Consultant' s rates as specified in the Schedule of Compensation, provided that time estimates are provided for the performance of sub tasks, but not exceeding the Contract Sum or ( iv) such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses.
City shall only reimburse Consultant for those actual and necessary expenses expressly set forth in Exhibit C. Reimbursable expenses may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual sub- contractor expenses of an approved sub- contractor pursuant to Section 1.14, and only if specified in the Schedule of Compensation.
2.4 Unauthorized Services and Expenses.
City will not pay for any Services or reimburse for any expenses incurred which are not specified in the Scope of Services, unless authorized in writing as set forth in Section 1.8 of this Agreement. City shall make payment for such authorized additional Services and expenses in accordance with Article 2 of this Agreement.
2.5 Invoices.
Each month Consultant shall furnish to City an original invoice for all Services performed and expenses incurred during the preceding month. Each such invoice shall contain all of the information set forth in Section III of Exhibit C to this Agreement. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the 6-
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Agreement. Consultant shall not invoice City for any duplicate Services performed by more than one person.
City shall independently review each invoice submitted by Consultant to determine whether the Services performed and expenses incurred are in compliance with the provisions of this Agreement. City will use its best efforts to cause Consultant to be paid within thirty ( 30) days of receipt of Consultant' s correct and undisputed invoice, except as to any charges for Services performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 6.3. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City of any invoice provided by Consultant shall not constitute waiver of any rights or remedies provided herein or any applicable law.
2.6 Waiver.
Payment to Consultant for Services performed pursuant to this Agreement shall not be deemed to waive any defects in Services performed by Consultant.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement; provided, however, that the foregoing shall not be construed to limit or deprive a Party of the benefits of any grace or use period allowed in this Agreement.
3.2 Schedule of Performance.
Consultant shall commence the Services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all Services within the time period( s) established in the " Schedule of Performance" attached hereto as Exhibit D and incorporated herein by this reference.
3.3 Force Majeure.
The time period( s) specified in the Schedule of Performance for performance of the Services rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Consultant. Such unforeseeable consequences include, but are not restricted to, acts of God or public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/ or acts of any governmental agency, including City, if Consultant shall within ten ( 10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the Services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified, subject to the provisions of Section 1.8. The Contract Officer' s determination ( or the City Council' s determination, in the event the period of enforced delay exceeds the period specified in Section
1.8) shall be final and conclusive upon the Parties to this Agreement. In no event shall Consultant 7-
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be entitled to recover damages against City for any delay in the performance of this Agreement, however caused; Consultant' s sole remedy shall be the extension of the Agreement pursuant to this Section.
3.4 Term.
The Term of this Agreement shall be from the Effective Date through June 30, 2025, unless sooner terminated as provided in Article 6 of this Agreement or extended as provided in Sections
1.8 and 3.3 of this Agreement. Maximum term and any subsequent amendment or modification shall not exceed five ( 5) years.
ARTICLE 4. INSURANCE AND INDEMNIFICATION
4.1 Minimum Scope and Limits oflnsurance.
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 m1mmum 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. IfConsultant does not use any owned, non- owned or hired vehicles in the performance of Services under this Agreement, Consultant shall obtain a non- owned auto endorsement to the Commercial General Liability policy.
C. Workers' Compensation Insurance as required by the State of California and Employer' s Liability Insurance with a minimum limit of $1,000, 000. 00 per accident for bodily injury or disease. If Consultant has no employees while performing Services under this Agreement, workers' compensation policy is not required; however, Consultant shall execute a declaration that it has no employees. ·
D. Professional Liability/ Errors and Omissions Insurance with minimum limits of $1,000, 000. 00 per claim and in the aggregate.
4.2 Acceptability of Insurers.
The insurance policies required under this Article shall be issued by an insurer admitted to write insurance in the State of California with a rating ofA: Vil or better in the latest 8-
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edition ofthe 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.
IfConsultant 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 tenninate 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. 9-
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4.9 Evidence of Insurance.
Prior to the perfonnance of Services under this Agreement, Consultant shall furnish the City Clerk with a certificate or certificates of insurance and all original endorsements evidencing and effecting the coverages required under this Article. The endorsements are subject to City' s approval. Consultant may provide complete, certified copies of all required insurance policies to City. Consultant shall maintain current endorsements on file with the City Clerk.
Consultant shall provide proof to the City Clerk that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Consultant shall furnish such proof at least two ( 2) weeks prior to the expiration of the coverages.
4.10 Indemnity Requirements not Limiting.
Procurement of insurance by Consultant shall not be construed as a limitation of Consultant' s liability or as full performance of Consultant' s duty to indemnify City under this Agreement.
4.11 Sub- contractor Insurance Requirements.
Consultant shall require each of its sub- contractors that perform Services under this Agreement to maintain insurance coverage that meets all of the requirements of this Article.
4.12 Indemnification, Hold Harmless. and Duty to Defend.
A. Indemnification of City.
1) To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials ( collectively " Indemnitees"), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages ( collectively " Liabilities"), at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant, its officers, agents, servants, employees, sub- contractors, materialmen, consultants or their officers, agents, servants or employees ( or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees' active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties. Consultant shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of the Indemnitees' choice, and shall pay all costs and expenses, including all attorneys' fees and experts' costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith.
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2) Consultant shall pay all required taxes on amounts paid to Consultant under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant shall fully comply with the workers' compensation law regarding Consultant and Consultant' s employees. Consultant shall indemnify and hold City harmless from any failure of Consultant to comply with applicable workers' compensation laws. City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant' s failure to promptly pay to City any reimbursement or indemnification arising under this subparagraph A.2. 3) Consultant shall obtain executed indemnity agreements with provisions identical to those in this Article from each and every sub- contractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement.
If Consultant fails to obtain such indemnity obligations, Consultant shall be fully responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Liabilities at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant' s sub- contractor, its officers, agents, servants, employees, sub- contractors, materialmen, consultants or their officers, agents, servants or employees ( or any entity or individual that Consultant' s sub- contractor shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees' active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties.
B. Workers' Compensation Acts not Limiting. Consultant' s indemnifications and obligations under this Article, or any other provision of this Agreement, shall not be limited by the provisions of any workers' compensation act or similar act. Consultant expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents, employees and volunteers.
C. Insurance Requirements not Limiting. City does not, and shall not, waive any rights that it may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The indemnities in this Article shall apply regardless of whether or not any insurance policies are determined to be applicable to the Liabilities, tax, assessment, penalty or interest asserted against City.
D. Survival of Terms. Consultant' s indemnifications and obligations under this Article shall survive the expiration or termination of this Agreement.
ARTICLE 5. RECORDS, REPORTS, AND RELEASE OF INFORMATION 5 .1 Service Records.
Consultant shall keep, and require sub- contractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and Services performed hereunder ( the " Service Records"), as shall be necessary to perform the Services required by this Agreement and enable the Contract Officer 11-
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to evaluate the performance of such Services. Any and all such Service Records shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such Service Records at all times during normal business hours of City, including the right to inspect, copy, audit and make copies and transcripts from such Service Records. Such Service Records shall be maintained for a period of three ( 3) years following completion of the Services hereunder, and City shall have access to such Service Records in the event any audit is required. In the event of dissolution of Consultant' s business, custody of the Service Records may be given to City, and access shall be provided by Consultant' s successor in interest (" Consultant' s Successor"). If custody of the Service Records is given to Consultant' s Successor, Consultant shall give written notice to City of the transfer of the Service Records to Consultant' s Successor. The notice shall include contact information address and telephone number) for Consultant' s Successor, and access shall be provided to City by Consultant' s Successor.
5.2 Reports.
Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that City is greatly concerned about the cost of Services to be perfonned 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 perfonnance 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 ofuncompleted Consultant Documents without specific written authorization by Consultant will be at City' s sole risk and without liability to Consultant, and Consultant' s guarantee and warranties shall not extend to such use or assignment. Consultant may retain copies of such Consultant Documents for its own use. Consultant shall have an unrestricted right to use the concepts embodied therein. All sub- contractors shall provide for assignment to City of all Consultant Documents prepared by them; and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom.
5.4 Confidentiality and Release of Information.
A. All information gained or work product produced by Consultant in perfonnance of this Agreement shall be considered confidential, unless such infonnation is in the 12-
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public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer.
B. Consultant, its officers, employees, agents or sub- contractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the Services performed under this Agreement. Response to a subpoena or court order shall not be considered " voluntary" provided Consultant gives City notice of such court order or subpoena.
C. If Consultant, or any officer, employee, agent or sub- contractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorneys' fees, caused by or incurred as a result of Consultant' s conduct.
D. Consultant shall promptly notify City should Consultant, its officers, employees; agents or sub- contractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any Party regarding this Agreement and the Services performed thereunder. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite the response.
ARTICLE 6. ENFORCEMENT OF AGREEMENT AND TERMINATION
6.1 California Law.
This Agreement, and any dispute arising from the relationship between the Parties to this Agreement, shall be interpreted, construed and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California,, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event oflitigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
6.2 Disputes: Default.
A. In the event that City determines Consultant is in default under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any Services performed after the date of default. In addition to the provisions of Section 4.8, and the right to terminate pursuant to Section 6. 7, if the City Manager determines that Consultant is in default in the performance of any of the terms or conditions of this Agreement, City may serve Consultant with written notice of the default. Consultant shall have ten ( 10) calendar days after service upon it of the notice in which to cure the default by rendering a satisfactory performance. 13-
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In the event that Consultant fails to cure its default within such period of time, City may, notwithstanding any other provision of this Agreement, terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.
B. In the event of termination pursuant to this Section, City may take over the Services and prosecute the same to completion by contract or otherwise, and Consultant shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the compensation herein stipulated ( provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to Consultant for the purpose of set- off or partial payment of the amounts owed City as provided in Section 6.3.
6.3 Retention of Funds.
Consultant hereby authorizes City to deduct from any amount payable to Consultant whether or not arising out of this Agreement): ( i) any payment amount ofwhich 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 tenn, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any Services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non- defaulting Party on any default shall impair such right or remedy or be construed as a waiver.
Any waiver by either Party of any default must be in writing, and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
6.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party 14-
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of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Paiiy.
6.6 Legal Action.
In addition to any other rights or remedies, either Paiiy 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 perfonnance 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 tem1ination 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 tennination, 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 tennination without cause pursuant to this Section, the tem1inating Party need not provide the non- tenninating Party with the opportunity to cure pursuant to Section 6.2.
6.8 Attorneys' Fees.
In any litigation or other proceeding by which a Party seeks to enforce its rights under this Agreement ( whether in contract, tort or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing Party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys' fees. Attorneys' fees shall include attorney' s fees on any appeal, and in addition the Party entitled to attorneys' fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 15-
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ARTICLE 7. CITY OFFICERS AND EMPLOYEES: NON- DISCRIMINATION 7 .1 Non- liability of City Officers and Employees.
No officer or employee of City shall be personally liable to Consultant, or Consultant' s Successor, in the event of any default or breach by City or for any amount which may become due to Consultant or Consultant' s Successor, or for breach of any obligation of the terms of this Agreement.
7 .2 Conflict of Interest.·
Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant' s performance of Services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or sub- contractor without the express written consent of the Contract Officer. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the perfonnance 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 perfo1m 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 perfonnance of this Agreement.
7.3 Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, or ancestry in the performance of this Agreement.
Consultant shall take affirmative action to insure that applicants are employed, and that employees 16-
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arc 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:
Ifto City
With a courtesy copy to:
Ifto Consultant:
Attn: Lincoln Bogard
Deputy City Manager
City of Banning
99 East Ramsey Street
Banning, California 92220
Email: lbogard@banningca. gov
Serita R. Young, City Attorney
Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, California 90071
Email: SYoung@rwglaw. com
Attn: Richard Brady
President
Matrix Consulting Group, LTD
1650 S. Amphlett Blvd., Suite 213
San Mateo, CA 94402
Email: rbrady@matrixcg. net
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8.2 Interpretation.
The tem1s 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 wananty 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 jmisdiction, 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, docU111ents and other requested information as is reasonably available for Consultant' s proper performance of the Services required under this Agreement.
B. Consultant' s Cooperation. In the event any claim or action is brought against City relating to Consultant' s performance of Services rendered under this Agreement, Consultant shall render any reasonable assistance that City requires. 18-
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8.7 No Third Party Beneficiaries Intended.
This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.
8.8 Final Payment Acceptance Constitutes Release.
The acceptance by Consultant of the final payment made under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Consultant for anything done, furnished or relating to Consultant' s Services. Acceptance of payment shall be any negotiation of City' s check or the failure to make a written extra compensation claim within ten ( 10) calendar days of the receipt of that check. However, approval or payment by City shall not constitute, nor be deemed, a release of the responsibility and liability of Consultant, its employees, sub- contractors and agents for the accuracy and competency of the information provided and/ or Services performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the Services prepared by Consultant, its employees, sub- contractors and agents.
8.9 Non- Appropriation of Funds.
Payments to be made to Consultant by City for Services performed within the current fiscal year which are within the current fiscal budget ~ nd 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 pennissive; ( b) " or" is not exclusive; and ( c) " includes" or including" are not limiting.
8.12 Business Days.
Business Days" refers to days that the Banning City Hall is open for business.
8.13 Corporate Authority.
The persons executing this Agreement on behalf of the Parties hereto warrant that i): such Party is duly organized and existing, ( ii) they are duly authorized to execute and deliver 19-
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this Agreement on behalf of that Party, ( iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and ( iv) the entering into this Agreement does not violate any provision of any other Agreement to which that Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
8.14 Electronic Signatures.
Each Party may adopt as its signature an electronic identification consisting of a symbol or code that is affixed to or contained in each document transmitted by such Party electronic signature"). The Parties hereto herby agree that electronic signatures are acceptable, shall have the same force and effect under the law as original wet signatures, and shall be sufficient to verify that the Parties have executed this Agreement and such other documents transmitted by the Parties.
SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first hereinabove written.
CITY OF BANNING
Douglas Schulze,
City Manager
ATTEST:
Caroline Patton
Administrative City Clerk
APPROVED AS TO FORM:
Richards, Watson & Gershon
Serita R. Young
City Attorney
Date
Date
Date
CONSULTANT
NAME: Date
TITLE:
NAME: Date
TITLE:
Tax ID No.
Address:
City Council Approval: _____ _
NOTE: PROOF OF AUTHORITY TO BIND CONTRACTING PARTY REQUIRED. APPROPRIATE
ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF
INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT' S BUSINESS ENTITY.
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EXHIBIT " A"
SCOPE OF SERVICES
I. Consultant will perform the following Services in connection with providing services for the Comprehensive User Fee and Impact Fee Study prepared in connection therewith:
II. As part of the Services, Consultant will prepare and deliver the following tangible work products and services to City:
Exhibit " A"-1
673
EXHIBIT "A"
Proposal to Conduct a Comprehensive User Fee and Impact Fee Study A Statement of Understanding and Approach
Banning, CA
This section of our proposal demonstrates our understanding of the services requested, and describes our general approach, proposed task plan, and schedule.
Approach
The Matrix Consulting Group works with various clients ranging from small towns to major metropolitan cities in over 45 states across the U.S. and Canada. Every project is unique but is managed according to the following essential project approach:
Understanding City-specific financial data .
Working collaboratively wtih City staff through meetings and workshops .
Applying industry standards, best management practices, and technical expertise for cost allocation and fee application .
Calculating defensible results with buy-in from internal and external stakeholders .
Providing recommendations and transferring knowledge and work products to City staff for successful implementation .
The approach chosen for completing this project allows us to deliberately review and categorize the allowability of indirect costs as well as determine the best and most tangible metrics for allocation.
Quality Control
We believe very strongly in the science of our craft, especially as it relates to cost of service studies. As such, our firm utilizes quality control techniques which include:
Project Management: Ensuring our projects meet the needs and timelines of our clients are accomplished through the following :
The project manager and lead analyst develop general and project specific data collection plans and interview guides .
Matrix Consulting Group
Exhibit "A" - 2
674
EXHIBIT "A"
Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA All project work activities are defined in advance and tied to each project team member, deliverables, the schedule, and the budget.
We have frequent client review meetings to discuss the quality and direction of the project through interim deliverables and draft documents .
Quantitative Results: Financial analyses are used to develop budgets and projections, and often are subject to public oversight and review. For this reason, our firm ensures data determined quality control through the following :
Expenditure data entered into cost models are tied to budget documents .
Workload is used to cross-check true cost associated with services.
These project management approaches have resulted in all our projects being delivered at a high level of quality, on time and on budget.
Tasks
The City Banning is requesting two scopes of work: 1) Comprehensive User Fee Study; and 2) Development Impact Fee Study. These scopes of work can be conducted concurrently as there are economies of scale that can be achieved. The following subsections outline the tasks broken out by project-wide tasks, comprehensive user fee study tasks, and developrnent impact fee tasks .
Project- wide Tasks
There are three key tasks that would span both scopes and then the tasks would vary based upon each scope of work . The following tasks would be conducted for all scopes of work .
Task 1 Data Collection
Prior to any initial meetings, the Matrix Consulting Group will provide the City with a list of initial data requirements for the study. This will allow our project team to review this information thoroughly in preparation for initial discussions with staff. A common list of data collection items include:
Budgeted Expenditures per Fund and Department.
Staffing per Fund and Department.
List of current fees to be included in the scope .
List of all current city owned infrastructure and equipment Matrix Consulting Group
Exhibit "A" - 3
2 675
EXHIBIT " A"
Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banni ng, CA Copy of City' s most recent General Plan, Land Use and Housing Elements .
Copy of any previous studies / analyses.
List of comparable jurisdictions for the comparative analysis.
The provision of these items will allow our project team to familiarize themselves with the City' s structure.
Deliverable List of basic data requirements for the Study Meetings None
Estimated City Support 2-4 hours for staff to collect and distribute information Task2 Study Objectives and Project Schedule
Once the data has been collected, the project team will then meet with designated City staff to discuss any issues identified by the project team, as well as to clarify any existing issues or concerns held by the City regarding the current user fee study and impact fee study methodology. Discussions will include :
Review of the City 's specific needs and critical issues surrounding development and implementation of the user fee and development impact fee study.
Opportunities for improvement and restructuring of previous fee analyses.
Discussion of cost recovery goals and targets, as well as infrastructure needs for the City.
At the culmination of the meeting, the project team and the designated City staff will leave with a greater understanding of the overall approach and methodology that will be taken by the project team to conduct the comprehensive fee and impact fee study for the City.
Meetings Kickoff
Estimated City Support 1 hour for all involved City Departments Task3 Implementation and Future Support
The Matrix Consulting Group is committed to helping our clients develop accurate and defensible cost- of- service methodologies and ensure that they can implement the results of these studies appropriately. Our project team will work with City staff to facilitate an understanding of the results and how to incorporate those results into budget and policy documents, informational handouts, and other City materials .
Matrix Consulting Group 3
Exhibit " A" - 4
676
EXHIBIT "A"
Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Our Client support continues even after a final report has been issued . We understand that questions can arise about the development of a study well after project completion and are committed to working with our clients to answer any questions about methodologies and applications of results. This support is provided to our clients at no extra cost.
Comprehensive User Fee Study Tasks
The City of Banning is requesting a comprehensive fee analysis . The purpose of these studies is to ensure compliance with existing state rules and regulations as well as future pending state rules and regulations . The following tasks provide an overview of the level of detail utilized to conduct the comprehensive fee study.
Task 1 Develop a Schedule of Current and Potential Fees for Service The project team will work with staff to review their current fee schedules in line-item detail. This meeting is critical in ensuring staff can incorporate any updates or changes to the fee study based on code, regulation, staffing, process, or technological changes.
The focus of this meeting will be the following:
Renaming fees: Rewording or renaming fees to identify services more clearly.
Eliminating fees: Removing any outdated services or fees.
Adding new fees: Capturing any new services or breaking out existing fee categories to identify all the services being provided by City staff more clearly and identify potential fees for services that the City would like to provide.
Recategorization of fees: Collapsing or expanding multiple fee ranges to better capture the services provided. For example, eliminate lot ranges or acreages if those do not impact the review amount, but add categories based upon the approval level (i.e ., Commission vs. Director level).
It is important to note that this meeting occurs first to ensure that any significant proposed structural changes are captured prior to collecting time estimate information or developing draft fee results . However, there is the ability to make future adjustments.
I • • • • • •
Estimated City Support • • . • .• t .•.
Matrix Consulting Group 4
Exhibit "A" - 5
677
EXHIBIT " A"
Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Task2 Conduct Time Data Gathering Workshops
Banning, CA
The project team will conduct workshops to gather time estimates for each service included in the study, interview key personnel from each department, and analyze the various activities being performed . Below is an example of the steps involved in permit processing and the time associated with each step .
Intake
Permit Tech:
15 mins
Routing
Permit Tech:
10 min s
Initial Review
Plan Checker
1 hour
Final Review
Plan Checker:
30 mins
Issue Permit
Permit Tech:
15 mins
Basic process steps in application/ permit processing will be documented and provided in detail for each department/ division represented in the study. The project team will try to minimize the impact on staff by incorporating any baseline assumptions from prior city studies.
The project team will conduct multiple time estimate workshop( s) for each department/ division included in the study, and the workshop results will be Excel-based workbook( s) that staff can review. Staff will be provided time for any edits or comments on time estimate information .
I • • • ••
Estimated City Support 1-4 hours per involved Department Task3 Develop Fully Burdened Hourly Rates
Based on the City's staffing and budget information, the project team will calculate fully burdened hourly rates, including direct and indirect costs. The following points highlight the cost components and factors included in fully burdened rates:
Direct costs: This component accounts for salary and benefits associated with each employee or position and reflects City staffing and salary reports.
Indirect costs - Departmental: This component accounts for administrative and management support provided to line-level staff, as well as operational services and supplies that are used in the execution of job duties. This cost component is developed through interviews with staff and an analysis of budgets.
Matrix Consulting Group 5
Exhibit " A" - 6
678
EXHIBIT "A"
Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Indirect costs - Citywide: This component accounts for citywide support such as Finance, HR, and Attorney support provided by other departments. If an overhead rate or cost is unavailable, one will be calculated to apply to different services .
Once the cost components have been documented and developed, the project team will review MOUs and talk with departmental staff to determine appropriate productive hour calculations. These reduced available hours will ensure that fully burdened hourly rates account for leave accruals (holiday, vacation, and sick) and any meetings or training .
I :. . . . . . . .
Estimated City Support 1 hour for Finance
Task4 Perform Total Cost Analysis
The Matrix Consulting Group's costing model is built based on the City's operations, budget details, and intended uses for the results. This method is a customized approach specific to each jurisdiction for cost analysis of user fee services . It is a "bottom-up" approach , the most defensible methodology for calculating user fees. The methodology incorporates the time estimate information and fully burdened hourly rate information.
The following graphic shows the cost calculation:
Fully
Burdened
Rate
This costing method uses time and annual activity level data to establish the cost of providing services on both a unit and an annual level. Once the time spent for a fee activity is determined for each individual or position, the team uses its fee and rate software to apply the fully burdened hourly rates calculated in the previous task .
Resulting costs are presented on a unit and annual level and are compared to the existing fee schedule and revenue reports. The City will obtain detailed information regarding cost recovery surpluses and deficits on both a detailed (per unit) and global (annualized) level, as well as an understanding of cost components for each service.
Deliverable Per Unit and Annual Fee Study Results
I • • ... •
Estimated City Support • • • • •••
Matrix Consulting Group 6
Exhibit "A" - 7
679
EXHIBIT "A"
Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banni ng, CA Task 5 Conduct a Market Rate Survey
We will work with the City to identify jurisdictions in Riverside and San Bernardino counties to conduct a comparative survey of fees. This comparative survey activity will include:
Developing fee scenarios for each department included in the study to be compared to other jurisdictions.
Graphing the results of the fee analysis for easy visual comparison purposes. 8,000.00
7,000.00
6,000.00
5,000 .00
4,000.00
3,000 .00
2 ,000 .00
1,000.00
0 .00
Single Family Home - New Permit and Plan Check Fees
iii
0 0
0 a.
E
0 u
N "'
a. a.
E E
0 0
u
a.
E
0 Permit
Plan Check
a.
E
0 Collecting contextual information such as population size, budget, staffing, last time fee study was done, and last fee schedule update.
As market surveys do not provide adequate or objective information about the relationship between a jurisdiction's costs and fees, these steps ensure we provide the City with the most information possible.
Deliverable
Estimated City Support
I • • • • •
N,;:me · . . .•
Task 6 Review/ Revise Fee Study Results
Because the analysis of service fees is based on estimates and information provided by City staff, all participants must be comfortable with our methodology and the data they have provided. Once the department agrees that the analysis reflects the reasonable costs of providing services, City management can review the results. At this point, the Matrix Consulting Group 7
Exhibit "A" - 8
680
EXHIBIT "A"
Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA project team will provide City staff with Recommended Fee Workbooks . The Recommended Fee Workbooks will provide departments / divisions with the fee study results in MS Excel. The following shows an example of the workbook:
Current - Per Unit Results
Surplus/( Deficit) Cost Recovery
Fee Title Current Fee Total Cost Per Unit %
Lot Line Adjustment $ 900 $ 1,557 ($ 657) 58%
Temporary Use Permit $ 40 $ 325 ($ 285) 12%
Recommended Fee
Change to Recommended
Recommended Recommended % Change to Fee Cost
Fee Title Fee Fee Recommended Fee Recovery%
Lot Line Adjustment $ 1,200 $ 300 33% 77%
Temporary Use Permit $ 100 $ 60 150% 31%
Recommended Fee Annual
Potential
Revenue at Revenue at Change in
Fee Title Workload Current Fee Recommended Fee Revenue
Lot Line Adjustment 4 $ 3,600 $ 4,800 $ 1,200
Temporary Use Permit 60 $ 2,400 $ 6,000 $ 3,600 --
TOTAL $ 6,000 $ 10, 800 $ 4,800
As the graphic indicates, the recommended fee workbook allows the City to input information into the Recommended Fee column and see its impacts, such as the dollar increase, percentage increase, and what percentage of their current costs they will recover. Additionally, the workbook allows the City to calculate potential increases or declines in revenue because of the recommended fees .
I . . • Recommended Fee Workbooks
Estimated City Support
Task 7 Prepare a Draft User Fee Study Report
Upon conclusion of the fee study, we will prepare a detailed report summarizing the results of each of the previous work tasks described above . This report will include:
A concise executive summary discussing the study, methodology, results, and narrative describing the services included in the study.
A section on proposed modifications to the current fee schedule, including removal or addition of new fees for service.
Matrix Consulting Group 8
Exhibit "A" - 9
681
EXHIBIT " A"
Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA A section on per unit and annual results for each fee is included in the analysis, as well as where workload data is available.
A comparative survey section outlining key fees, their comparison to other local jurisdictions, and contextual information regarding budget, staffing, and when they last conducted fee studies .
The draft report will be provided to City staff for comments.
Task8 Finalize Fee Study Report
Any edits or revisions to the draft user fee study report will be incorporated into the finalized fee study report. This finalized fee study report will include all elements of the draft fee study report and any additional cost recovery considerations and policy considerations for the council' s review.
None . . ·
I[,. .U • , _. 4' ' I I • ~ 1 t • •
Task9 Master Fee Schedule
Once the final user fee study report is approved, the project team will develop a master fee schedule, consolidating all fees in a singular location . The master fee schedule will include a numbering system, the department name, the fee title, the unit of application, the current fee, the total cost per unit calculated through the study, the difference, the cost recovery, the relevant rule/ regulation that applies to the fee type, the staff recommended fee, and staff recommended cost recovery level. This attachment is extremely helpful as part of the staff report provided to the Board of Supervisors upon adoption .
I
Estimated City Supp_Q..rt. .. :
Task 1O I Present the Final Report to Key Stakeholders
The presentation of results to City officials and/ or stakeholders is critical to the success of the overall engagement. Because the product from the study is often controversial, the objective of this final step is to present a succinct summary that provides decision Matrix Consulting Group 9
Exhibit " A" - 10
682
EXHIBIT " A"
Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA makers with key information. The Matrix Consulting Group will attend and present the Study at up to three ( 3) Committee or Council meetings, including any fee adoption hearings . We believe that these number of meetings is typically sufficient to ensure that there is buy-in from the stakeholders.
Even though the User Fee and Impact fee study are being conducted concurrently, we would recommend separating the stakeholder presentations to ensure appropriate understanding .
Deliverable Presentation
Meetings 1-3 City Committee/ Commission / Council Meetings Estimated City Support 1-2 hours for Presentation Review Task 11 I Excel- Based Models and Training
The City of Banning has requested an excel-based model for updating the user fee study.
Our Excel-based models would provide the ability for the City to adapt and continuously update results from year to year as the organization changes.
After the final drafts are approved, at the discretion of City staff, the project team would meet with and train designated City employees on use of the models. Staff will be provided with training, which walks through the model tabs, includes instructions tab in the model, and discusses specific customizations made for the City.
Deliverable Study Model, Backup Documentation, User Guide Meetings Model Training
Estimated City Support 2 hours for Training Attendance
Development Impact Fee Study Tasks
The City of Banning is also interested in conducting a Development Impact Fee Study.
These fee studies must be in compliance with the Mitigation Fee Act ( AB1600 and AB602), which require that there is an appropriate nexus to.establish the impact fees. The following tasks provide an overview of our process for conducting the nexus analysis .
Task 1 Review of Impact Fees
The purpose of this task is to develop an initial understanding of the City's proposed impact fee structure, projected growth levels, and any future developments that will impact that population growth. During this phase, the project team will document the following :
Name of Proposed Impact Fee
Matrix Consulting Group 10
Exhibit "A" - 11
683
EXHIBIT " A"
Proposal to Conduct a Comprehensive User Fee and Impa ct Fee Study Municipal Ordinance/ Resolution authorizing the fee
Capital or Master Plan to support the fee
Purpose of the fee
Banning, CA
This documentation will be critical to ensuring that any updates to the Impact fee program comply with AB1600 and AB602 . This documentation will serve as the basis for the project team's discussion with city staff on next steps for evaluating impact fees .
Meetings Impact Fee Current State Discussion
Estimated City Support 1-2 hours for Meeting Attendance Task2 Projected Population Growth and Facility Needs
The key component of any impact fee analysis is determining the proportionality and nexus that exists based upon projected development. During this task, the project team will conduct research based upon regional forecasted growth as well as internal City staff Planning) expected growth to determine future population projection .
Based upon that future population projection, the project team would review the City's current infrastructure inventory and determine if there is any need for additional equipment or new facilities. The project team will also meet with staff to identify any master plans in existence at the time of the creation / development of impact fees . This will require meeting with relevant City department staff to review all equipment and identifying the quantity and cost estimates for these items .
Impact fees cannot be used to enhance existing service levels, only maintain current service levels . During this task, the project team will ensure that for defensibility purposes any new facilities or equipment identified are directly correlated to population increases .
Meetings 1-2 Meetings for Infrastructure Needs
Estimated City Support 1-3 hours for Population Projection Discussions Task3 Draft Impact Fee Analysis
The largest proportion of the impact fee analysis is the growth and facilities projection.
Once that task is completed and a nexus can be established that is based upon City adopted master plans the project team will work on calculating the draft impact fees.
There are two components to the calculation of impact fees: the total cost of facilities and their cost basis . The following points describe these components:
Matrix Consulting Group 11
Exhibit " A" - 12
684
EXHIBIT " A"
Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Total Cost of the Facilities/ Infrastructure: There are three different subcomponents that comprise the maximum cost of the facilities that can be used for the calculation of impact fees: cost of facilities/ infrastructure, administrative cost, and offsetting credits/ revenues.
Cost Basis: There are several different cost bases that can be used for the calculation of impact fees, such as population, housing units, workload, etc .
Based on data provided by the City, as well as appropriate and preferred cost bases, and State law, the project team will calculate the draft Impact Fees. The project team will meet with City staff to review these draft impact fees based upon land use type.
Deliverable Draft lmP- act F.ee
Meetings 1-2 Draft Meeting Results
Estimated City Support 1-2 hours per Impact Fee Department Task4 Comparative Impact Fee Survey
The project team will conduct a comparison of the full cost of Impact Fees and the recommended Impact Fee to other jurisdictions in Riverside and San Bernardino counties .
This comparison will be conducted based upon construction project types, ( i.e ., new single- family home, new hotel, new multi- family, etc .). The use of construction scenarios provides staff with a comparison of the impact of the fee upon future development.
Deliverable Impact Fee Comparative Survey Results
Meetings Fee Comparison Meeting with City Department( s) Estimated City Support 1-2 hours for City Departments
Tasks Draft Impact Fee Report
The draft impact fee results and comparative survey will be incorporated into a draft impact fee report. The draft impact fee report will have the following components :
Executive Summary: Providing a brief overview of the background of the scope, the overall methodology, the results of the analysis, and the implementation guidelines ( including future fee increases).
Legal Framework: This will outline the current legal requirements for impact fees, and how the proposed impact fee will meet these requirements.
Growth Projections: This section of the report outlines the growth projections.
Impact Fee Analysis: This section demonstrates the calculation used to derive the full cost of the impact fees, as well as the recommended fees by the City.
Matrix Consulting Group 12
Exhibit " A" - 13
685
EXHIBIT " A"
Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Comparative Survey: This section outlines how the City's calculated and recommended fees compare to other jurisdictions.
These components will result in a consolidated draft report that will be distributed City staff for review. It will be required to be reviewed by all the different departments to ensure that assumptions are presented accurately.
Deliverable Draft Impact Fee Report
Meetings None
Estimated City Support 1-2 hours for Report Review
Task6 Final Report
Based upon City staff comments, the project team will revise the Final Report to ensure all comments and concerns are captured. This final report will serve as the basis for presentations to internal and external stakeholders .
Deliverable Final Impact Fee Report
Meetings None
Estimated City Support None
Task 7 Present the Final Report to Key Stakeholders
The presentation of results to City officials and/ or stakeholders is critical to the success of the overall engagement. For this particular component of the study, we would recommend involving any local development community as well to ensure that there is buy-in from external stakeholders. We are committed to presenting the findings of the analysis at up to three ( 3) City Committee / Council meetings as well as to the development community. This number of meetings we believe is typically sufficient to ensure implementation of impact fees.
Deliverable Presentation
Meetings 1-3 City Committee/ Council / External Stakeholder Meetings Estimated City Support 1-2 hours for Presentation Review Task 8 Delivery of Impact Fee Backup Documentation
Unlike other cost of services analyses, the components of an impact fee should not be updated annually, as it is primarily based upon population projections and timeframe s associated with replacement of existing facility and equipment inventory and / or acquiring new facilities or inventory.
Matrix Consulting Group 13
Exhibit " A" - 14
686
EXHIBIT " A"
Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA When discussing the draft impact fee results with City staff, the project team will share the initial Excel workbook showing calculations, and at the conclusion of the study, the project team will provide the City with the backup workbook showing all calculations. In this workbook, the project team would also set up a template allowing the City to update its impact fees based upon a cost factor. The industry standard for updating impact fees is based upon the construction cost index ( CCI). This standard is used as the costs for impact fees are based upon infrastructure rather than labor or material costs .
Deliverable Final Backup Documentation ·
Meetings None
Estimated City Support None
Project Schedule
Studies of this nature typically take approximately 6 months ( 24 weeks) to complete. The following table outlines our proposed project schedule on a task-by-task basis .
Task
Project Wide Tasks
Data Collection
Study Objectives
User Fee Study Tasks
Current & Potential Fees
Data Workshops
Fully Burdened Hourly Rates
Total Cost Analysis
Comparative Survey
Review/ Revise Results
Draft Fee Study Report
Prepare Final Report
Develop Master Fee Schedule
Development Impact Fee Study
Review of Impact Fees
Projected Growth and Needs
Draft Fees Analysis
Comparative Survey
Draft Report
Final report
1 2
Month
3 4 5 6
The 6-month timeline is for completing the analysis, the implementation options and presentations as well as any excel -based models and training and backup documentation Matrix Consulting Group 14
Exhibit " A" - 15
687
EXHIBIT "A"
Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA would be provided after 6 months . If the City were to commence this project in the summer, the analysis would be completed by the end of the calendar year, with the first quarter of 2025 being used for presentations and implementation.
Alternatively, we understand that the City is in the midst of completing several master plans, as such we are open to a longer timeline, wherein the User Fee Study is completed first, and then the Development Impact Fee study is started . In that case, each study will roughly take approximately 4-6 months to complete individually.
City Staff Support
We envision a close working relationsh ip with the City throughout the project. We place a strong emphasis on transparency and robust communication. Meticulously reviewing all information and metrics is our standard practice, with a primary focus on verifying inputs before arriving at any final decisions . While we will do our best to minimize impacts on City staff, for example by taking responsibility for data gathering and cleanup, we are committed to reviewing and verifying the outcomes of the data . This commitment to precision, establishes a foundation of data integrity and trust. This approach ensures that our joint efforts consistently yield effective results and outcomes that will benefit the City.
To ensure these effective outcomes we will set up bi -weekly (every 2 weeks) updates with the City. These updates can be in the form of a brief meeting or a summary status email which outlines the work completed to date, the current tasks being performed, and any future tasks. These communications allow us to keep the City informed of any hurdles in completing the project, as well as allow staff to provide input on any key findings from the fee study analysis.
Industry Innovations and Emerging Trends
Matrix Consulting Group prides itself on providing its clients with real world solutions that incorporate new ideas , with a focus on ease of implementation . Our staff are encouraged and financially supported to participate in industry conferences and events, learning about emerging challenges and proposed solutions. Our staff also have access to vast industry networks, engaging in discussions about new solutions to old problems, as well as well future issues expected to arise .
While innovation is encouraged, our project teams are mindful of client needs and limitations. While we will explore all solution options, ultimately, our recommendations will be guided by what's best for our client, not the newest trend.
The City has requested a comprehensive impact fee analysis . Depending upon the City 's projected growth and master plans there may not be a nexus. The Matrix Consulting Group does offer an alternative task plan for impact fee studies that is broken into phases .
Matrix Consulting Group 15
Exhibit "A" - 16
688
EXHIBIT " A"
Proposal to Conduct a Comprehensive User Fee and Impact Fee Study Banning, CA Phase 1 would evaluate whether there is an appropriate nexus based upon growth and infrastructure need . If there is a nexus, then Phase 2 would be initiated, which is the calculation of the maximum justifiable impact fees . This can be a cost -effective approach for clients who may be unsure of future growth, as if there is no nexus then no Phase 2 is initiated and there are no charges for that component of the nexus fee analysis . Due to the City's anticipated growth, we haven't proposed this task plan, but if the City were interested, we would be open to presenting this alternative task plan to allow for potential cost-savings for the City.
City-Owned Facilities or Properties
The Matrix Consulting Group does not propose to use any City owned facilities to provide these services.
Matrix Consulting Group 16
Exhibit "A" - 17
689
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.
Exhibit " A"- 18
690
EXHIBIT " B"
SPECIAL REQUIREMENTS
None
Exhibit " B"- 1
691
EXHIBIT " C"
SCHEDULE OF COMPENSATION
I. Consultant shall perform the following tasks (" Tasks") at the following rates stated in Exhibit A and Exhibit C-1
II. Within the budgeted amounts for each Task, and with the approval of the Contract Officer, funds may be shifted from one Task sub- budget to another so long as the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.8.
III. City will compensate Consultant for the Services performed upon submission of a valid invoice. Each invoice is to include:
A. Line items for all personnel describing the Services performed, the number of hours worked, and the hourly rate.
B. Line items for all materials and equipment properly charged to the Services.
C. Line items for all other approved reimbursable expenses claimed, with supporting documentation.
D. Line items for all approved sub- contractor labor, supplies, equipment, materials, and travel properly charged to the Services.
IV. Consultant' s billing rates for all personnel are attached as Exhibit C-1.
Exhibit " C" -1 .
692
EXHIBIT " C-1 "
CONSULTANT ' S BILLING RATE AND TASK SCHEDULE
matrix
co nsuIting gro up
Barbara Mason, Purchas ing ~ anager
City of Bann ing
99 IE. Ramsey Street
Bann ing , CA 92220
Dear Ms . Mason:
Apr il 22, 20 24
The M atr ix Consu lt ing Gro up proposes to erfo rm t he tas s and serv ices assoc1a ed with con diucting t he com preh s ive fe-e s d'J andl deve lopment imp,act ~ee study , or a t otal not-to-exceed fee of $88, 140 . TIile follow1n g1tab le prov iaes a breakdow n of hours by earn m embe an.a cost s for eac h tas area to oo n auct t he requested scope of ser, iio es.
Project- Wide Tasks
Oat a Co llect ion
Stud :,, ob ·e.cti",•e!i>
l'.roject--Wide Su6rotal
Comprehe.nsi\/e Fee Study Tasks
Current & Poten a IFees
eYiew/ Re·~h e Res,u l-.'!i
Dra Fee Stud :,, Re on
repare · in al Repon
De-ve lop .~ast.er Fee Sche u e
Pres t .at · on of Fe-e 'Re'.> Its
Excel l\i ode-I & Trainin g
De\/ elopment Fee Study Tasks
eYiew oz Impact Fees
roj ecte Sro·wth an d Nee s
Draft Fees Analysis
Com parat ·ye Sur.,,e.y
Draft Report.
Fi nal re pon
Presen .a · on of Fe-e es Its
IBac kup Docum ta ·on
T ot al J-lours
Fee Stud)' Su6rotal'
DIF Srudy Su6roral
li'roj-ect
Mana ger
2 4
4 4
4 4
2 70
a
2 3
a
1 •
Hi
110
186
A.naly'!it
8 10
36 24
10 2.4
10 22
0 8
ff58
16 22
32 2.8
10 0
8 124
1650 S A.mpt lull Bl\'l.l .. Su1l~ 21 3 San \ 1Jlt' u, CA 94402 65C.85 8 050 7 SF B,. y ,\ l!<l I e~ dq ua1!i,1 9 ;. Ch 111 lu tl1! D1> I ~-. F~ I M) I!'> h-.11 1, P~, t a11 J . SI L:}u s Exhibit " C -1 "- l
To1al Co !i.1.
S1 ,380
S1 ,260
S I ,S.60
S2: 160
S2. 460
8 ,280
S4 .D80
S3 ,900
S6 ,Cl00
S2 .460
S3, 780
S3 ,840
s1 :00
S4 ,320
S6 ,Cl00
10, 500
S6 , 2.0
S8 ,Clt40
S3 ,900
S3 ,840
S1 ,680
693
Ho urly at eT ot al Pro s-.;; o na l Fe-es
Tota l Proj ect Cost
Project
a nag,er
24 44,64 0
Ana lyst
s·,so
43,500
To1.a l Cost
88 ,UO
88 ,1 40
The City w i11be prov iaedl w it h imp leme at io n ass istan ce an a future project SlilJllPOrt at no ada it io a l cost.
Our typ· cal p ra ct ice is t o b ill 1for hours orked m on h ly, w· h · r oo n acts set up as f ixea not- t o-ex ceed pr ice cont racts . . e are ope n to b ill in g on a task or de liverab le bas is as we ll. rr
Richard Brady, Pr,es idernt
Matrix. Consu ing Group. Ltd.
Exhibit " C -l "-2
694
EXHIBIT " D"
SCHEDULE OF PERFORMANCE
I. Consultant shall perform all Services timely, and deliver the specified tangible work products to City in accordance with the schedule attached as Exhibit D-1.
II. The Contract Officer may approve extensions for performance of the Services in accordance with Sections 1.8 and 3.3.
Exhibit " D" - 1
695
Project Schedu le
EXHIBIT " D-1 "
PROPOSED PROJECT SCHEDULE
St udi es of this nat ure typically ta ke app roximat ely 6 mont hs (24 wee ks) to com plet e. The followi ng tab le outlin es ou r propose d project sch edule on a tas k-by-task basis.
Task
Project Wide Tasks
Dat a Collectio n
Study Object ives
User Fee Study Tasks
Cllrrent & Pot ential Fees
Dat a Workshops
Ful!ly Burd ened Hou rly Rates
Total Cost Ana lys is
Comparative Survey
Rev iew/ Revise Results
Draft Fee Study Report
Prepare Final Repo rt
Deve lo Mast er Fee Schedu le
Deve lopme nt Impact Fee Study
Rev iew of Impact Fees
Projected Growth and Needs
Draft Fees Analysis
Comp arative Survey
Draft Report
Fina l report
1 2
Ex hib it " D- 1 "- I
Month
3 4 5 6
696
Chapter 3.36 - FEE AND SERVICE CHARGE REVENUE/ COST COMPARISON
3.36.010 - Intent.
Pursuant to Article XIIIB of the California Constitution, it is the intent of the city council to require the ascertainment and recovery of costs reasonably borne from fees and charges levied therefor in providing the regulation, products or services hereinafter enumerated in this chapter. (Code 1965, § 29-1.)
3.36.020 - Definitions.
The following words, terms and phrases when used in this chapter shall have meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
"Developer" means any person legally responsible for payment of any development impact or other fees in connection with a commercial development pursuant to this Code or any ordinance or resolution of the city.
"Development" means any project undertaken for the purpose of developing real property for residential, commercial, industrial or other uses, or any combination thereof, including a project involving the issuance of a permit for construction, reconstruction, rehabilitation or expansion, but not a permit to operate.
"Development impact fees" mean monetary exactions other than taxes or special assessments, established by either ordinance or resolution of the city council for a broad class of developments, or upon a specific development on an individual basis, in connection with the city's approval thereof for the purpose of defraying all or a portion of the cost of construction of public improvements and community amenities, but excluding the multispecies habitat conversation fee and the transportation uniform mitigation fee as defined in this section.
"Direct variable program costs" mean all applicable direct variable costs that would be eliminated if a program did not operate, including, without limitation, salaries, wages, fringe benefits, program specific supplies for program operation and maintenance, officials, and other direct expenses incurred. "Discretionary approval" means any regulatory land use action or approval by the city as to which the exercise of discretion is vested in the city or its officials, officers or employees and includes, but is not limited to the following: any tentative tract or parcel map, lot line adjustment, variance, conditional use permit, zone change or zoning code amendment, general plan amendment, development agreement, building permit, demolition permit, grading permit, administrative site plan, or design review. "Economic zone" means either one of the following areas:
10/2/25, 9:57 AM Banning, CA Code of Ordinances
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1. 2.
1. a.
D&M Economic Zone. All of that real property located within the boundaries of the Banning Merged Downtown and Midway Redevelopment Project Area that is zoned for commercial uses or otherwise designated for commercial use under the Banning General Plan, as may from time to time be updated and amended, as depicted in the diagram on file with the planning department, and as such boundaries may be amended from time to time.
SBL Economic Zone. All of that real property located within the City of Banning, California in proximity to Sun Lakes Boulevard that is zoned for commercial use or otherwise designated for commercial use under the Banning General Plan, as may from time to time be updated and amended, as depicted in the diagram on file with the planning department, as such area may be amended from time to time.
"Multispecies habitat conservation plan fee" means the impact fee imposed and levied under Ordinance 1305, as codified in Chapter 15.72 of this Code adopting the "Multispecies Habitat Conservation Plan" (MSHCP). The MSHCP establishes a fee known as the MSHCP fee, the purpose of which is to mitigate the incidental take of listed, threatened, and protected species and their habitats within areas of western Riverside County, including the City of Banning. The city has decided to participate in the MSHCP through the adoption of Ordinance No. 1305, as codified in Chapter 15.72. "Pass-through fees" mean those development impact and other fees and charges that are either: (i) imposed by another public or private entity, collected by the city and distributed to such other entity, or (ii) imposed and collected by the city pursuant to a contractual or statutory obligation for the benefit of another public or private entity. For example, school fees.
"Qualifying project" means a development that meets all of the criteria as set forth in subsections 1 through 4 of this definition:
The development meets one of the following requirements:
Large Commercial Retail Development. A new development primarily intended and approved for occupancy and use by one or more significant sales tax generators. A development will be deemed to meet this requirement where the project: (i) was approved as a commercial retail development; (ii) consists of the construction of one or more buildings suitable for large commercial retail enterprises; (iii) such buildings are constructed on at least one and one-half contiguous acres of area to be developed; and (iv) eighty percent of the gross square footage of the buildings (including covered or enclosed outdoor sales areas) constructed shall be occupied by one or more significant sales tax generators. For the purposes of this subsection, property shall be considered as contiguous even if separated by roads, streets, utilities easements or railroad rights-ofway or other dedicated rights-of-way. For purposes of this subsection, the "area to be 10/2/25, 9:57 AM Banning, CA Code of Ordinances
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698
b.
2. 3.
4. developed" means the area of the development that encloses all of the privately developed and owned improvements, including private circulation improvements, landscaped areas and parking areas; or Vehicle Dealership. A development primarily intended and approved for occupancy and use as a vehicle dealership. A development will be deemed to meet this requirement where the project: (a) was approved as a vehicle dealership; (b) consists of the construction of one or more buildings and related improvements suitable for operation by at least two vehicle dealerships, franchises or dealer points; (c) such buildings and improvements are constructed on at least three contiguous acres of area to be developed; and (d) vehicle showrooms, sales offices and outdoor vehicle display areas, considered together, equal or exceed the gross square footage of buildings occupied for vehicle service and/or storage. For purposes of this subsection, property shall be considered as contiguous even if separated by roads, streets, utilities easements or railroad rights-ofway or other publicly dedicated rights-of-way. For purposes of this subsection, the "area to be developed" means the area of the vehicle dealership that encloses all of the privately developed and owned improvements, including private circulation improvements, landscaped areas, vehicle display and storage areas, and parking areas.
The development is located entirely within the D&M or SLB economic zones.
The development will be consistent with all applicable land use laws, regulations, and development requirements contained within the city's general plan (as amended from time to time), any applicable specific plan (as amended from time to time), and this Code (as amended from time to time).
The application for the first discretionary approval required for the development has been deemed complete as of or after the effective date of the ordinance codified in this chapter. "Significant sales tax generator" means any use or combination of uses located in a development that is projected, by the city in its sole and absolute discretion, to generate not less than fifty thousand dollars per year in local sales taxes to be received by the city in accordance with the Bradley-Burns Uniform Sales and Use Tax Law (Revenue and Taxation Code 7200, et seq.), as it may be amended or substituted. "Transportation uniform mitigation fee program" means the development impact fee imposed and levied under City of Banning Ordinance No. 1291 adopting the "Transportation Uniform Mitigation Fee Program." This program establishes a fee known as the transportation uniform mitigation fee (TUMF). The purpose of the TUMF is to mitigate the traffic impacts of local development on, and to provide funds for the improvement and expansion of, existing and planned regional transportation and circulation facilities (including, but not limited to, regionally significant state, county, and local, arterials, highways, and freeways) within Riverside County or such other subregion of Riverside County, the boundaries of which exceed the 10/2/25, 9:57 AM Banning, CA Code of Ordinances
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699
A.
B.
C.
D.
E.
boundaries of the City of Banning as they exist on the effective date of the ordinance codified in this chapter and as they may hereafter be expanded by approved annexation. The city has decided to participate in this regional program through the adoption of Ordinance No. 1291. "Vehicle dealership" means any development which will provide for the franchised sale, lease and servicing of new and used motor vehicles, trucks, recreational vehicles, off-road vehicles, boats and other personal watercraft together with such ancillary uses such as administrative offices, automobile inventory storage, and parts sales.
(Code 1965, § 29-7.)
(Ord. No. 1551, § 3, 9-24-19; Ord. No. 1602, § 2, 4-9-24)
3.36.030 - "Costs reasonably borne" defined.
"Costs reasonably borne," as used and ordered to be applied in this chapter are to consist of the following elements:
All applicable direct costs including, but not limited to salaries, wages, fringe benefits, service and supplies, operation expenses, contracted services, special supplies, and any other direct expense incurred.
All applicable indirect costs including, but not restricted to, building maintenance and operations, equipment maintenance, communication, printing and reproduction, and like expenses when distributed on a rational proration system.
Fixed assets recovery expenses, consisting of depreciation of fixed assets, and additional fixed asset expense recovery charges calculated on the current estimated cost of replacement, divided by the approximate life expectancy of the fixed asset. A further additional charge to make up the depreciation not previously recovered and reserved in cash also shall be calculated and considered a cost so as to recover such unrecovered depreciation over the remaining life of the asset.
General overhead, expressed as a percentage, distributing and charging the expenses of the city council, city manager, administrative services (finance) department, city clerk, city treasurer, city attorney's office, personnel office, risk management; City Hall, and all other staff and support service provided to the entire city organization.
Departmental overhead, expressed as a percentage, distributing and charging the cost of each department head and his or her supporting expenses as enumerated in subsections A, B, and C of this section.
(Code 1965, § 29-3.)
3.36.040 - Delegation of authority and direction to city manager. 10/2/25, 9:57 AM Banning, CA Code of Ordinances
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700
A.
B.
A.
The city manager is directed to annually/seasonally review fees and charges to recover the percentage of costs reasonably borne in providing the regulation products or services enumerated in this chapter in the percentage of costs reasonably borne and on the schedule of rate review and revision as hereinafter established in this chapter and recommend changes to the city council for adoption.
"Costs reasonably borne" shall be defined in Section 3.36.030. In adjusting fees and charges, the city manager shall act in an administrative and ministerial capacity and shall consider only the standards and criteria established by this chapter.
(Code 1965, § 29-2.)
3.36.050 - Public meeting.
Pursuant to the requirements of California Government Code Section 54992, the city clerk has caused notice to be provided as set out in the Government Code Section 54992, and the city council has received at a public meeting oral and written presentations concerning the fees and charges proposed for those categories of fees and charges set out in Government Code Sections 54990 and 54991. Such notice, oral and written presentation receipt, and public meeting shall be provided by the city council prior to the city manager taking any action on any new or increased fees or charges for those categories set out in the Government Code Sections 54990 and 54991 and Section 3.36.080(A) of this chapter. (Code 1965, § 29-5.)
3.36.060 - Provision of data.
Pursuant to Section 54992 of the California Government Code, the city manager shall, at least ten days prior to the required public meeting set out in the Government Code section, make available to the public indicating the cost, or estimated cost required to provide the services set out in Government Code Sections 54990 and 54991.
(Code 1965, § 29-6.)
3.36.070 - Fees for qualifying projects.
Repeal of Development Impact Fees. Notwithstanding any other provisions of this Code or any other city ordinance or resolution, no development impact fees are applicable to, and except as is expressly provided in subsection H of this section, the imposition and levy of development impact fees against qualifying projects are repealed and no development impact fee shall be levied against a qualifying project and payment of development impact fees shall not be made a condition of approval of any qualifying project.
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701
B.
C.
D.
E.
1. 2.
F.
Nothing in this section shall be deemed or shall operate to limit, modify or abridge the obligation of any developer of a qualifying project with respect to the payment of ad valorem taxes, special taxes or assessments, fees and charges for utility services, and/or similar or dissimilar nondevelopment-related charges. Nothing in this section shall be deemed or shall operate to limit, modify or abridge the discretion of the city council (or its subordinate boards and commissions) with respect to the processing, conditioning, approval or denying of any application for a discretionary within the limits of such discretion provided by law to the city council (or its subordinate boards and commissions) with respect to such matters. Nothing in this section shall be deemed a representation, warranty or commitment by the city to approve, impose and/or delete any condition(s) with respect to the approval of any application for a discretionary, except to the limited extent as set forth in subsections A and B of this section.
Pass-Through Fees. Notwithstanding subsections A and B of this section, any qualifying project shall pay and be responsible for any and all pass-through fees applicable to such qualifying project, including but not limited to MSHCP and TUMF.
Applicability. The provisions of subsection A of this section shall not apply to: (1) any portion(s) of a development which is (are) not a qualifying project; and (2) any residential component of a qualifying project.
In each such case described in this section, the nonqualifying project or residential component shall pay as applicable: (i) if such nonqualifying portion(s) and/or residential component is (are) capable of receiving independent discretionary approvals separate and apart from the qualifying project, all fees and charges required of the nonqualifying portion(s) and/or residential component by city ordinance, resolution, or this Code; or (ii) if such nonqualifying portion(s) and/or residential component is (are) not capable of receiving discretionary approvals separate and apart from the qualifying project, a prorate percentage (based on the percentage that the gross square footage of the nonqualifying portion(s) and/or residential component represents to the gross square footage of the development as a whole of the fees and charges which would be required of the qualifying project by city ordinance, resolution, or this Code but for the application of subsection A of this section.
Sunset. The provisions of subsection A of this section shall not apply to any discretionary approval for a qualifying project as to which the application for such discretionary approval is not deemed complete (either by the city or by operation of law) after the earlier of the following:
As to a qualifying project, December 31, 2010; or
The date on which the city council, its sole and absolute discretion, rescinds or modifies the provisions of this section.
Fair Share. This section shall not have the effect of requiring any person or entity to pay more than that person's or entity's "fair share" of the costs attributable to development by that person or entity. For purposes of any study or analysis conducted by the city following the effective date 10/2/25, 9:57 AM Banning, CA Code of Ordinances
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702
G.
H.
I.
of the ordinance codified in this chapter which first added this section to the Code, to determine the amount of developer impact fees required to offset the costs attributable to any development within the city, all qualifying projects shall be deemed by the city to have paid all development impact and other fees which may have been imposed by the city against such project but for the provisions of subsection C of this section.
Condition to Issuance of Certificate of Occupancy. If a development which was a qualified project at the time of the application of subsection A of this section to such development is no longer a qualifying project as of the issuance of any certificate of occupancy for such development due to any reason other than an affirmative legislative action of the city which causes the development to fail to meet any of the criteria for a qualifying project as set forth in Section 3.36.020 of this chapter, then the developer shall pay to the city as a condition to the issuance of such certificate of occupancy an amount equal to the full amount of fees and/or charges which would have been payable with respect to such development but for the operation of subsection A of this section.
No Vested Rights. This section is not intended to and shall not create any vested right, entitlement or privilege in any person or entity. This section may be enforced solely through a writ of mandate pursuant to Code of Civil Procedure Section 1085. The city council may amend, terminate, suspend or abrogate all or any provisions of this section at any time and for any reason within the limits of the discretion afforded the city council by law with respect to legislative matters. Any such amendment, termination, suspension or abrogation shall be applicable to any application for a discretionary approval for a qualifying project which is deemed complete (by the city or by operation of law) on or after the effective date of the ordinance codified in this chapter enacting such amendment, termination, suspension or abrogation.
No Representation Regarding Labor Code Matters. Nothing in this section or elsewhere in this Code is or is intended to be a representation or affirmation to any developer or other entity concerning the application of any provision of the California Labor Code, including, without implied limitation, Labor Code Sections 1720 and 1773. Any party availing itself of the benefits of this section agrees to and shall comply with any applicable provisions of state and federal labor laws and regulatory requirements, including those applicable to public works. Further, as a condition to receiving the benefits of the alternate fee schedule as set forth in this section, any party receiving the benefits thereof shall be deemed to have agreed to and shall defend, indemnify and hold the city and its respective officers, officials, employees, agents, attorneys and contractors harmless from and against all liability, cost and expense alleged against or incurred by the city or the other indemnified parties as a result of that party's failure to comply with the provisions of this subsection.
(Code 1965, § 29-7.1.)
3.36.080 - Schedule of fees and service charges.
10/2/25, 9:57 AM Banning, CA Code of Ordinances
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703
A.
The city manager, finance director and each city department head, under the direction of the city manager, shall review the fees and service charges listed following, on the schedule of frequency listed in this section, and set and adjust the fee or charge schedule so as to recover the listed percentage of costs reasonably borne necessary to provide the listed regulation, product or service.
Development Services:
Regulation, Product or Service Percentage of Costs
Reasonably Borne to be
Recovered
Review
Schedule
Number Service Center
S-1 Bldg. plan checking 100% Annual
S-2 Bldg. construction insp. 100% Annual
S-3 Mobile home inspection 100% Annual
S-4 Improvement inspection 100% Annual
S-5 Plan storage 100% Annual
S-6 Special inspections 100% Annual
S-7 Energy conserv. insp. 100% Annual
S-8 Zone change review 100% Annual
S-9 Variance review 100% Annual
S-10 Conditional use review 100% Annual
S-11 Lane use review 100% Annual
S-12 Gen. plan amend. review 100% Annual
S-13 Specific plan review 100% Annual
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S-14 Lot line review 100% Annual
S-15 Tentative sub. & parcel map review 100% Annual
S-16 Time extension review 100% Annual
S-17 Appeal processing 100% Annual
S-18 Zone text amend. rev. 100% Annual
S-19 Review cond. use text amendment 100% Annual
S-20 Environmental review 100% Annual
S-21 Project design review 100% Annual
S-22 Sign review 100% Annual
S-23 Subdivision plan check 100% Annual
S-24 Subdivision inspection 100% Annual
S-25 Record of survey plan check 100% Annual
S-26 Improvement plan check 100% Annual
S-27 Service availability cert. 100% Annual
S-28 Deed preparation 100% Annual
S-29 Development flood rev. 100% Annual
S-30 Public works insp. 100% Annual
S-31 Encroachment permit review 100% Annual
S-32 Street cut inspection 100% Annual
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B.
S-33 Street/all abandonment review 100% Annual
S-34 Parcel map plan check 100% Annual
S-35 Preliminary proj. check 100% Annual
S-36 Annexation review 100% Annual
S-37 Developer agreement preparation 100% Annual
Public Safety Services:
Regulation, Product or Service Percentage of Costs
Reasonably Borne to be
Recovered
Review
Schedule
Number Service Center
S-38 Vehicle code enforce. Per municipal court bail &
fine schedule
Annual
S-39 City ord. enforcement Per municipal court bail &
fine schedule
Annual
S-40 Automotive accident investigation 30% Annual
S-41 Spec. police services 40% Annual
S-42 False alarm response* 100% Annual
S-43 Police records check 20% Annual
S-44 Business regulation 100% Annual
S-45 Animal regulation 50% Annual
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C.
S-46 Police photo develop. 100% Annual
S-47 Bicycle licensing 100% per State law Annual
S-48 Forest resource mgmt. 50% Annual
S-49 Fire system review & inspection 100% Annual
S-50 New business fire hazard insp. 100% Annual
S-51 Low hazard fire insp. 50% Annual
S-52 State mandated fire inspections 100% Annual
S-53 Fire inspection of existing
businesses
100% Annual
S-54 Operational Fire Permits 100% Annual
S-55 Fire code permit insp. 100% Annual
S-56 Fire suppression cost recovery 100% Annual
S-57 EMT service 50% Annual
S-58 Hazardous material record
location
100% Annual
* Per a regulatory ordinance to be passed by the city council.
Parks and Recreation Services:
Regulation, Product or Service Percentage of Costs
Reasonably Borne to be
Recovered or Direct
Variable Program Costs
Review
Schedule
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707
Number Service Center
S-57 Swim pool public oper. 100 % of direct variable
program costs
Annual
S-58 Swimming lessons 100 % of direct variable
program costs
Annual
S-59 Swim pool rental 50% Costs Reasonably
Borne to be Recovered
Annual
S-60 Youth sports league oper. 100 % of direct variable program costs
Seasonal
S-61 Adult sports league oper. 50% Costs Reasonably
Borne to be Recovered
Annual
S-62 Community center maint. &
operation
50% Costs Reasonably
Borne to be Recovered
Annual
S-63 Youth recreation classes 25% Costs Reasonably
Borne to be Recovered
Seasonal
S-64 Adult recreation classes 75% Costs Reasonably
Borne to be Recovered
Seasonal
S-65 Senior citizen program 10% Costs Reasonably
Borne to be Recovered
Annual
S-66 Park facility maint. and operation 100% Costs Reasonably Borne to be Recovered
Annual
S-67 Stagecoach days community
celebration
0% Costs Reasonably Borne
to be Recovered
Annual
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708
D.
S-68 Noncity ballfield use 50% Costs Reasonably
Borne to be Recovered
Annual
S-69 Day camp(s) 100 % of direct variable
program costs
Annual
Utility and Enterprise Services:
Regulation, Product or Service Percentage of Costs
Reasonably Borne to be
Recovered
Review
Schedule
Number Service Center
S-75 Transit service 20% Annual
S-76 Dial-a-ride 5% Annual
S-77 Water service turn-on 100% Annual
S-78 Water meter installation 100% Annual
S-79 Water service 100% Annual
S-80 Delinquent account reconnection 46% Annual
S-81 Water meter testing 100% Annual
S-82 Electric service turn-on 31% Annual
S-83 Temporary pole erection 100% Annual
S-84 Electric service 100% Semi-Annual
S-85 Delinquent account reconnection 42% Annual
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E.
S-86 Electric meter testing 0% Annual
S-87 Electric service cut 56% Annual
S-88 Wastewater service 100% Annual
S-89 Sewer connection investigation 0% Annual
S-90 Sewer stoppage investigation 0% Annual
S-91 Refuse collection and disposal 100% Annually
every June
1st, based on
CPI and/or
when dump
fees or other
governmental
fees or taxes
are adjusted
(refer to
Refuse
Collection
Agreement
dated May 23,
1978,
Sections 11 A
and B)
Maintenance Services:
Regulation, Product or Service Percentage of Costs
Reasonably Borne to be
Recovered
Review
Schedule
10/2/25, 9:57 AM Banning, CA Code of Ordinances
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F.
Number Service Center
S-92 Utility Street Use 100% Annual
Finance or Administrative Services:
Regulation, Product or Service Percentage of Costs
Reasonably Borne to be
Recovered
Review
Schedule
Number Service Center
S-99 Document printing 100% Annual
S-100 Returned check processing 100% Annual
S-101 Photocopying 100% Annual
S-102 Certification of docs and info 100% Annual
S-103 Research on request 100% Annual
S-104 Mailing agendas and minutes 100% Annual
S-105 New service 100% At inception
All fees and charges set pursuant to this chapter and section shall take effect immediately. (Code 1965, § 29-4; Ord. No. 1599, § 2, 2-13-24; Ord. No. 1602, § 3, 4-9-24) 10/2/25, 9:57 AM Banning, CA Code of Ordinances
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AFFIDAVIT OF PUBLICATION
Record Gazette
218 N. Murray St., Banning, CA 92220
Proof of Publication
(2015.5 C.C.P.)
User Fee Adoption
___________________________________________________
State of California )
County of Riverside ) SS.
I am a citizen of the United States and a resident of the State of California; I am over the age of eighteen years, and not a party to or interested in the above matter. I am the principal clerk of the printer and publisher of Record Gazette, a newspaper published in the English language in the City of Banning, County of Riverside, and adjudicated a newspaper of
general circulation as defined by the laws of the state of California by the Superior Court of the County of Riverside, under the date October 14, 1966, Case No. 54737.
That the notice, of which the annexed is a copy, has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to-wit:
Oct 31, 2025
Executed on: ____________________
At City of Banning, California
I ceritfy (or declare) under penalty of perjury that the foregoing is true and correct.
___________________________________________________
Signature
User Fee Adoption | Page 1 of 2
October 31, 2025
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User Fee Adoption | Page 2 of 2
713
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Arturo Vela, Interim City Manager
PREPARED BY: Nate Smith, Deputy Director of Public Works/City Engineer MEETING DATE: November 12, 2025
SUBJECT: Western Regional Council of Governments (WRCOG) Vehicle Miles Driven (VMT) Mitigation Program Overview
RECOMMENDATION:
Provide guidance to staff
BACKGROUND:
The following includes information taken from a staff report from WRGOC Staff to the Public Works Committee on April 10, 2025. Similar presentations and reports were made to the Planning Directors Committee and Executive Committee.
Senate Bill (SB) 743, implemented on July 1, 2020, requires development projects to utilize Vehicle Miles Traveled (VMT), rather than Level of Service (LOS), as the metric to determine its transportation impacts under the California Environmental Quality Act. WRCOG assisted its member agencies in the implementation of SB 743 with guidance on meeting the requirements of the Bill. To continue with the implementation of VMT as a metric, WRCOG has been actively working with partner agencies to develop a VMT Mitigation Program Manual.
One objective of WRCOG's Local Transportation Funds (LTF) Program with the Riverside County Transportation Commission (RCTC) is to assist WRCOG with SB 743 implementation. As part of this, WRCOG conducted initial research on a possible VMT Mitigation Program or bank strategies for development projects as part of its SB 743 implementation activities. This initial research was presented to the Public Works Committee (PWC) in May 2021 and, as a result, WRCOG received inquiries from member agencies regarding the development of a potential regional VMT Mitigation Program for western Riverside County.
During WRCOG’s work on SB 743 implementation, the issue of VMT mitigation was noted to be problematic. The main reason is that most land-use projects cannot implement transportation system improvements or directly influence the travel of its occupants. VMT is a function of the intensity of use, type of use, and location, so the main challenge is that VMT is ultimately a regional, not local, concern. In comparison, LOS-based impacts are relatively easy to mitigate since payment of fees for improvements or construction of improvements, or some combination thereof, are appropriate mitigation.
On October 4, 2021, WRCOG staff received direction from the Executive Committee to evaluate options to mitigate VMT impacts from new development. WRCOG commenced an effort to develop a potential program for western Riverside County, and has been discussing the different elements and options with RCTC and the Riverside Transit Agency (RTA). These two agencies were identified since they would be potential large credit generators and/or credit users if they choose to participate. Participation in any 714
potential program will be on a voluntary basis, so member agencies will participate in a program only if it decides to opt-in.
Since this due diligence process has taken place, the project team has looked at potential benefits and challenges to the different types of mitigation programs and its framework, such as banks, exchanges, and impact fee programs. The project team has also considered the key elements of additionality and equity. In addition, the project team has been exploring potential governing structures and the different elements of operating a program. The project team includes WRCOG's legal counsel to ensure all elements of the program are analyzed from all aspects.
The mitigation measures included will influence the type of program, so the project team has been working with member and partner agencies to identify potential mitigation measures to be included. WRCOG reached out to interested PWC members in February 2023 to solicit potential projects and programs that could be included in a program to serve as an initial project list. This initial project list is strictly for information and additional projects and programs may be added. For the sake of due diligence and feasibility, the project team estimated the potential VMT reduction associated with the projects and programs. The project team also completed an equity analysis to consider demographic trends, including historically disadvantaged communities when identifying which projects and programs could be included in a regional VMT Mitigation Program.
Present Situation
All of the technical work and research on a potential VMT Mitigation Program has been completed. A draft Program Manual that was reviewed by various stakeholders including RCTC, RTA, and the Western Riverside County Regional Conservation Authority (RCA) has been finalized. The goal of the Program Manual is to serve as a guiding document of a potential program. It is anticipated that the Program Manual would be updated as the Program develops, similar to how the TUMF Program Administration Plan is updated.
Some key elements of the effort proposed by WRCOG are as follows:
- The Program would be a regional effort with WRCOG serving as the Program Administrator. - The effort would be structured as an exchange instead of a bank or fee. - The WRCOG Planning Directors Committee (PDC) would provide direct oversight of the Program with the Executive Committee retaining final jurisdiction as with all WRCOG activities. - Agencies would agree to join the Program by executing a Participation Agreement with WRCOG. - Agencies which have formally joined the Program can then submit VMT-reducing projects, also known as Credit-Generating Items, to be included in the Program. - Only public agencies can submit Credit-Generating Items to be included in the Program. - WRCOG would compile a list of Credit-Generating Items. - Credit-Generating Items would then be available to be purchased to generate VMT credits. - Any public or private entity can purchase VMT credits by selecting one or more projects from those available on the list WRCOG maintains.
- WRCOG would collect a nominal administrative fee (4%) based on the Program costs for this transaction.
- WRCOG would refresh the Program list as appropriate.
- Agencies can choose to participate in WRCOG's Program, participate in other regional programs, develop their own program, or any combination of those three. The only limitation is that an agency is not allowed to submit the same Credit Generating Item to multiple programs.
Graphics depicting the operation of a program are provided in the final draft Program Manual that is attached as Attachment 1 to this Staff Report. The flowcharts describe the following Program elements:
- Overall Program Process
715
- Process for Credit Generators
- Process for Submitting Credit-Generating Items
- Process for Private Sector Requests for Credit
- Process for Public Sector Requests for Credit
- Appeals Process
Next Steps
A final draft Program Manual, which has been in development since 2021, has been reviewed by staff at RCTC, RTA, and RCA. The Program Manual serves as a guide for how the Exchange Program will be governed and operated. The Program Manual was developed to include every aspect possible to ensure it was all encompassing. However, since VMT mitigation is a relatively new subject, it is anticipated that new items will be discovered. WRCOG is committed to updating the Program Manual when these items are discovered, and will ensure transparency.
The goal of developing and implementing a program is to provide member agencies and projects in the subregion an option to mitigate its VMT impacts. The Program Manual establishes this option.
JUSTIFICATION:
If the City of Banning elects to participate as a Credit Generator, staff would prepare a list of projects that are VMT mitigation eligible. These projects could include bus passes, transit stop enhancements, transit route enhancement, bike lane implementation and construction, walking trails, or other projects that support non-motorized transportation.
FISCAL IMPACT:
There is no cost to the City to participate in the program as a credit generator and submit certain types of projects, such as bus passes.
For other projects, the City would be responsible to fully construct the project as offered on the VMT Mitigation marketplace, if selected by a Credit User. Upon completion of the project, WRCOG would reimburse the City for the work completed, up to the amount listed in the marketplace.
For example, a transit stop enhancement project may include a shelter, benches, and trash receptacle.
The City would provide a fixed cost to construct that facility to the marketplace. Upon completion, WRCOG would provide reimbursement up to the cost that the improvement was purchased for. The City would be responsible for cost overruns.
City staff can update projects on an as-needed basis for items not yet purchased by a Credit User with WRCOG. It would be incumbent on City Staff to properly asses the anticipated costs of any project listed to the marketplace, and update as costs change.
ALTERNATIVES:
Receive feedback from City Council on whether to proceed with the Credit Generator Participation Agreement, as well as receive direction from Council on requested City policy if elected to proceed.
Discussion tonight is not to sign the agreement or not. Official action and resolution would be brought back to City Council for execution. That resolution can be accompanied with official policy, if desired by the City Council.
BUDGETED?:
No
CONTRACT/AGREEMENT:
No
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ATTACHMENTS:
1. WRCOG VMT Program Manual.pdf
2. Credit Generator Participation Agreement.pdf
717
Regional VMT
Mitigation Program
Implementation
Manual
Western Riverside Council of Governments
Adopted by the WRCOG Executive Committee May 5,2025
718
i
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TABLE OF CONTENTS
I. INTRODUCTION .............................................................................................1 II. BACKGROUND AND PURPOSE........................................................................2 A. Senate Bill 743 and Vehicle Miles Traveled.....................................................2 B. Need for a Regional VMT Mitigation Program ..................................................3 C. Different Types of Regional VMT Mitigation Programs......................................4 D. Definitions...................................................................................................5 III. THE VOLUNTARY VMT EXCHANGE PROGRAM ..................................................6 A. General Description and How it Works ..........................................................6 B. Potential Types of VMT Mitigation Projects (Credit-Generating Items) ..............6 C. Governance...............................................................................................10 D. Administration ...........................................................................................11 E. Exchange Menu..........................................................................................24 F. Participants ...............................................................................................25 IV. QUALIFICATION CRITERIA FOR CREDIT-GENERATING ITEMS..........................26 V. QUANTIFICATION OF CREDIT-GENERATING ITEMS.........................................26 A. General Principles for Credit Quantification.................................................26 B. Standardized Calculation Methods .............................................................27 VI. APPENDICES ...............................................................................................28 719
720
WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS
VOLUNTARY VMT MITIGATION EXCHANGE
PROGRAM MANUAL
1 I. INTRODUCTION
The Western Riverside Council of Governments (WRCOG), in partnership with its member agencies and key regional stakeholders, has developed a voluntary exchange program (Program) to provide a method to mitigate vehicle miles traveled (VMT) impacts under the California Environmental Quality Act (CEQA). WRCOG will serve as the Program Administrator and main point of coordination for Program Participants, which could include regional agencies, WRCOG member agencies, and other stakeholders, as appropriate.
The requirement to analyze and mitigate VMT impacts as part of a CEQA document is an emerging field. While there is substantial empirical data regarding the effectiveness of various VMT mitigation measures, there is less certainty regarding how VMT mitigation programs might be utilized, particularly by parties needing to find ways to offset their VMT impacts.
Through the Program, Program Participants in need of a way to offset significant VMT impacts will be able to purchase VMT credits generated by participants with VMT credit-generating projects. As a result, credit-using projects will not be delayed due to an inability to offset VMT impacts, and credit-generating projects may be expedited due to access to funding. The Program is voluntary and applicants who are unable to secure credits or unwilling to comply with the various requirements can pursue other opportunities for VMT mitigation through alternative means.
This Program Manual establishes rules and procedures intended to cover most anticipated situations and provides some level of flexibility to adjust to changing circumstances. If there is a case in which the Program Manual does not fully anticipate a circumstance or discretion is required, WRCOG commits that it will exercise its discretion in an impartial, transparent, and collaborative fashion. WRCOG is well suited to serve as an impartial administrator, able to act in the best interests of the overall program rather than themselves, because WRCOG does not generate or use credits.
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2 WRCOG reserves the right to take action in the best interest of the Program to best serve all participants. These actions could include, but are not limited to, the following:
▪ Limiting the number of credits available to one applicant. ▪ Choosing not to provide credits to an applicant if such a restriction is determined to be in the best interest of the program.
▪ Deferring the provision of credits until a later date for various reasons. ▪ Withholding credits from applicants who are unwilling to sign the appropriate agreements.
Applicants who are requesting credits from the Program have the right to appeal any decision made by the Program Administrator and will be allowed to utilize the formal appeal process, provided they have standing to appeal, as described in Section III.D.9.c.i.
This Program Manual is intended to be a living document. As State regulatory guidance changes and the program evolves, WRCOG will regularly update the Program Manual to reflect these changing conditions. Any updates will be prepared and implemented in conjunction with our regional partners, WRCOG member agencies, and other stakeholders, as appropriate.
II. BACKGROUND AND PURPOSE
A. Senate Bill 743 and Vehicle Miles Traveled
Before a California public agency issues a discretionary approval that authorizes an action with potential environmental impacts, the agency must first comply with CEQA and disclose potential impacts to the environment. For example, before a city or a county approves a site-development project, and before a transportation agency approves the construction of new infrastructure, those agencies must ensure that CEQA compliance has been completed.
Unless an action is exempt from substantive environmental review, an agency is most often faced with the choice of preparing either a CEQA Negative Declaration or, Mitigated Negative Declaration (MND), or an Environmental Impact Report (EIR). Either an MND or EIR may involve the imposition of “mitigation measures” which help to address or reduce a project’s potentially significant impacts.
The manner in which transportation effects are analyzed under CEQA changed dramatically when Senate Bill 743 (SB 743) was adopted in 2013 and codified in Public Resources Code section 21099. This law and its implementing regulations require that 722
3 4913-5462-9671, v. 1
transportation impacts throughout the state no longer be measured in terms of vehicle delay, but instead in terms of how many VMT a project generates. The purposes of SB 743 are to place greater focus on implementing the State’s goals of reducing greenhouse gas (GHG) emissions, promoting transit, and increasing infill development.
For many agencies, the threshold of how much VMT triggers the requirement for an EIR varies. But, in some instances, that threshold may be reached even for projects that align with the State’s goals of reducing GHG emissions, promoting transit, increasing infill development, and building more housing. When significant impacts are identified, CEQA requires that feasible mitigation measures be proposed. If all feasible mitigation is exhausted and there is still a significant impact, a statement of overriding considerations must be issued which would trigger an EIR. This adds further cost and time to project implementation.
SB 743 has a disproportionately heavy impact on less-developed counties (like Riverside County) because those areas have not yet fully built-out their roadway networks, have less robust non-automotive travel options (like transit), and lack institutional support facilities. Thus, developments in Riverside County are far more likely to constitute “new” development, rather than “infill” projects, and are far more likely to generate VMT effects that require a full EIR, rather than a streamlined Negative Declaration/Mitigated Negative Declaration (or potential exemption). Thus, there is a demand for a dependable means of reliably mitigating or offsetting VMT impacts that would arise from development and transportation projects.
B. Need for a Regional VMT Mitigation Program
Transportation demand management strategies have traditionally been utilized to change travel behavior as a way of reducing VMT. These strategies are generally most effective in urban areas where a project site is accessible through multiple travel modes (i.e., walking, bicycling, transit, and personal micro-mobility vehicles), offering similar travel times and convenience. These strategies are less effective in low-density suburban and rural areas where travel modes are more reliant upon personal automobiles. Much of Western Riverside County falls into this latter category and needs a coordinated regional approach.
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4 C. Different Types of Regional VMT Mitigation Programs In more suburban and rural areas, a program-based approach to VMT mitigation is typically more effective than applying strategies to a project site only. Following is a review of three common program-based approaches that may be established to enable mitigation options for projects required to implement VMT mitigation:
▪ VMT Impact Fee Program – is a traditional impact fee program in compliance with the Mitigation Fee Act. The nexus for the fee program is a VMT reduction goal consistent with the CEQA threshold established by a lead agency for SB 743 purposes. The main difference from a fee program based on a metric such as vehicle level of service (LOS) is that the VMT reduction nexus results in a capital improvement program consisting largely of transit, bicycle, and pedestrian projects.
These types of fee programs are time-consuming to develop, monitor, and maintain but are recognized as an acceptable form of CEQA mitigation. ▪ VMT Mitigation Exchange – relies on a Credit User agreeing to fund, implement, or acquire a predetermined VMT reducing project or propose a new one. The project may be located in the vicinity of the project needing VMT mitigation or elsewhere in the community, and possibly outside the community. The VMT Mitigation Exchange needs to have a facilitating entity that can match the VMT producer (the development/ infrastructure project) with a VMT reducing project or action. The facilitating entity could be the lead agency or another entity that can provide the match and document the VMT reduction with substantial evidence. This option provides the most flexibility for mitigation project selection and is also the least complex to set up. Implementation is completed on a project-by-project basis, similar to typical mitigation measures.
▪ VMT Mitigation Bank – attempts to create a monetary value for VMT reduction such that a Credit User could purchase VMT reduction credits. The money exchanged for credits could be applied to local, regional, or state-level VMT reduction projects or programs. Like all VMT mitigation, substantial evidence is necessary to demonstrate that the projects covered by the VMT Mitigation Bank would achieve expected VMT reductions and some form of monitoring may be required. This is more complicated than a simple exchange and requires more time and effort to set up and implement. However, the VMT Mitigation Bank can include other VMT reducing efforts (like rideshare or telecommute programs) that cannot be implemented in a VMT Impact Fee Program and would be more difficult to implement in a VMT Mitigation Exchange program. The verification of how much VMT reduction is associated with each dollar or credit and tracking mitigation completion are more difficult parts of the VMT Mitigation Bank. Perhaps the most 724
5 4913-5462-9671, v. 1
restrictive component of a VMT Mitigation Bank is that VMT reduction credits need to be generated prior to their ability to be purchased; which necessitates some level of seed funding to implement projects or programs to begin generating the VMT credits prior to them being sold.
The option that best fits the needs of Western Riverside County currently is an exchange program given some of the constraints noted above. WRCOG will serve as the facilitating entity (VMT Program Administrator) and will be responsible for administering the program.
D. Definitions
▪ Applicant: A developer or similar entity applying to purchase credit(s) as a credit user.
▪ Credit: VMT reduction credit.
▪ Credit Generator: A public agency that implements a project or program that produces a VMT reduction credit. Credit generators will enter into a Participation Agreement with the Program Administrator. This agreement enables public agencies to submit credit-generating items to the Program that are eligible to receive funding through the Program.
▪ Credit-generating Item: A specific project or program that has produced or may produce a credit.
▪ Credit User: Land development or transportation project administrator that needs VMT reduction credits for CEQA mitigation.
▪ Implementing Agency: A public agency responsible for implementing a public sector project for those cases in which another agency is designated as a lead agency for purposes of CEQA.
▪ Lead Agency: The public agency that has primary responsibility for carrying out or approving a project that is subject to CEQA.
▪ Program Administrator: The entity responsible for managing the Program and facilitating VMT mitigation exchange. WRCOG serves as the Program Administrator. ▪ VMT Impact: The generation of VMT above the applicable threshold of significance by a project, which may require a Credit User to seek a mitigating credit(s). 725
6 III. THE VOLUNTARY VMT EXCHANGE PROGRAM
A. General Description and How it Works
Following is a brief description of the major steps to facilitating a VMT mitigation exchange:
1. The Program Administrator requests credit-generating items from Credit Generators to be included on a list of potential credit-generating items that have produced or may produce a credit(s) and the Program Administrator maintains the list of items.
2. Credit Generators submit credit-generating items on a processing form that details the project/program cost and description and certifies the project/program is ready for implementation, as defined by the qualification criteria in this Program Manual (see Section IV). For the purposes of the Program, active steps taken to implement the project/program being submitted as a credit-generating item is implementation.
Additional clarification is provided in the Participation Agreement (Appendix A).
3. Credit Users generate a significant VMT impact and need to purchase credits to mitigate those impacts. The cost of credits is project/program specific.
4. Credit Users submit a form indicating that the Credit User generates a significant VMT impact and is applying to purchase credits to mitigate impacts. If the Credit User is not a public agency, the application must be reviewed by the CEQA lead agency to verify application details before credits are issued.
Note: Mitigation measures must equal or exceed the amount of the VMT impact to fully mitigate the project impact under CEQA.
5. Funds are collected by the Program Administrator and allocated to the specific Credit Generator whose credit-generating item was selected by the Credit User.
A description of the overall process is provided as Exhibit 1.
B. Potential Types of VMT Mitigation Projects (Credit-Generating Items) The following potential credit-generating items do not represent an exhaustive list of potential VMT-reducing projects or programs. Currently, the California Air Pollution Control Officers Association (CAPCOA) Handbook for Analyzing Greenhouse Gas Emission Reductions, Assessing Climate Vulnerabilities, and Advancing Health and Equity (CAPCOA, December 2024) is the best source for the latest data and research for quantification of credit-generating items. As new data, studies, and information become available, additional projects/programs may be incorporated as creditgenerating items, beyond what is currently identified by CAPCOA. 726
Program Administrator requests list of
credit-generating items from Credit
Generators
Credit Generators submit eligible
items
Program Administrator confirms
eligibility and quantifies VMT reduction
for each submitted item
Credit User generates a VMT impact
and determines need to mitigate that
impacts
Credit Users apply to purchase credits
to mitigate impacts
Application is reviewed and if approved by
Program Administrator, Credit User pays for
specific credit-generating item
Program Administrator allocates funds back to
Credit Generator who submitted the specific
credit-generating item
If Program Administrator/Credit Generator
have questions, issues are resolved before
credit generating item is eligible for
inclusion in Program
If application is not approved, Credit User
may update application or determine
appropriate next steps in consultation with
Program Administrator
WRCOG Voluntary VMT Mitigation Exchange Program
Overall Program Process
727
8 Any credit-generating item that is incorporated into the Program must provide sufficient information that would allow the Program Administrator’s technical experts to quantify the credits that would be available during the Program. The Program Administrator has the flexibility to revisit the projects or programs included in the Program on an annual basis to ensure the projects or programs are achieving the intended mitigation amount as costs, information, and other variables change.
As noted above, the Program Administrator will be responsible for working with its technical experts to calculate VMT credits using information supplied by the Credit Generator. Credit users, such as CEQA lead agencies, may then choose which credit generating project(s) best align with their mitigation needs. As such, the Credit Users would have the opportunity to rely upon and accept the VMT-reduction analysis completed by the Program Administrator’s technical expert. WRCOG will also provide the VMT reduction calculations to the Credit User at their request.
Potential Credit-Generating Items include but are not limited to the following:
1. Operations/Maintenance Projects
− Transit Network Coverage or Hours Extension: Adding or modifying transit operations to include more hours of existing routes/lines or fund the operations of a new transit route/line.
− Transit Service Frequency Increase: Modifying and funding transit operations to include more frequent service on an existing transit line.
2. Ongoing Programs
− Transit Passes: Providing discounted or free transit fare to a specific geographic area, population group, or the general public. − Vanpool Program: Providing financial support for a vehicle to groups of 5 to 15 people for the purpose of carpooling between their workplaces and residences.
− Rideshare Program: Providing access to and encouraging the use of a ridesharing alternative, platform, or service. This could be an app, website, or other service that provides ride-matching coordination services. 728
9 4913-5462-9671, v. 1
3. Capital Improvements
− Pedestrian Network Improvement: Constructing new sidewalks and/or improving damaged or substandard sidewalks that connect to a larger pedestrian network.
− Bike Facility Construction or Improvement: Constructing new or enhancing an existing Class I, II, or IV bike facility.
− Transit-Supportive Roadway Treatments: Funding infrastructure improvements, such as traffic signal modifications and roadway signage and striping, that are dedicated to improving transit travel times and reliability. − Transit Access, Safety, and Comfort Improvements: Funding infrastructure improvements that reduce the barriers to using transit, including new or enhanced features, such as, but not limited to, bus shelters, lighting, bike racks, crosswalks, transit security guards, and/or ambassadors and bus turnouts or bus pads.
4. Property Acquisition for Conservation Purposes
Property acquisition for conservation purposes is not included in CAPCOA’s Handbook and would require technical documentation and substantial evidence to support Program eligibility. This strategy would involve properties to be categorized as VMT efficient (VMT generation is lower than a defined threshold) or VMT inefficient areas (VMT is higher than a defined threshold). If land can be conserved for conservation in VMT inefficient areas, then the Program Administrator can consider designating the land acquisition as a creditgenerating item.
5. Gap Financing for Affordable Infill Housing Development Gap financing for affordable infill housing development is included in CAPCOA’s 2024 Handbook and is a new strategy in mitigating VMT that is supported by Executive Order N-2-24. The order directed the California Department of Transportation (Caltrans) to identify and implement opportunities to leverage transportation funds and projects to support the use of infill housing as an environmental mitigation approach by publishing guidance on the use of affordable infill housing as a mitigation strategy as part of its Transportation Analysis Under CEQA guidance and shall track and report progress at the project level.
729
10 C. Governance
As set forth in Section I, WRCOG is designated as the Program Administrator and shall administer the Program as described in this Program Manual. Following is a description of the duties, roles, and responsibilities for the WRCOG Executive Committee, Executive Director, and Planning Director’s Committee, as they pertain to Program administration.
1. The WRCOG Executive Committee. The WRCOG Executive Committee shall be responsible for reviewing and acting on the following:
a. Approval of the Program Manual and any subsequent amendments; b. Recommendation of changes to the template agreements regarding participation in the Program; and
c. Otherwise having full final decision-making authority over all aspects of the Program.
2. The WRCOG Executive Director. Reporting to the WRCOG Executive Committee, the Executive Director (or their designee) shall be responsible for the following Program activities:
a. Administration of the Program and processing of disputes; b. Conducting ongoing monitoring of credit-generating items; c. Providing consultant support to quantify credit-generating items; d. Providing staff and consultant support to verify credit-generating items and credit users, as necessary.
e. Other related activities as directed by the WRCOG Executive Committee;
f. Executing Participation Agreements, Credit Purchase Agreements, and any amendments thereto;
g. Preparation of an Annual Report for consideration by the WRCOG Executive Committee detailing the status of the Program; and h. Periodic preparation of a comprehensive Program review that includes an assessment of the credit quantification methods and preparation of recommendations on potential Program revisions for consideration by the WRCOG Executive Committee.
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11 4913-5462-9671, v. 1
3. The WRCOG Planning Directors Committee (PDC). The PDC shall be responsible for the following:
a. Providing Program updates and reviews and input on all supporting technical documentation;
b. Recommending revisions to the Program Manual; and
c. Providing additional assistance to the Program, as requested by the WRCOG Executive Committee.
D. Administration
This section lists the key administrative processes involved in the Program.
1. Payment Processing, Credit Disbursement to Credit Users, and Payment to Credit Generators
The Program Administrator shall receive all payments generated by the exchange of credits from Credit Users to Credit Generators for credit-generating items. The Program Administrator shall account for credits and disburse credits and payments for credit-generating items, in accordance with this Program Manual.
2. Credit Generator Opt In
A credit generator must opt in to the Program through execution of a Program Participation Agreement.
3. Credit Generator Opt Out
A credit generator would opt out of the Program by providing written notice to the Program Administrator. The credit generator will be removed from the program within 90 days of providing this notice. Credit generators may not opt out of the program if there are credit generating items for which a credit purchase agreement has been executed but have not been completed.
Exhibit 2 provides an overview of the process through which a credit generator could opt-into the program.
731
Credit Generator announces
interest in program
Program Administrator provides
participation agreement
Credit Generator approves
participation agreement
Program Administrator confirms Credit
Generator participation by approving
and executing participation agreement
WRCOG Voluntary VMT Mitigation Exchange Program
Process for Credit Generators
732
13 4913-5462-9671, v. 1
A Credit Generator who has opted in can submit credit-generating items to the exchange through a Credit-Generating Item Form, provided that the creditgenerating item meets the qualification criteria outlined in this Program Manual (see Section IV). The Credit-Generating Item Form will request the following:
a. Credit-generating item description.
b. Credit-generating item cost. Updates to costs of a credit-generating item already on the credit-generating item list may occur when the Program Administrator updates the list. A credit-generating item that is an operations item may include an annual escalator.
c. Information to demonstrate that the proposed credit-generating item is ready to be utilized or constructed when funding is provided). d. Sufficient information to allow the Program Administrator technical expert to quantify the VMT reduction.
Exhibit 3 outlines the process by which a Credit Generator provides creditgenerating items to the Program.
4. Applications for Credits by Credit Users
a. An application must be submitted by credit users, as noted below, based on the type of credits, with VMT or environmental impact quantified to confirm the need to purchase credits to mitigate an impact. Any application must be submitted by the lead agency or lead jurisdiction where the VMT or environmental impact takes place to verify that credits are needed.
For Transportation Projects: The application must be submitted by the Implementing Agency (the Riverside County Transportation Commission, or any jurisdiction within the Western Riverside County subregion).
For Development Projects: The application must be submitted by the CEQA lead agency.
Credit users are not required to enter into a participation agreement but will enter into contractual agreements for each application. b. The Program Administrator will provide the list of available creditgenerating items that can be purchased by the Credit User. 733
14 Exhibits 4 and 5 document the process by which a Credit User can request credits.
5. Procedure for Disbursement of Mitigation Projects
a. Credits will be distributed on a first-come, first-served basis upon application completion, approval by the Program Administrator, and submittal of payment to the Program Administrator for the selected credit-generating item.
6. Transfer of Credits and Refund Policy
a. A Credit User is allowed to transfer credits to another project that needs to mitigate VMT or another Credit User. The Credit User that is holding the credits must notify the Program Administrator of the transfer for purposes of maintaining an account for the credits.
b. Credit purchases are nonrefundable.
7. Reporting
The Program Administrator will prepare an Annual Report on the Program. 734
Credit Generator identifies potential
credit-generating items using
existing processes
Credit Generator submits
application for credit-generating
items
Program Administrator reviews
Program Administrator quantifies
VMT reduction
Program Administrator formally adds
credit-generating item to Program
If questions about application,
Program Administrator confers with
Credit Generator. Application revised,
if necessary.
If Credit Generator questions VMT
reduction calculation, Program
Administrator confers with Credit
Generator
Credit Generator may choose to
withdraw application during this phase
based on their discretion
WRCOG Voluntary VMT Mitigation Exchange Program
Process for Submitting Credit-Generating Items
735
Applicant Submits Land
Development Project to
Agency for Review and
Approval
CEQA Document is
Prepared
CEQA Document
Determines VMT Impact
Requiring Mitigation
Applicant Submits
Application to Request
Credit
Lead Agency for CEQA
Document Reviews and
Approves Application
for Credit
Program Administrator
Reviews and Approves
Application
Applicant Selects
Credit Generating
Item(s)
Program Administrator
Confirms Selection
Applicant Signs Credit
Purchase Agreement,
Pays for Credits
Program Administrator
Collects Funds
Funds Provided to
Credit Generator with
the Credit Generating
Item
WRCOG Voluntary VMT Mitigation Exchange Program
Process for Private Sector Requests for Credits
736
Public agency initiates
project
CEQA document is
prepared
CEQA document
determines VMT impact
requiring mitigation
Public agency submits
application to request
credit
Program Administrator
reviews and approves
application
Public agency selects
credit-generating
item(s)
Program Administrator
confirms selection
Applicant signs credit
purchase agreement,
pays for credits
Program Administrator
collects funds
Funds provided to
Credit Generator with
the credit-generating
item
WRCOG Voluntary VMT Mitigation Exchange Program
Process for Public Sector Request for Credits
737
18 8. Dispute Resolution Process and Appeals
This section details the types of Program disputes that may arise, the procedures for resolving disputes, and the process for submitting an appeal when a dispute cannot be resolved.
a. Types of Disputes
(i) Credit Generation Disputes
(1) Quantification of Credits: This type of issue arises when there is a dispute regarding the amount of credits assigned to a creditgenerating item. (2) Denial of Potential Credit-Generating Items: This type of dispute arises when a Credit Generator has submitted a credit-generating item that the Program Administrator has determined does not meet the requirements as outlined by this Program Manual.
(3) Noncompletion of Credit-Generating Item: This type of dispute arises when a proposed credit-generating item remains
uncompleted.
(4) Cost Issues: This type of dispute arises when there is either an alleged overstatement or understatement of the cost to complete a credit-generating item.
(ii) Governance Disputes
(1) Credit Allocation: This type of dispute arises when there is a dispute regarding the availability and assignment of credits in the Program. For instance, available credits are available on a firstcome, first-served basis, which may create disputes if two Credit Users desire to utilize the same credit-generating item. b. Procedures
If a qualified person or entity has a Program dispute, they shall first attempt to resolve the dispute informally with Program staff. The staff of that public agency involved in the Program dispute may also participate in such discussions. If the Program dispute remains unresolved after a reasonable attempt to address it at the staff level, the qualified person or entity may submit a written appeal to the WRCOG Executive Director. 738
19 4913-5462-9671, v. 1
c. Appeals
(i) Standing to Appeal
No entity shall have standing to avail themselves of this section, except those entities who have opted into the Program as a Credit Generator, Implementing Agency, or a CEQA lead agency and have an unresolved, appealable issue or matter.
(ii) Appealable Issues and Matters
No issue or matter shall be heard or reviewed under this section unless the issue or matter is appealable and brought forth by an entity with standing to appeal. An issue or matter is appealable, if a qualified person or entity (Appellant) has a good-faith dispute directly related to the Program regarding the following disputes:
o Denial of potential credit-generating items (as defined above) o Quantification of credits (as defined above)
o Credit allocation (as defined above)
o General governance disputes (as defined above)
o Administrative fee for credit-generating items purchased for Transportation Projects by the Implementing Agency (Riverside County Transportation Commission or any jurisdiction within the Western Riverside County subregion).
(iii) Appeal Process
(1) Exhaustion of Dispute Resolution Process
Before filing an appeal pursuant to this section, the Appellant must engage in the informal dispute resolution process, as outlined in Section III.D.9.b. of this Program Manual. If the Appellant does not engage in the dispute resolution process, the matter may not be presented for appeal.
(2) Executive Director Review
(a) The Appellant shall state the basis of their appeal. Only matters raised in the appeal shall be subject to review. Any matter not raised in the appeal shall not be subject to consideration. The purpose of this limitation is to provide 739
20 adequate notice to all parties with respect to the issues on appeal and eliminate the necessity of rehearing matters not subject to challenge.
(b) The Appellant and the WRCOG Executive Director, or
designee, will attempt to hold a meeting within 30 days of the WRCOG Executive Director’s receipt of the appeal. The
WRCOG Executive Director shall then attempt to render a written decision within 15 days of the meeting, unless
otherwise notified.
(c) If the Appellant desires further review from the Program Administrator, the Appellant may submit a written request for review to the WRCOG Executive Committee chair within 90 days.
(3) Committee Review
After the written appeal is received by the WRCOG Executive Committee chair, the item shall be presented to the WRCOG Planning Directors Committee for review. At the request of either Program Administrator staff or the Appellant, the recommendation of the PDC shall be forwarded to the WRCOG Executive Committee for review and action. The Appellant shall receive written notice of the time and place of the hearing. The WRCOG Executive
Committee shall review the report of the PDC regarding the appeal.
At the time set for the hearing, the Appellant may request an opportunity to be heard and to present any relevant evidence supporting the appeal. After considering the evidence presented, the WRCOG Executive Committee shall render a decision that shall be final.
The appeals process is described in Exhibit 6.
740
Appellant submits appeal
WRCOG verifies appeal eligibility
Appellant and WRCOG staff meet
within 30 days to resolve issue
If issue not resolved, appellant
submits written request for review to
WRCOG Executive Committee Chair
Planning Directors Committee
reviews appeal
If requested by either party, WRCOG
Executive Committee hears appeal
and renders final decision
Issue resolved
Issue resolved
Issue resolved
Appellant updates appeal
If appeal is not eligible or
additional information required,
WRCOG notifies appellant.
Appellant withdraws appeal
WRCOG Voluntary VMT Mitigation Exchange Program
Appeals Process
741
22 9. Liability Considerations
a. Contractual Enforcement between Program Administrator and Credit Generator
To participate in the Voluntary VMT Exchange Program, Credit Generators will be required to enter into a Participation Agreement with the Program Administrator. A template of the Participation Agreement template is included as Appendix A to this Program Manual. The Participation Agreement will address, among other items, the following:
− The rights and responsibilities of Credit Generators who submit credit-generating items.
− That credit-generating items meet the criteria outlined in this Program Manual.
− Notification to remove credit-generating items if other funding sources are attained.
− The requirement that credit-generating items can only been removed with approval of the Program Administrator.
− The exclusion of credit-generating items from being used in multiple mitigation programs or mitigation for another project requiring VMT mitigation
− A means of enforcement if issues arise with credit-generating items.
b. Contractual Enforcement between Program Administrator and Credit User
c. To participate in the Program, Credit Users will be required to enter into a Purchase Agreement, separately, with only the Program Administrator when purchasing credits for a specific credit-generating item. A copy of the Purchase Agreement template is included in this Program Manual as Appendix B.
742
23 4913-5462-9671, v. 1
10. Best Practices by Program Administrator for Pending VMT CreditGenerating Items if Development Project/Transportation Project is subject to CEQA Litigation for Extended Period of Time
The Credit User for this Program assumes all risk. As is the case for any development or transportation project, there is always the possibility that protracted litigation could introduce a substantial delay in the timing between when a CEQA lead agency approves a
development/transportation project and the time when the project is actually built.1
In the event of protracted litigation delays, collaboration between the Program Administrator and the CEQA lead agency for the project approvals should occur to confirm the status of litigation resolution.
Until and unless the litigation is resolved, any mitigation imposed as part of the project approval would remain binding for the lead agency. Thus, absent a supplemental process by the CEQA lead agency to amend, delete, or replace the VMT credit-generating item that was imposed as binding mitigation, the VMT credit-generating item would be treated as “belonging” to the CEQA lead agency and would be unavailable for use by another agency.
In the event that litigation results in a rescission of the development/transportation project approvals, or in the event that the CEQA lead agency rescinds the project approvals for other reasons, the credits attained by the development/transportation project in question may be transferred to another Credit User per the provisions in III.D.7.a. 1 To be clear, the mere filing of CEQA litigation does not preclude a public agency or developer from proceeding with a project. Once the approvals are issued, those approvals are valid and can be exercised even in the face of litigation. However, proceeding in the face of litigation is done at the agency or applicant’s own risk. Thus, CEQA petitioners may choose to pursue court injunctions to affirmatively stop development from proceeding at any point during the litigation’s pendency. Similarly, an adverse ruling from a court on the merits of the case could result in the rescission of approvals or other relief that would cause any project activity to cease. Because of these risks and costs, sometimes proponent agencies and/or applicants choose not to proceed with construction of approved projects, until and unless the litigation is resolved in their favor. 743
24 11. Administrative Costs.
The Program Administrator is allowed to expend a maximum of 4 percent of funds generated for the exchange of credits from the Credit User to the Credit Generator for the credit-generating item. The maximum 4 percent of funds will be used solely to carry out the responsibilities to implement and administer the Program. Eligible expenses will include staff salaries, consultant expenses, legal fees, and agency overhead expenses needed to support the Program. Through the development of its Annual Budget, WRCOG will provide a regular update regarding program revenues and expenses.
12.Relationship to Other VMT Mitigation Programs
Agencies who elect to participate in the Voluntary VMT Mitigation Program can also elect to participate in other State, regional, and local VMT Mitigation Programs at their discretion. Additionally, participation in the Voluntary VMT Mitigation Program does not preclude a Credit Generator from operating their own program.
The only limitation related to the participation in multiple programs is that a Credit Generator may not submit the same Credit-generating item to multiple programs. Credit Generators will be asked to certify that any Credit-generating item submitted to the Voluntary VMT Mitigation Program has not been submitted to any other program.
E. Exchange Menu
Credit-generating items will be presented in a menu that will include the VMT-reducing project(s) and/or program(s), the total cost to implement, and the quantified VMT reduction potential of each. The Program Administrator will compile the menu from submitted and accepted Credit-Generating Item Forms from the agencies that opt into the program. This menu will be provided to Credit Users.
13.Non-Exhaustive List of Sample Non-Exclusive Mitigation Projects This table illustrates how credit-generating items might be listed in the Program for purchase by Credit Users.
744
25 4913-5462-9671, v. 1
Sample Project VMT Credit Cost
Purchase of transit
passes
XX VMT reduced per day
per transit pass
purchased
XX per transit pass
Implement bicycle lane XX VMT reduced per day
once constructed
XX (capital cost)
Implement sidewalk XX VMT reduced per day
once constructed
XX (capital cost)
14.Outreach Process to Solicit Mitigation Projects
On a regular basis, the Program Administrator will solicit projects from Credit Generators to serve as credit-generating items. The Program Administrator will determine which category in Section III.B the item will fall into. Once approved, the Credit-Generating Item will be added to the Exchange Menu.
15.Ongoing Review of Mitigation Projects
To ensure credit-generating items are still active and eligible for generating credit, the VMT Program Administrator will periodically review the projects included in the Exchange Menu and may request updates from Credit Generators.
As part of this review, the Program Administrator shall request updated cost estimates for any credit-generating item from the Credit Generators on at least an annual basis. Credit generators may also provide updated cost information to the Program Administrator for the specific credit-generating item more frequently at their discretion.
F. Participants
The following agencies make up an initial list of Credit Generators eligible to opt in to the Program. Once a Credit Generator has opted in, they are eligible to opt out at any time, provided they follow the protocol set forth in this Program Manual. ▪ Riverside Transit Agency (RTA)
▪ Riverside County Transportation
Commission (RCTC)
▪ Western Riverside County
Regional Conservation Authority
(RCA)
▪ County of Riverside
▪ City of Banning
▪ City of Beaumont
▪ City of Calimesa
▪ City of Canyon Lake
▪ City of Corona
745
26 ▪ City of Eastvale
▪ City of Hemet
▪ City of Jurupa Valley
▪ City of Lake Elsinore
▪ City of Menifee
▪ City of Moreno Valley
▪ City of Murrieta
▪ City of Norco
▪ City of Perris
▪ City of Riverside
▪ City of San Jacinto
▪ City of Temecula
▪ City of Wildomar
IV. QUALIFICATION CRITERIA FOR CREDIT-GENERATING ITEMS
Following are the criteria for approval of credit-generating items:
1. The Credit Generator has a Participation Agreement on file with the Program Administrator;
2. The proposed credit-generating item has provided a cost estimate to construct or implement the credit-generating item and enough clear, consistent, and transparent information to quantify VMT reduction potential. Information needed to quantify VMT reduction potential will vary by credit-generating item. The quantification of VMT credits generated on the proposed credit-generating item will be calculated by a technical expert provided by the Program Administrator. Refer to Appendix C for details on what information is required.
V. QUANTIFICATION OF CREDIT-GENERATING ITEMS
A. General Principles for Credit Quantification
Quantification of potential VMT reduction of credit-generating items should be based on the best available data and resources. Quantification should be clearly and consistently documented with all sources cited.
Credit-generating items with quantified VMT reduction in the latest version of the Handbook for Analyzing Greenhouse Gas Emission Reductions, Assessing Climate Vulnerabilities, and Advancing Health and Equity (GHG Handbook) (CAPCOA 2024) would be utilized as the basis for the quantification of many of the anticipated creditgenerating items. This would include mitigation projects, such as constructing a bike lane or introducing a new transit line. In the future, if a more robust or up-to-date technical resource is available and accepted as the industry standard for VMT reduction quantification, this should be referenced for credit quantification.
More innovative or programmatic strategies that are not quantified in the GHG Handbook would require a customized approach based on the credit-generating item.
Customized calculations using alternative data sources, like the Riverside County Transportation Model (RIVCOM), or tracking/surveying participants would be used to 746
27 4913-5462-9671, v. 1
determine how much VMT would be reduced. Innovative or programmatic strategies subject to customized calculations would include mitigation projects or programs, such as The Nature Conservancy partnerships or a land exchange.
All quantification will be prepared and reviewed by a qualified technical expert with relevant experience through the Program Administrator.
B. Standardized Calculation Methods
Each credit-generating item may utilize a different methodology depending on whether the GHG Handbook is the appropriate resource or if a customized approach is required. A quantification form(s) to quantify the number of credits an item generated will be provided with the intent for calculations to be standardized. 747
28 VI. APPENDICES
APPENDIX A.
Template agreement to participate in the Program, for Credit Generators to provide credit-generating items to the Program, and for the Program Administrator to administer the Program.).
APPENDIX B.
Template agreement between a Credit User and the Program Administrator to purchase credits for a specific project/program.
APPENDIX C.
Calculation worksheets for submission of a credit-generating item. 748
Appendix A
Template Credit Generator Participation
Agreement
74962
20323.00152\42222704.6 -1-
VOLUNTARY VMT EXCHANGE PROGRAM
PARTICIPATION AGREEMENT
This Participation Agreement (“Agreement”) is made as of _________, 2025 (“Effective Date”), by and between the Western Riverside Council of Governments, a California public agency (“WRCOG”) and [***INSERT NAME***], [***INSERT TYPE OF ENTITY***] (“Participant”). WRCOG and Participant are sometimes individually referred to as “Party” and collectively as “Parties”.
RECITALS
A. Before a California public agency issues a discretionary approval that authorizes an action with potential environmental impacts, the agency must first comply with the California Environmental Quality Act (“CEQA”) and disclose potential impacts to the environment.
B. The CEQA process may involve the imposition of “mitigation measures” which help to reduce a project’s potentially significant impacts.
C. The manner in which transportation effects are analyzed under CEQA changed dramatically when Senate Bill 743 (“SB 743”) was adopted in 2013. SB 743 and its implementing regulations require that transportation impacts throughout the state no longer be measured in terms of vehicle delay, but instead in terms of how many Vehicle Miles Traveled (“VMT”) a project generates.
D. Transportation demand management strategies have traditionally been utilized to change travel behavior as a way of reducing VMT. These strategies are generally most effective in urban areas where a project site is accessible through multiple travel modes offering similar travel times and convenience.
E. However, these strategies are less effective in low-density suburban and rural areas, such as Western Riverside County. As a result, Western Riverside County needs a coordinated regional approach.
F. To address these needs, WRCOG has established a Voluntary VMT Exchange Program (the “Program”) that allows Credit Users to agree to fund a predetermined VMTreducing project submitted by a Credit Generator.
G. Participant desires to participate in the Program as a Credit Generator.
H. The purpose of this Agreement is to outline the terms and conditions of the Participant’s voluntary participation in the Program.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
AGREEMENT
1. Incorporation of Recitals. The recitals above are true and correct and are hereby incorporated herein by this reference.
75063
20323.00152\42222704.6 -2-
2. Definitions.
(a) “Credit” shall mean a VMT reduction credit.
(b) “Credit Generator” shall mean an entity that implements some action which produces a Credit. For the purposes of this Agreement, Participant is a Credit Generator. (c) “Credit Generating Item” shall mean a specific project or action which has produced or may produce a Credit.
(d) “Credit User” shall mean a land development or transportation project administrator that needs a Credit for the purpose of CEQA mitigation. (e) “Program Manual” shall mean the Western Riverside Council of Governments Voluntary VMT Exchange Program Implementation Manual as may be amended from time to time.
3. Term and Termination
(a) Term. The term of this Agreement shall commence on the Effective Date and shall remain in effect until terminated in accordance with Section 3(b) of this Agreement. (b) Termination.
(i) Termination for Convenience. Either Party may terminate this Agreement upon three (3) months written notice, except that this Agreement shall remain in effect as to any Credit-Generating Item for which Credit Purchase Agreement has been executed but not completed. However, in the event that there are any Credit-Generating Items submitted by Participant that remain which are subject to a Credit Purchase Agreement, Participant may only terminate this Agreement upon the completion of such Credit-Generating Items. (ii) Termination for Breach. WRCOG reserves the right to terminate this Agreement in the event of Participant’s violation of this Agreement and non-compliance with the Program Manual. Upon receipt of written notice from WRCOG regarding the violation, Participant shall have thirty (30) days to correct the violation. Failure to cure the violation within the thirty (30) day period shall result in the termination of this Agreement.
4. Participant Responsibilities.
(a) Submission of Credit-Generating Items. Upon execution of this Agreement, Participant can then submit Credit-Generating Items for use in the Program by utilizing a Credit-Generating Item Form as further described in the Program Manual. CreditGenerating Items are subject to approval by WRCOG as the Program Administrator pursuant to the process as outlined in the Program Manual. .
(i) Qualification and Accuracy of Information. Participant agrees that any Credit-Generating Items that are submitted to the Program shall provide the necessary information as provided in the Program Manual Section III.D.4. In addition, Participant is solely 75164
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responsible for providing accurate information regarding their Credit-Generating Items submitted. Inaccurate information may result in removal of the Credit-Generating Item from the Program.
(ii) Credit User Agreement. Upon the selection of a Credit-Generating Item submitted by Participant by a Credit User, the WRCOG shall enter into a Credit Purchase Agreement with the Credit User. The Credit Purchase Agreement shall substantially be in the form as presented in the Program Manual.
(iii) Avoidance of Duplicate Mitigation. Participant agrees to that any submitted Credit-Generating Items submitted to WRCOG shall not be used to satisfy multiple instances of mitigation. This includes, but is not limited to, placing Credit-Generating-Items on multiple exchanges at once.
(iv) Disputes. In the event of any disputes regarding a CreditGenerating Item occur under this Agreement, Participant agrees to follow the dispute procedures as outlined in Program Manual.
(v) Removal of Credit-Generating Items. Participant understands and agrees that Credit-Generating Items placed into the Program shall remain in the Program unless otherwise approved in writing by WRCOG.
(vi) Credit Generating Item Completion. To the extent practicable, Participant shall ensure that the Credit-Generating Item is carried out or completed once it has been assigned to a Credit User and Participant has received payment for the Credits. Participant shall take all steps reasonably necessary to ensure that the Credit-Generating Item is carried out or completed. Upon completion of the Credit-Generating Item, Participant shall provide WRCOG with a completion form.
(b) Laws and Regulations. Participant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of its obligations under this Agreement. In addition, Participant comply with the Program Manual, as may be amended from time to time.
5. WRCOG Responsibilities.
(a) Program Administration. WRCOG agrees to administer the Program in accordance with the Program Manual, as may be amended from time to time. (b) Allocation of Funds. WRCOG shall collect and allocate funds from Credit Users when Participant’s Credit Generating Item is selected. (c) Credit Transfer. Following the execution of the Credit Purchase Agreement by WRCOG and the Credit User, WRCOG will transfer the credits from the program to the Credit User for their use.
(d) Technical Assistance. WRCOG agrees to provide technical assistance to quantify the potential amount of credits a Credit Generating Item produces, ensure compliance 75265
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with Program Manual, and take appropriate measures to address any discrepancies or concerns with the submission of Credit Generating Items.
(e) Transparency. WRCOG agrees to maintain transparency in all Programrelated matters, including calculation methodologies, maintenance of the exchange list, and distribution of credit-generating items, ensuring fair and equitable treatment of all participants.
6. Indemnity.
(a) To the fullest extent permitted by law, Participant shall defend, at Participant's sole cost and expense, indemnify, protect, and hold harmless WRCOG, its officers, directors, employees, and agents (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to or death of persons (Participant's employees included), for damage to property, including property owned by WRCOG, or from any violation of any federal, state, or local law or ordinance, alleged to be caused by the acts, omissions or willful misconduct of Participant, its officers, directors, employees or agents in connection with or arising out of the construction and/or operation of any Credit-Generating Items submitted to the Program by Participant as well as performance of Participant’s obligations under this Agreement. Such indemnity shall include any actions brought under the California Environmental Quality Act, the National Environmental Policy Act or other related action related to a Credit-Generating Item. (b) To the fullest extent permitted by law, WRCOG shall defend, at WRCOG’s sole cost and expense, indemnify, protect, and hold harmless Participant, its officers, directors, employees, and agents (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to or death of persons (WRCOG’s employees included), for damage to property, including property owned by Participant, or from any violation of any federal, state, or local law or ordinance, alleged to be caused by the negligent acts, omissions or willful misconduct of WRCOG, its officers, directors, employees or agents in connection with or arising out of the administration of the Program and the performance of its obligations under this Agreement. (c) The indemnification and defense obligations of this Agreement shall survive its expiration or termination.
7. Insurance. During the term of this Agreement and for one (1) year thereafter, Participant shall maintain Commercial General Liability. The Commercial General Liability insurance policy limits shall be not less than One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability, and Two Million Dollars ($2,000,000) in aggregate. Such insurance shall cover Participant’s obligations under this Agreement and the actions of its employees, agents and subcontractors. All policies shall be written by reputable insurance companies with a Best's policyholder rating of not less than AVII. 75366
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Upon execution of this Agreement, Participant shall provide a Certificate of Insurance evidencing the insurance required herein. In no event shall the limits of any policy be considered as limiting the liability of Participant under this Agreement.
8. Miscellaneous Terms.
(a) Third Party Rights. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the Participant and WRCOG. (b) Notice. Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to the following addresses and shall be effective upon receipt thereof:
WRCOG:
Western Riverside Council of Governments
3390 University Avenue, Suite #200
Riverside, CA 92501
Attn: Executive Director
PARTICIPANT:
[***INSERT NAME, ADDRESS &
CONTACT PERSON***]
(c) Entire Agreement. This Agreement represents the entire understanding of WRCOG and Participant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each Party acknowledges that no representations, inducements, promises, or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This is an integrated Agreement. (d) Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect.
(e) Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each Party to this Agreement. However, Participant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of WRCOG. Any attempted assignment without such consent shall be invalid and void. (f) Non-Waiver. The delay or failure of either Party at any time to require performance or compliance by the other Party of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. The 75467
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waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
(g) Time of Essence. Time is of the essence for each and every provision of this Agreement.
(h) Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Venue shall be in the County of Riverside.
(i) Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain, or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
(j) Amendments. Only a writing executed by all of the Parties hereto or their respective successors and assigns may amend this Agreement. (k) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one single Agreement.
(l) Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that by doing so, the Parties hereto are formally bound to the provisions of this Agreement. (m) Electronic Signature. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR VOLUNTARY VMT EXCHANGE PROGRAM
PARTICIPATION AGREEMENT
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
WRCOG
WESTERN RIVERSIDE COUNCIL OF
GOVERNMENTS
APPROVED BY:
Dr. Kurt Wilson
Executive Director
APPROVED AS TO FORM:
Best Best & Krieger LLP
General Counsel
PARTICIPANT
[***INSERT NAME***]
APPROVED BY:
[***INSERT NAME***]
[***INSERT POSITION***]
APPROVED AS TO FORM:
[INSERT NAME HERE]
General Counsel
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