Agenda packet — Colton City Council, June 4, 2024 (part 1 of 2)

1 CITY OF COLTON
City Hall, Council Chambers
650 N. La Cadena Drive
Colton, CA 92324
Website: www.coltonca.gov

Mayor Frank J. Navarro
Council Members:

David J. Toro – District 1
Kelly J. Chastain – District 2
Dr. Luis S. Gonzalez – District 3
John R. Echevarria – District 4

City Treasurer Aurelio De La Torre

City Manager William R. Smith
City Attorney Carlos Campos
Deputy City Clerk Stephanie M. Vargas

AGENDA

CITY COUNCIL,

COLTON UTILITY AUTHORITY, COLTON PUBLIC FINANCING AUTHORITY,

COLTON HOUSING AUTHORITY

REGULAR MEETING
TUESDAY, JUNE 4, 2024 – 6:00 P.M.

CITY HALL, COUNCIL CHAMBERS
CLOSED SESSION - 5:00 p.m.

NO CLOSED SESSION

RULES OF DECORUM

To help conduct the business of the City Council in an orderly fashion, the City Council has adopted rules pertaining to decorum and order, as provided for in the City Council Manual of Procedure. The City Council will strictly enforce these rules in order to allow full expression of ideas and opinions by councilmembers, staff and the public. Generally, the City's rules of decorum prohibit comments or actions which willfully disrupt the meeting. All remarks and questions shall be addressed to the Council as a whole and not to any particular member. No individual Councilmember or member of the City staff shall be questioned without first obtaining permission from the Presiding Officer. The City Council asks that all persons - including councilmembers, staff and the public - act and speak respectfully.

2 OPEN SESSION
6:00 P.M.

OPEN SESSION CALLED TO ORDER
INVOCATION Pastor Eric Strutz - The Door Church
FLAG SALUTE Veterans of Foreign Wars (VFW) Commander Bernie Moyeda

ROLL CALL

CEREMONIAL MATTERS
Presentations, Awards, Proclamations
• Proclamation - Colton Teachers Appreciation Day
• Certificates - Teacher Recognition
• Recognition - San Bernardino County Science and Engineering Fair Student Winners from the City of Colton

MAYOR AND COUNCIL ITEMS

GIFT DISCLOSURES
Prior to rendering a decision in any proceeding involving a license, permit, contract or other entitlement pending before the City Council, any Council Member who has received been promised a gift or gifts aggregating $50.00 or more in value within the preceding twelve months from a party or participant in the proceeding shall disclose that fact either orally or in writing during open session. This disclosure shall be made part of the official public record of the proceeding, either as part of the minutes of the meeting or as a separate writing filed with the city. (CMC Section 2.04.030) AB 1234 ORAL REPORTS
Members of the City Council shall provide brief reports on meetings attended at the expense of the city. (GC Section 53232.3(d))

APPOINTMENTS

MAYOR AND COUNCIL DISCUSSION ITEMS

3 PUBLIC HEARINGS

To speak on public hearing items, it is requested that you obtain a card from the City Clerk and complete it by noting the agenda item number, as well as whether you are in favor, opposition or neither, and give it to the City Clerk. The applicant will be allowed 5 minutes to address the Council and all other persons will be allowed 3 minutes; provided, however, that the presiding officer shall have certain discretion to extend or limit time as provided for in the City Council Manual of Procedure.

(1) Appeal of Modification of Zoning Entitlement - Ecology Recycling Services - TIME AND PLACE FIXED TO CONSIDER THE CONTINUED PUBLIC HEARING FROM MAY 7, 2024, APPROVING A RESOLUTION ADOPTING DENYING AN APPEAL AND UPHOLDING THE PLANNING COMMISSION’S DECISION OR GRANTING THE APPEAL OF THE PLANNING COMMISSION DECISION MODIFYING ZONING ENTITLEMENTS (CASE INDEX NOS.

C-5-86, D-55-01, DAP-000-794, DAP-000-999, DAP-001-083, AND DAP-001-227) CONDITION NO. 11 (FILE INDEX NO.: DAP23-0010) TO RESTRICT ONSITE MATERIALS STORAGE TO 16 FEET FOR AN EXISTING METAL SHREDDING AND RECYCLING USE ON PROPERTY MEASURING APPROXIMATELY 19.39 -ACRE SITE WITHIN THE M-2 (HEAVY INDUSTRIAL) ZONE (FILE INDEX DAP24-0018), RESOLUTION NO. R-37-24, OR RESOLUTION NO. R-38-24.
[Staff Person: Heidi Duron]

***Continued Item from the May 7, 2024 Regular Council Meeting*** Staff Presentation.

Public Comment.

After hearing public comment, on motion by Councilmember __________, seconded by Councilmember _________, the Public Hearing is terminated.

MOTION __________ SECOND __________

(2) Club 215 Billboard Agreement - DAP24-0020 - TIME AND PLACE FIXED TO CONSIDER A PUBLIC HEARING TO

APPROVE AND ADOPT A RESOLUTION APPROVING AMENDMENT OF APPROVED BILLBOARD PUBLIC BENEFIT AGREEMENT (FILE INDEX #DAP-001-425) FOR OPERATION OF A PROPOSED OFF-PREMISES

ADVERTISING ELECTRONIC CHANGEABLE COPY (BILLBOARD) DOUBLE -FACED FREESTANDING SIGN AS A "GATEWAY SIGN" FOR THE SOUTH ENTRY TO THE CITY ON THE INTERSTATE 215 FREEWAY ON PROPERTY LOCATED AT 2680 S. LA CADENA DRIVE (FILE INDEX #DAP24-0020), RESOLUTION NO. R-47-24. [Staff Person: Heidi Duron]
Mayor announces the Public Hearing Open.

City Clerk submits the Affidavit of Publication and reports on protests or objections thereto.

Staff Presentation.

Public Comment.

After hearing public comment, on motion by Councilmember __________, seconded by Councilmember _________, the Public Hearing is terminated.

MOTION __________ SECOND __________

4 BUSINESS ITEMS
There are no Business Items.

PUBLIC COMMENT Limit 3 Minutes
This is the portion of the meeting specifically set aside to invite your comments regarding Consent Calendar items and other general comments about matters not on the agenda; however, any matter that requires action will be referred to staff for investigation and report at a subsequent Council meeting. The Council is prohibited by law from discussing or taking immediate action on items during this public comment period.

Persons desiring to submit paperwork to the City Council Members shall provide copy of any paperwork to the City Clerk for the Official Record.

Speakers will be limited to 3 minutes; provided, however, that the presiding officer shall have certain discretion to extend or limit time as provided for in the City Council Manual of Procedure.

Please state your name and your City of Residence before providing your comment.

CONSENT CALENDAR
All matters listed under the Consent Calendar are considered by the City Council to be routine and will all be enacted by one motion. There will be no separate discussion of these items prior to the time the City Council votes on the motion, unless councilmembers, staff or the public request that specific items be discussed and/or removed for separate discussions or action.

(3) Warrants - Approve voucher numbers 212273 to 212369 dated 05/02/2024 and totaling $1,466,635.26; wires dated 05/06/24 and totaling $2,916,095.10; voucher numbers 212370 to 212466 dated 05/09/2024 and totaling $535,325.36 and a payroll disbursement listing dated 04/13/2024 to 04/26/2024 totaling $1,172,137.08.
[Staff Person: Stacey Dabbs]
(4) City Treasurer's Report - Receive and File City Treasurer's Report for March 2024. [Staff Person: Aurelio De La Torre]
(5) Calling the General Municipal Election for November 5, 2024 - Calling and Giving Notice of a General Municipal Election to be Held on Tuesday, November 5, 2024; Requesting the County of San Bernardino to Render Specified Services; and Adopting Regulations for Candidates for Elective Office, RESOLUTION NO. R - 49-24 and Approve and Adopt a Resolution Adopting Regulations for Candidates for Elective Office Pertaining to Candidate's Statements, RESOLUTION NO. R-50-24, Submitted to the Voters at an Election to be Held on Tuesday, November 5, 2024, RESOLUTION NOS. R-49-24 & R-50-24. [Staff Person: Stephanie M. Vargas]
(6) Contract Award - DM Contracting, Inc. - Award a Contract to DM Contracting, Inc. for the Fire Station 212 Driveway Replacement Project.
[Staff Person: Brian Dickinson]

5 (7) Contract Award - Krieger and Stewart Inc. - Approve Contract Award to Krieger and Stewart Inc. for the Montecito Reservoir Project.
[Staff Person: Brian Dickinson]
(8) Contract Award – Matich Corporation – Approve and Adopt the Award of Contract to Matich Corporation for FY 23/24 Asphalt Paving Project in the Amount of $2,414,229, RESOLUTION NO. R-48-24. [Staff Person: Brian Dickinson]
(9) DBE Participation Level - Federal Fiscal Year 2024/2025 - Approve and Adopt a Resolution Authorizing the Annual Anticipated DBE Participation Level (AADPL) for Federal Fiscal Year 2024/2025, RESOLUTION R-44-

24. [Staff Person: Brian Dickinson]
(10) Purchase - Fairview Ford - Approve Purchase of Vehicle from Fairview Ford. [Staff Person: Charles Berry]
(11) Purchase - JDC Industrial Equipment Specialists - Approve Purchase of Skylift Mini Derrick Super 6000 Hybrid Machine from JDC Industrial Equipment Specialists. [Staff Person: Charles Berry]
(12) Second Reading of Ordinance No. O-05-24 - Approve Second Reading of an Ordinance of the City Council of the City of Colton California Amending Various Sections of Title 18 of the Colton Municipal Code to Permit and Regulate Electric Vehicle Charging Stations and Hydrogen Vehicle Charging Stations Pursuant to California Government Code Section 65850.7, ORDINANCE NO. O-05-24. [Staff Person: Stephanie M. Vargas]

MAYOR AND COUNCIL ORAL REPORTS AND COMMENTS
Comments from Mayor and Council on various issues and activities throughout the community. Comments shall be limited to 5 Minutes per speaker.

CITY MANAGER'S REPORTS

ADJOURNMENT

6 I, Stephanie Vargas, the Deputy City Clerk, hereby certify that a true and correct, accurate copy of the foregoing agenda was posted , at least seventy-two (72) hours prior to the meeting per Government Code 54954(a), at the following locations:

City of Colton City Hall 650 N. La Cadena Drive
City of Colton Website, www.coltonca.gov <http://www.coltonca.gov>

PROCEDURES FOR ADDRESSING CITY COUNCIL

For the Official Record, it is requested that you obtain a card from the Deputy City Clerk and complete it by noting a specific item number on the Agenda, if applicable, or you can identify the subject that you wish to address under the Public Comment portion of the Agenda. The City Council encourages public input on all City issues within the Rules of Decorum. Speakers will be limited to the time periods provided on the Agenda; provided, however, that the presiding officer shall have certain discretion to extend or limit time as provided for in the City Council Manual of Procedure.

RULES OF DECORUM

NOTICE TO PUBLIC

Staff reports or other written documentation relating to each item referred to, on the Agenda, are available for public inspection at the following locations: Office of the City Clerk, 650 N. La Cadena Drive, Colton, CA; City of Colton Public Library, 656 9 th St., Colton, CA; or the City of Colton Internet Website, www.coltonca.gov. Any person having questions concerning any item on the Agenda may call the City Clerk at 370 -5191 to make inquiry concerning the nature of the item described on the Agenda. The City Clerk shall direct inquiries to the appropriate office.

All matters listed under the Consent Calendar are considered by the City Council to be routine and will all be enacted by one motion. There will be no separate discussion of these items prior to the time the City Council votes on the motion, unless councilmembers, staff or the public request that specific items be discussed and/or removed for separate discussions or action.

7 In compliance with the American with Disabilities Act, if you need special assistance to participate in a City Meeting, please contact the City Clerk’s Office at 909 -370-5001. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.

LEGAL CHALLENGES

If you challenge in court any discussion or action taken concerning an item on this Agenda, you may be limited to raising only those issues you or someone else raised during the meeting or in written correspondence delivered to the City at or prior to the City's consideration of the item at the meeting.

MANUAL OF PROCEDURE

The City Council adopted its Manual of Procedure pursuant to Resolution No. R-41-18. Copies are available in the Office of the City Clerk.

ITEM NO. 1

STAFF REPORT

DATE: JUNE 4, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: HEIDI DURON, DEVELOPMENT SERVICES DIRECTOR SUBJECT: TIME AND PLACE FIXED TO CONSIDER A PUBLIC HEARING TO

APPROVE AND ADOPT A RESOLUTION OF THE CITY COUNCIL

OF THE CITY OF COLTON DENYING AN APPEAL AND
UPHOLDING THE PLANNING COMMISSION’S DECISION OR

GRANTING THE APPEAL OF THE PLANNING COMMISSION

DECISION MODIFYING ZONING ENTITLEMENTS (CASE INDEX
NOS. C-5-86, D-55-01, DAP-000-794, DAP-000-999, DAP-001-083, AND DAP-001-227) CONDITION NO. 11 (FILE INDEX NO.: DAP23- 0010) TO RESTRICT ONSITE MATERIALS STORAGE TO 16 FEET

FOR AN EXISTING METAL SHREDDING AND RECYCLING USE
ON PROPERTY MEASURING APPROXIMATELY 19.39-ACRE SITE
WITHIN THE M-2 (HEAVY INDUSTRIAL) ZONE (FILE INDEX
DAP24-0018), RESOLUTION NO. R-37-24, OR RESOLUTION NO. R- 38-24.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

Adopt Resolution Nos. R -37-24 denying an Appeal of Modification of Zoning Entitlements (Case Index Nos. C-5-86, D-55-01, DAP-000-794, DAP-000-999, DAP-001-083, and DAP-001- 227) Condition No. 11 of DAP23-0010 to allow a 35 -feet instead of 16 -feet for onsite materials storage height upholding the Planning Commission’s decision . ( City Council File Index No.

DAP24-0018); or

Adopt Resolution No. R -38-24 granting Appeal and overturning the Planning Commission decision Modification of Zoning Entitlements (Case Index Nos. C-5-86, D-55-01, DAP-000-794, DAP-000-999, DAP-001-083, and DAP-001-227) approving Condition No. 11 of DAP23-0010 changing maximum 16 -feet onsite storage of materials to allow 35 -feet onsite materials storage

1.1 Packet Pg. 8
Staff Report to the Mayor and City Council
Appeal of Modification of Zoning Entitlement - Ecology Recycling Services June 4, 2024

Page 2 ends

height on 19.39-acre site located in the M -2 (Heavy Industrial) Zone. (City Council File Index No. DAP24-0018)

BACKGROUND

At the request of the Planning Commission, staff ha s been reviewing Ecology Recycling / AIM existing operations, building permit approvals, and compliance with past City approvals dating back to September 19, 1986, because of complaints received by Planning Commission Members.

Staff made several presentations to the Planning Commission between July 25 to September 12, 2023, providing the Commission with a detail of the operations, conditions of approval, and permit status.

The Chair and Commission members requested more information regarding the status of compliance with previous approvals and code enforcement actions in order to respond to questions from the public and to address any ongoing non -compliance issues. The specific Zoning Code section that provides the authority for the Commission to review the zoning entitlements is in Title 18 (Zoning Code), Section 18.58.060 (CUPs) which states the following:

“The Planning Commission may periodically review any Conditional Use Permit or Minor Conditional Use Permit to ensure that it is being operated in a manner consistent with conditions of approval or in a manner which is not detrimental to the public health, safety or welfare, or materially injurious to properties in the vicinity. If, after review, the Commission deems that there is sufficient evidence to warrant a full examination, then a Public Hearing date shall be set.”

On September 12, 2023, the Planning Commission held their last zoning entitlement review of the existing metal shredding and recycling use at 785 East M Street. Concerns were heard from both the Planning Commission and residents of the adjacent residential neighborhood. The main concerns included:
• Hours of Operation from 5:00 a.m. to 5:00 p.m., Monday – Sunday, were the cause of complaints.
• Complaints related to Noise and Vibration were voiced in the dropping of steel plates when placed in rail cars at early hours of the day.
• Complaints about odors and more noise complaints taking place at 5:00 a.m. • Complaints about pile heights not conforming with maximum 16 -feet condition of approval.
• Complaints about noncompliance with Water Resources Board and other agency inspection requirements.
• Concerns that the project was not in compliance with previous Commission approvals.

1.1 Packet Pg. 9
Staff Report to the Mayor and City Council
Appeal of Modification of Zoning Entitlement - Ecology Recycling Services June 4, 2024

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The Planning Commission directed staff to set a public hearing for review and possible Modification and/or Revocation of the zoning entitlements based on several concerns voiced by the Commission and heard from the public as related to the operation of the business, compliance with City approved conditions of approval, and compliance with County, State and Federal inspections of the metal shredding and recycling facility. The Commission w as also in favor of holding a neighborhood meeting with the residents prior to the public hearing.

On October 4, 2023, Staff held a neighborhood meeting at San Salvador Church to discuss the Ecology Recycling Services/AIM Project. Attendees expressed several concerns similar to what was expressed during the Planning Commission review s that took place from July through September 2023.

After holding three public hearing meetings on the review of the metal shredding and recycling services, on March 26, 2024 the City of Colton Planning Commission approved Modification of Zoning Entitlements (Case No. DAP23 -0010) for Ecology Recycling Services / AIM (American Iron and Metal) C onditional Use Permit and Architectural and Site Plan Review pertaining to the existing metal shredding / recycling use and Variance to allow an 18 -feet high perimeter fence along the east side of the property on property measuring approximately 19.39 acres of land within the M-2 (Heavy Industrial) Zone.

The Commission made a motion and a second to approve Planning Commission Resolutions Nos. R -02-24 and R -04-24, at which time the Commission voted 4 -0-1 (Commissioner Escarcega was on an excused absence) approving the project. Attachment 1 includes Planning Commission adopted Minutes of the March 26, 2024, Planning Commission Meeting (Attachment 1). The representatives from Ecology Recycling Services agreed with all the new and modified conditions of approval, except for condition #11 relating to the storage of pile heights. The request from Ecology Recycling Services was to increase the pile height from 16 - feet to 35-feet. Attachment 2 includes the approved Resolutions for the project – Resolution No.

R-04-24 includes Condition of Approval No. 11 and Resolution R-02-24 approved the Variance for the fence height on the eastern boundary of the property.

On April 4, 2024, the applicant submitted an Appeal of Planning Commission’s denial only for changing Condition #11 from 16 -feet to 35 -feet. The appellants appeal letter is attached with their reason to increase the pile height (Attachment 3).

A summary of past City Council and Planning Commission actions is provided in Attachment 4.

ISSUES/ANALYSIS

The appeal relates to two conditions of approval of the metal shredding and recycling use at 785 East “M” Street and both of these areas were originally approved in 2006 . The amount of material processed per day was modified in 2013. The first area relates to Condition of Approval No. 11 related to restricting the volume of material to be processed on the project site to be 680 tons per day and then modified in 2013 to allow increase from 680 tons per day to allow an

1.1 Packet Pg. 10
Staff Report to the Mayor and City Council
Appeal of Modification of Zoning Entitlement - Ecology Recycling Services June 4, 2024

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increase of the volume of materials to be processed to 1600 tons per day. T he second condition relates to Condition of Approval No. 12 addressing the maximum pile heights of 16 -feet for all materials processed or stored on the project site approved in 2006. However, the storage height was not changed in 2013 when the volume of materials processed on the project site was increased.

Staff has included each of the conditions of approval mentioned above as major basis for the appeal and for the City Council review.

2006 Conditions of Approval related to restrictions on material process in tons per day and restriction on stacking height – City Council Resolution No. R-85-06:
“11. The volume of material to be processed shall not exceed 680 tons per day (TPD).” “12. All materials to be processed or stored on the project site shall not exceed a stacking height of 16 feet.”
2013 Condition s of Approval related to increase in volume of material to be processed – Planning Commission Resolution No. R-09-13:
“4. This approval is for the increase of metal shredding operational capacity from 680 tons per day/17,680 tons per month to processed 1,600 tons per day./41,600 tons per month without increasing the volume of railroad transloading (transfer of goods from rail car to truck distribution).”
“10. All materials to be processed or stored on the project site shall not exceed a stacking height of 16-feet.”
2024 Condition of Approval condition related to stacking height. “11. Maximum Outside Storage Height. All Materials to be processed or stored at specific designated storage areas on the project site shall not exceed a stacking height of 16 feet.

Material storage piles shall not encroach into the Fire Access Roadways as required by Condition 16. (Originally under Miscellaneous, Condition #12 of R -85-06/D-55-01; under Planning Division Condition #10 of R-09-13/DAP-001-083).”

The appellant’s argument specifically references the relationship behind the original approval and the reason why the increase of the material storage height is necessary for business operations today.

The main reason for the appeal to increase the height from 16 -feet to 35-feet relates to the April 23, 2013 Planning Commission approval of Resolution R-09-13 to allow the volume of materials to be processed to be increased from 680 tons per day to 1,600 tons per day. However, the Planning Commission did not increase the restricted stacking height of 16-feet.

1.1 Packet Pg. 11
Staff Report to the Mayor and City Council
Appeal of Modification of Zoning Entitlement - Ecology Recycling Services June 4, 2024

Page 5 ends

The Planning Commission considered the various documents, presentations, and analysis provided by Ecology Recycling Services. However, the Commission felt that the 16 -feet restriction should not be increased. The Commission members stated that i ncreasing the heights was aesthetically unattractive, and unnecessary because piles of material are continuously being shredded or moved daily by train or truck. The Commission felt that the daily materials removal from the site should not be increased and to keep the materials storage height at 16-feet.

The Appellant’s letter of appeal refers to the 2013 Planning Commission approval of the increase tons per day from 680 to 1,600 “ without a commensurate increase in the pile height, which should have increased to at least 37 -feet and 6-inches.” However, the request is to increase the pile height to 35-feet. Their letter of appeal provides visuals to further justify their reason for the appeal showing that the 35 -feet pile height storage increase would not be visible from various angles along east “M” Street. Staff has also attached copies of information provided to the Commission as related to the applicant’s February 13, 2024 plans/exhibits presented to the Planning Commission to increase the height of all the storage of materials processed by the metal shredding and recycling use (Attachment 5).

On May 7, 2024, the applicant requested a continuance of their appeal to address maximum pile height requirements from the Fire Code. The 2022 Fire Code Section 315.4.2 (Height) maximum height for outside storage is 20 -feet and pursuant to Section 315.4 (Outside Storage) piles must also be at least 10-feet from property lines. The current pile height is permitted at 16 feet subject to original City Conditions of Approval for the metal shredding use, which complies with the above-mentioned Fire Code.

If the City Council wishes to approve above 20 -feet, then the Fire Code (FC Section 104.10, Alternative Materials, Design and Methods of Construction and Equipment) allows the Fire Department staff to consider alternatives pursuant to a standard Fire Code Plan Review submission that will contain the specific details as to materials stored, area located, and height proposed, subject to review and approval by the Fire Marshal or designee. While there is a current condition of approval that addresses compliance with all City codes, staff suggests an additional condition of approval that specifically addresses the material pile height situation at the metal shredding site (Pursuant to FC Section 315.4.2):

“Combustible or noncombustible pile heights over 20 -feet in height shall require a Fire Plan Check Review for compliance with the recently adopted Fire Codes, subject to review and approval by the Fire Marshal or designee.”

If the City Council approves above 20 -feet pile height , as outlined in FC 315.4.2, the applicant will need to submit plans of the location of each pile proposed to be 35 -feet in height. The Fire staff or designee will then be reviewing the specific materials proposed in each pile storage, storage location, storage area, engineering analysis (seismic areas of review), and other requirements as part of a Fire Plan Check review for compliance with applicable Fire Code(s).

1.1 Packet Pg. 12
Staff Report to the Mayor and City Council
Appeal of Modification of Zoning Entitlement - Ecology Recycling Services June 4, 2024

Page 6 ends

The City Council has the option to uphold the Planning Commission’s decision as contained in the attached City Council Resolution No. R-37-24 (Attachment 6), or

The City Council has an option to overturn the Planning Commission’s Decision the decision of the Planning Commission as related to the request by the Appellant to modify Condition of Approval #11 to allow all materials to be processed or stored on the project site shall not exceed a stacking height of 35-feet or other height as determined by the City Council. Staff will need to return with a final resolution including findings for approval , which will be provided by staff after hearing the discussion and reasons why the Council may overturn the Planning Commission’s decision (Attachment 7, Resolution No. R-38-24).

FISCAL IMPACTS

None.

ALTERNATIVES

• Deny Appeal and uphold Planning Commission decision; or

• Grant Appeal overturning the Planning Commission Decision related to Condition No., 11 to allow change in storage pile height for the site; or

• Provide alternative direction to staff.

ATTACHMENT

1. Attachment 1_PC_2024 March 26_Meeting Minutes

2. Attachment 3_Appeal Letter_DAP24-0018

3. Attachment 4_785 East M Street Past City Council and Planning Actions

4. Attachment 5_Applicant Feb. 13, 2024 Plans-Exhibits PIle Height Increase

5. Attachment 6_CC Resolution No. R-37-24_785 East M St_Appeal_Upholding

6. Attachment 7_CC Resolution No. R-38-24_785 East M St_Appeal_Overturning

7. Attachment 2_PC Reso No. R-02-24 and R-04-24

1.1 Packet Pg. 13

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Attachment: Attachment 1_PC_2024 March 26_Meeting Minutes (4546 : Appeal of Modification of Zoning Entitlement - Ecology Recycling

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Attachment: Attachment 1_PC_2024 March 26_Meeting Minutes (4546 : Appeal of Modification of Zoning Entitlement - Ecology Recycling

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Attachment: Attachment 1_PC_2024 March 26_Meeting Minutes (4546 : Appeal of Modification of Zoning Entitlement - Ecology Recycling

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Attachment: Attachment 1_PC_2024 March 26_Meeting Minutes (4546 : Appeal of Modification of Zoning Entitlement - Ecology Recycling

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Attachment: Attachment 3_Appeal Letter_DAP24-0018 (4546 : Appeal of Modification of Zoning Entitlement - Ecology Recycling Services)

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Attachment: Attachment 3_Appeal Letter_DAP24-0018 (4546 : Appeal of Modification of Zoning Entitlement - Ecology Recycling Services)

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Attachment: Attachment 3_Appeal Letter_DAP24-0018 (4546 : Appeal of Modification of Zoning Entitlement - Ecology Recycling Services)

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Attachment: Attachment 3_Appeal Letter_DAP24-0018 (4546 : Appeal of Modification of Zoning Entitlement - Ecology Recycling Services)

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Attachment: Attachment 3_Appeal Letter_DAP24-0018 (4546 : Appeal of Modification of Zoning Entitlement - Ecology Recycling Services)

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Attachment: Attachment 3_Appeal Letter_DAP24-0018 (4546 : Appeal of Modification of Zoning Entitlement - Ecology Recycling Services)

Past Planning Actions for Ecology Recycling/AIM at 785 East M Street. Green box over date are current and active resolutions that are required to be complied by the business operator/owner:

03/26/2024 DAP23-0010 – The Planning Commission approved Resolutions No. R -02-24 for a Variance to allow an 18 -feet high fence along the eastern property boundary and Resolution No. R -04-24 for Modification of Zoning Entitlements for existing metal shredding and recycling facility located on

19.39 acres of land within the M-2 (Heavy Industrial) Zone.

11-24-2015 DAP-001-227 - The Planning Commission approved Resolution No. R-24-15 to allow a Modification to a Conditional Use Permit and Architectural & Site Plan review to allow the construction of a new 21,200 square foot metal building to house appliance shredding equipment.

12-11-2014 DAP-001-205 – Staff Administrative approval for minor modification to Conditions of Approval Nos. 13 and 15 of Planning Commission Resolution No. R-09-13 (DAP-001-083).

04-23-2013 DAP-001-083 – The Planning Commission approved Resolution No. R-09-13 to allow a Modification to a Conditional Use Permit to increase the metal shredding operational capacity to 40,000 tons/month and adopted an Addendum to a previously certified EIR.

03/05/2012 DAP-000-999 – The Design Review Committee approved Architectural and Site Plan Review for the installation and operation of mechanical equipment, subject to conditions.

08/19/2008 DAP-000-794 Appeal. The City Council approved Resolution No. R-95-08 upholding the Planning Commission approval of an amendment to allow to allow the Applicant the discretion to use any one of five (5) treatment processes for all non -hazardous shredded recyclable material (“shredder fluff”). The five (5) treatment processes were extensively studied and analyzed in the FRIER and found to be approved treatment processes for the shredder fluff. The following are the approved five (5) treatment processes:

1. Standard Management Process: An “in-line” treatment process under a DTSC (Department of Toxic Substances Control) non-hazardous waste determination.

2. Incidental Management of shredder fluff as a hazardous waste.

3. Manage the shredder fluff as a recyclable material

4. Manage the shredder fluff as a hazardous waste

5. Treat and dispose of the shredder fluff as a hazardous waste.

07/22/2008 DAP-000-794 – The Planning Commission approved Resolution No. R-04-08 for a Modification of Conditional Use Permit to utilize the approved disposal methods for shredded recyclable material.

07/18/2006 D-55-01 Appeal. The City Council approved Resolution No. R-85-06 confirming and upholding the Planning Commission approval and approved Resolution No. R-84-06 upholding the Planning Commission’s approval of the certification of Environmental Impact Report (EIR) (Conditions – Follow-up: Miscellaneous 10, 11, 12, 13, 15, 16, 17, 18-22; Aesthetics 1 and 5)

06/13/2006 D-55-01 Rescinding 2004 approval. The Planning Commission approved Resolution No. R-04- 06 Final Revised Environmental Impact Report (EIR) pursuant to litigation outcomes and approved R-05-06 Modification of Conditional Use Permit, New Building, Increase in Railroad Transloading and Variance to allow an over height wall on the southerly portion of the property.(note – this action replaced R-10-04 and R-11-04)

2004 Litigation The project approval, the 2004 EIR was challenged in the San Bernardino County Superior Court.

The Court upheld the 2004 EIR in all respects, except with regard to the following discrete issues:
- Trip Generation – for the shredder only
- Trip Distribution -0 “M” Street Impacts
- Application of appropriate LOS Standard
- Traff Mitigation – Feasibility

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Attachment: Attachment 4_785 East M Street Past City Council and Planning Actions (4546 : Appeal of Modification of Zoning Entitlement - 785 E. M Street - Page 2 of 2

- Hazardous Materials – Management of Shredder Fluff; and - Air Quality – Cumulative Impacts
- The Court rejected all of the Petitioner’s other challenges to the 2004 EIR. The 2004 EIR was adjudged adequate and in compliance with CEQA on all other points.

11/16/2004 D-55-01 Appeal. The City Council approved Resolution No. R-129-04 upholding the Planning Commission’s Approval to allow a Modification of Conditional Use Permit for operation of metal shredding, construction of metal building, and increasing the volume of railroad transloading. An Environmental Impact Report (EIR) was also upheld with this action (D-55-01).

10/12/2004 D-55-01 – Planning Commission approved Resolution No. R-10-04 to allow a Modification of Conditional Use Permit to allow the installation and operation of metal shredding and R-11-04 certifying the Environmental Impact Report (EIR).

10/22/1996 C-45-96 – Environmental Review, Conditional Use Permit, Site and Architectural Review for three above ground fuel storage tanks. Final decision unclear – item may have been dropped.

Planning staff continues to review documents to make a final determination for this application.

10/11/1996 D-46-94 – Conditional Use Permit to allow rail car dismantling and salvage. Approved by the Planning Commission, subject to conditions of approval.

11/16/1986 C-5-86 – Planning Commission approved Resolution No. R-139-86 for a Conditional Use Permit for a scrap metal recycling facility.

Green box show decision primary points by Planning Commission or City Council. There are a couple of items where there was a staff administrative approval as noted above.

Updated March 27, 2024

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Attachment: Attachment 4_785 East M Street Past City Council and Planning Actions (4546 : Appeal of Modification of Zoning Entitlement - SEALS:

CASC
Engineering and Consulting

AMERICAN IRON AND METAL

CALIFORNIA (AIM)

ECOLOGY RECYCLING SERVICES
PREPARED FOR/APPLICANT:

PROPERTY OWNER:BASIS OF BEARING

BENCHMARK
SHEET 1 OF 6
M
STREET
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STREET

VERNON AVE
S M
OUNT

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Attachment: Attachment 5_Applicant Feb. 13, 2024 Plans-Exhibits PIle Height Increase (4546 : Appeal of Modification of Zoning Entitlement - Ecology SEALS:

CASC
Engineering and Consulting

AMERICAN IRON AND METAL

CALIFORNIA (AIM)

ECOLOGY RECYCLING SERVICES
PREPARED FOR/APPLICANT:

PROPERTY OWNER:BASIS OF BEARING

BENCHMARK
SHEET 2 OF 6

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Attachment: Attachment 5_Applicant Feb. 13, 2024 Plans-Exhibits PIle Height Increase (4546 : Appeal of Modification of Zoning Entitlement - Ecology SEALS:

CASC
Engineering and Consulting

AMERICAN IRON AND METAL

CALIFORNIA (AIM)

ECOLOGY RECYCLING SERVICES
PREPARED FOR/APPLICANT:

PROPERTY OWNER:BASIS OF BEARING

BENCHMARK
SHEET 3 OF 6

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Attachment: Attachment 5_Applicant Feb. 13, 2024 Plans-Exhibits PIle Height Increase (4546 : Appeal of Modification of Zoning Entitlement - Ecology SEALS:

CASC
Engineering and Consulting

AMERICAN IRON AND METAL

CALIFORNIA (AIM)

ECOLOGY RECYCLING SERVICES
PREPARED FOR/APPLICANT:

PROPERTY OWNER:BASIS OF BEARING

BENCHMARK
SHEET 4 OF 6

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Attachment: Attachment 5_Applicant Feb. 13, 2024 Plans-Exhibits PIle Height Increase (4546 : Appeal of Modification of Zoning Entitlement - Ecology SEALS:

CASC
Engineering and Consulting

AMERICAN IRON AND METAL

CALIFORNIA (AIM)

ECOLOGY RECYCLING SERVICES
PREPARED FOR/APPLICANT:

PROPERTY OWNER:BASIS OF BEARING

BENCHMARK
SHEET 5 OF 6

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Attachment: Attachment 5_Applicant Feb. 13, 2024 Plans-Exhibits PIle Height Increase (4546 : Appeal of Modification of Zoning Entitlement - Ecology Engineering and Consulting

AMERICAN IRON AND METAL

CALIFORNIA (AIM)

ECOLOGY RECYCLING SERVICES
PREPARED FOR/APPLICANT:

PROPERTY OWNER:

BASIS OF BEARING
BENCHMARK SEALS:

SHEET 6 OF 6

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RESOLUTION NO. R-37-24

A RESOLUTION OF THE OF THE CITY OF COLTON CITY COUNCIL UPHOLDING

THE PLANNING COMMISSION DECISION APPROVING MODIFICATION OF ZONING ENTITLEMENTS (C-5-86, D-55-01, DAP -000-794, DAP-000-999, DAP-001-083, AND DAP-001-227) RELATED TO ECOLOGY RECYCLING SERVICES / AIM (American Iron and Metal) CONDITIONAL USE PERMIT AND ARCHITECTURAL AND SITE PLAN REVIEW AS RELATED TO CONDITION NO. 11 PERTAINING TO THE

EXISTING METAL SHREDDING / RECYCLING USE ON PROPERTY MEASURING APPROXIMATELY 19.39 ACRES OF LAND WITHIN THE M-2 (HEAVY INDUSTRIAL) ZONE. (FILE CASE NO. DAP23-0010)

WHEREAS, An appeal of Modification of Zoning Entitlements (C-5-86, D-55-01, DAP- 000-794, DAP -000-999, DAP -0001-083, and DAP -001-227) related to allowing a change to Condition No. 11 to allow a 35 -feet storage of materials height instead of 16 -feet storage of materials height for Ecology Recycling Services / AIM (applicant) Conditional Use Permit and Architectural and Site Plan Review pertaining to the existing metal shredding / recycling use on property measuring approximately 19.39 acres of land within the M -2 (Heavy Industria l) Zone. (APNs: 0276-121-19 and 0163-041-43); and

WHEREAS, on September 12, 2023, the Planning Commission after review of the zoning entitlements on July 25, August 8 and September 12, 2023 , deemed that there was sufficient evidence to warrant a full examination of the Conditional Use Permit and Architectural and Site Plan Reviews for the existing metal shredding use to warrant full examination at a dully noticed public hearing; and

WHEREAS, the Planning Commission has also found it necessary to include specific modification of conditions of approval to clarify and update current operational aspects of the project that have not been fully completed by Ecology Recycling Services / AIM (American Iron and Metal) which require and warrant modifications of the various conditions of past approvals into one new Resolution consolidating previously approved Resolution Nos. R-139-186, R-85-06, R-95-08, R -09-13 and R -24-15 into this resolution he rein with the inclusion of environmental documents approved pursuant to the California Environmental Quality Act; and

WHEREAS, the approved modification to Conditional Use Permit and Architectural and Site Plan Reviews includes various case numbers (C-5-86. D-55-01, DAP-000-794, DAP-000-999, DAP-0001-083, and DAP-001-227) and associated Certified Environmental Impact Report (D-55- 01, DAP -000-794) Addendum to Certified EIR (DAP -001-083) and Mitigated Negative Declaration (DAP -001-227) at which time the Planning Commission conducted duly noticed public hearing on the City initiated Modification of Zoning Entitlements at which time all persons wishing to testify in connection with the proposed actions were heard, and the Modification of Zoning Entitlements were comprehensively reviewed; and

WHEREAS, at the November 16, 1986, Planning Commission meeting, the City Planning Commission adopted Resolution No. R-139-86 (C-5-86) approving a rail car and dismantling and salvage use and approval of the Negative Declaration; and

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WHEREAS, at the July 18, 2006 , City Council meeting, the City Council upon Appeal adopted Resolution No. R -85-06 (D-55-01, which included uses approved in C ase No. C-5-86) confirming and upholding the Planning Commission approval and approved Resolution No. R-84- 06 upholding the Planning Commission’s approval of the certification of Environmental Impact Report (EIR); and

WHEREAS, at the April 23, 2013, Planning Commission meeting, the Planning Commission approved Resolution No. R -09-13 (DAP-001-083) to increase the metal shredding operational capacity to 40,000 tons/month and adopted an Addendum to the 2006 Certified EIR; and

WHEREAS, at the November 24, 2015, the Planning Commission meeting, the Planning Commission approved Resolution No. R -24-15 (DAP -001-227) to allow Modification of Conditional Use Permit and Architectural and Site Plan Review to allow the construction of a new 21,200 square foot metal building to house appliance shredding equipment and Mitigated Negative Declaration; and

WHEREAS, following the City Council's decision , Hugo Neu -Proler Company d.b.a Colton Iron and Metal (CIM) filed a Writ of Mandate with the Superior Court of the State of California for the County of San Bernardino (the "Court") alleging that the EIR did not comply with the requirements of CEQA; and

WHEREAS, the Court upheld the EIR in all respects except as to the analysis of traffic, air quality and hazardous materials, and directed the City to rescind the approval of the Applications in order to perform additional CEQA review, consistent with the Court's decision with respect to these three specific issue areas; and

WHEREAS, following the Court's decision, the City prepared a Revised Draft Environmental Impact Report ("Revised DEIR") which has been duly considered and is described in further detail in the Planning Commission Resolution certifying the Final Revised Environmental Impact Report (Upheld on Appeal by the City Council by Resolution No. R-84-06); and

WHEREAS, on November 14 and 18, 2023 , January 9 and 23, 2024, February 13, 2024, and March 26, 2024, the Planning Commission of the City of Colton held a duly noticed public hearing at which time all persons wishing to testify in connection with the application were heard and the Application was fully examined; and

WHEREAS, on May 7, 2024, the City Council of the City of Colton conducted a public hearing on the application and all persons wishing to testify in connection with the application were heard, and the applications were comprehensively reviewed; and

WHEREAS, Pursuant to the California Environmental Quality Act (CEQA), Section 15162 no new significant impacts have occurred and therefore, no additional environmental review is required for approval of the application. The existing environmental documents related to the project will remain in place including Certified Environmental Impact Report State Clearinghouse Number 20022111002 (D-55-01 and DAP-000-794), Addendum to Certified EIR (DAP-001-083) and Mitigated Negative Declaration (DAP-001-227).

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WHEREAS, that the City Council of the City of Colton does hereby find, determine and declare as follows:

SECTION 1. Based on the entire record before the City Council and all written and oral evidence presented, and the findings made for the Modification of Conditional Use Permit in this Resolution, the City Council upholding the Planning Commission’s decision also hereby finds that:

1. That the proposed use is in accord with the General Plan, the objectives of this title, and the purposes of the zone in which the site is located; The proposed recycling facility project is consistent with the following General Plan Update Goals and Objective Policies:

A. General Plan Update Policy LU-3-2: “Retain industrial land for businesses that provide jobs for manufacturing and processing of goods, and that create local revenue sources.” The expanded facility has created approximately 100 jobs, of which 13 employees reside in the City of Colton. The proposed modifications to former zoning entitlements are found necessary to also create a safe, clean, and project reflective of past Planning Commission approvals, requiring immediate action pertaining to unpermitted construction areas on the site and immediate action to other operational improvements as conditioned herein.

B. General Plan Update Policy LU -11.3: “Increase and diversify local employment opportunities and retain and accommodate industrial development that is compatible with City Objectives for safety, environmental and visual quality, and employment and revenue generation.” The existing metal shredding use has improved the street frontage with new landscaping and a decorative block wall on top of a two feet high landscaped berm certainly improve the overall aesthetics of the East M Street frontage. However, the project remains to be incomplete with certain property improvements that will need to be completed to fully be compatible with the surrounding neighborhood. Therefore, the proposed Modifications to Conditional Use Permit approvals (C -5-86. D -55-01, DAP-000-794, DAP-000-999, DAP-0001-083, and DAP-001-227) are warranted and to be in accord with the General Plan.

2. That the proposed Use will not be detrimental to the public health, safety or welfare, or materially injurious to properties or improvements in the vicinity; The past expansion approvals of an existing recycling facility use will not be detrimental to the public health, safety or welfare or materially injurious to properties or improvements in the vicinity for the following reasons:

A. The proposed use hours of operation for the proposed business are being updated based on concerns of hours of operation by the residential neighborhood to the west of the subject site. This will improve keeping the adjacent neighborhood peace and quiet prior to 6:00 a.m. every morning and eliminating any work on Sunday as stipulated in Condition #12.

B. The proposed business is located in an area of the City that consists of a significant amount of industrial and open space resources resulting in the completion of perimeter landscaping and installation of perimeter walls and

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fences with the objective in beautifying the area as originally approved in 2006.

C. Conditions have been updated and placed on the proposed use which will mitigate any potential impacts created by the use (i.e., Hours of operation, placement of buildings, screening/landscaping of site and prohibiting the use of certain high powered cutting tools ) and will ensure that the use does not negatively affect the surrounding residential neighborhood to the west and north side of the freeway with noise, odors and dust clouds created by the metal shredding operations as conditioned herein.

D. Staff have obtained a monthly tonnage report for the past two years to ensure the recycling facility does not exceed the monthly amount of tonnage to be processed. Currently the facility was approved with a maximum amount of 41,600 tons per month. The monthly tonnage reports from January 2023 to October of 2023 show 2,352 tons to 29,814 tons per month was recorded during this time period. Therefore, in compliance with the 41,600 tons per month approved in 2013.

E. All exterior lighting continues to remain in conformance with the lighting standards of the City (i.e., non-flashing and directed away so as to eliminate objectionable glare) in conformance with Chapters 18.40 and 18.42 of the Colton Municipal Code.

3. That the proposed use complies with each of the applicable provisions of this title; The applicants will be required to take immediate action pertaining to completion of previously zoning entitlement approvals, completion of permitting, and operate the business with new hours of operation and new reporting system in addressing concerns and complaints received in writing from the City or from the public. Therefore, the Modification of Conditional Use Permit is warranted to ensure compliance with the Zoning Code.

SECTION 2. Based on the entire record before the City Council and all written and oral evidence presented, and the findings made for the Architectural and Site Plan Review this Resolutions upholding the Planning Commission’s decision, the City Council hereby finds that:

1. The provisions for vehicular parking and for vehicular and pedestrian circulation on the site, and onto adjacent public Right-of-Way will not create safety hazards; The Modification of the Architectural and Site Plan Reviews is warranted as the metal shredding and recycling facility remains incomplete and require Planning approval and Building Permits related to vehicular parking. All the conditions of approval herein require immediate attention to providing planning and building with plans to complete project development improvements as approved by the Planning Commission. A final report back to the Commission is also required of the status of project implementation as conditioned herein one year from the date of this approval.

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quality of life for the citizens of Colton, and the Development is feasible in a manner that will avoid such detrimental or injurious results or such loss or damage; in that there are no specific natural or topographic features requiring protection in the specific project area. However, there are other areas of the project which do impact the neighboring residential homes and street views of the metal shredding operations that will be addressed to include perimeter walls / fences and landscaping beautifying the site from public view.

3. The provisions for on-site landscaping do provide adequate protection to neighboring properties from detrimental features of the proposed development that could be avoided by adequate landscaping; The Modification of Conditional Use Permit is warranted to reinforce previous project approval requirements of the metal shredding and recycling facility to include perimeter fencing, landscaping, change in hours of operation, developing new reporting protocols, and completion of obtaining building permits, planning approval, inspections and final sign off.

4. The provisions for exterior lighting are adequate for human safety and will not diminish the value and/or usability of adjacent property; The project complies with all lighting standards and requirements of the City of Colton for all proposed exterior lighting. This project does not include lighting that will be a nuisance to adjacent residential uses or new to adjacent automobile users. The existing conditions of approval for the project will continuously enforce any potential future lighting issues that may occur on the site impacted adjacent right-of-way and neighboring properties.

3. 5. The exterior design of the buildings and structures will not be injurious or detrimental to the environmental or historic features of the immediate neighborhood in which the proposed development is located and will not cause irreparable damage to property in the neighborhood, to the City and to its citizens; the site is located in a Heavy Industrial Zone and the buildings/structures are appropriate for the approved use, subject to obtaining all approvals, permits, inspections for project full compliance with City approvals. There are no immediate historical features in the immediate location that will be impacted by the metal shredding and recycling use so long as all of the conditions of approval are met as stipulated herein.

6. The proposed Development will not impose an undue burden upon off-site public services, including sewer, water and streets, which conclusion shall be based upon a written report of the City Engineer; and there is no provision in the capital works program of the City to correct the specific burden within a reasonable period after the development will be completed. Most Public Works conditions of approval are presently met and will continue to be enforced and reviewed as necessary, such as with inspecting the water and wastewater systems by the City. Recent inspection conducted on November 1, 2023, related to odors complaint found no issues with water/stormwater

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systems and the odors were not coming from the water/stormwater systems. However, the applicant has agreed to immediately comply with Condition Number 13 herein requiring the applicant to enter into an agreement with the City of Colton to pay a an additional mitigation fee for an amount to be negotiated in order to cover an financial costs for additional project impacts, including but not limited to street, pavement degradation within one year of this approval.

SECTION 3. Pursuant to the California Environmental Quality Act (CEQA), Section 15162 no new significant impacts have occurred and therefore, no additional environmental review is required for approval of the application. The existing environmental documents related to the project will remain in place including Certified Environmental Impact Report (D-55-01 and DAP- 000-794), Addendum to Certified EIR (DAP-001-083) and Mitigated Negative Declaration (DAP- 001-227).

SECTION 4. Based upon the findings set forth in Sections 1 and 2 of this Resolution, the City Council hereby approves Modification of Zoning Entitlements (C-5-86, D-55-01, DAP-000- 794, DAP-000-999, DAP-0001-083, and DAP -001-227) related to Ecology Recycling Services / AIM Conditional Use Permit and Architectural and Site Plan Review pertaining to the existing metal shredding / recycling use on property measuring approximately 19.39 acres of land within the M-2 (Heavy Industrial) Zone, subject to the attached conditions of approval (Exhibit “A”).

SECTION 5. The City Clerk shall certify to the adoption of this Resolution.

SECTION 6. This Resolution shall become effective immediately upon its adoption.

PASSED, APPROVED AND ADOPTED this __day of ___, 2024.

FRANK NAVARRO, Mayor

ATTEST:

STEPHANIE M. VARGAS
Deputy City Clerk

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EXHIBIT “A”

CONDITIONS OF APPROVAL

THE APPLICANT SHALL COMPLY WITH ALL CONDITIONS AS SET FORTH IN THE FOLLOWING CONDITIONS OF APPROVAL FOR PLANNING CASE # DAP24-0018.

HOLD HARMLESS

1. The Applicant shall defend, indemnify, and hold harmless the City of Colton and its officers, employees, and agents from and against any claim, action, or proceeding against the City of Colton, its officers, employees, or agents to attacks, set aside, void , or annul any approval or condition of approval of the City of Colton concerning this project, including but not limited to any approval or condition of approval of the city council, planning commission, or development services director. The City shall pr omptly notify the Applicant of any claim, action, or proceeding concerning the project and the City shall cooperate fully in the defense of the matter.

The City reserves the right, at its own option, to choose its own attorney to represent the City, its officers, employees, and agents in the defense of the matter.

PLANNING DIVISION (909) 370-5079

1. The Applicant shall meet and comply with all requirements of all reviewing agencies and shall comply with all applicable local, state, and federal rules, laws and regulations.

2. The Applicant shall comply with all conditions of approval within the Planning Commission Resolution No. R-04-24 (File Index No. DAP23-0010).

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RESOLUTION NO. R-38-24

A RESOLUTION OF THE OF THE CITY OF COLTON CITY COUNCIL GRANTING

APPEAL AND OVERTURNING THE PLANNING COMMISSION DECISION OF MODIFICATION OF ZONING ENTITLEMENTS (C-5-86, D-55-01, DAP-000-794, DAP- 000-999, DAP -001-083, AND DAP -001-227) CONDITION NO. 11 OF DAP23 -0010 CHANGING MAXIMUM 16 FEET ONSITE STORAGE OF MATERIALS HEIGHT TO ALLOW 35 FEET ONSITE MATERIALS STORAGE HEIGHT ON 19.39 -ACRE SITE LOCATED IN THE M-2 (HEAVY INDUSTRIAL) ZONE. (CITY COUNCIL FILE INDEX NO. DAP24-0018)

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WHEREAS, that the City Council of the City of Colton does hereby find, determine and declare as follows:

SECTION 1. Based on the entire record before the City Council and all written and oral evidence presented, and the findings made for the Modification of Conditional Use Permit in this Resolution, the City Council overturning the Planning Commission’s decision also hereby finds that:

3. That the proposed use complies with each of the applicable provisions of this title;

1. The provisions for vehicular parking and for vehicular and pedestrian circulation on the site, and onto adjacent public Right-of-Way will not create safety hazards;

2. The bulk, location and height proposed will not be detrimental or injurious to other Development in the neighborhood or will not result in the loss of or damage to unique natural or topographic features of the site that are important to the environmental quality of life for the citizens of Colton, and the Development is feasible in a manner that will avoid such detrimental or injurious results or such loss or damage;

3. The provisions for on-site landscaping do provide adequate protection to neighboring properties from detrimental features of the proposed development that could be avoided by adequate landscaping;

4. The provisions for exterior lighting are adequate for human safety and will not diminish the value and/or usability of adjacent property;

3. 5. The exterior design of the buildings and structures will not be injurious or detrimental to the environmental or historic features of the immediate neighborhood in

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which the proposed development is located and will not cause irreparable damage to property in the neighborhood, to the City and to its citizens;

SECTION 5. The City Clerk shall certify to the adoption of this Resolution.

SECTION 6. This Resolution shall become effective immediately upon its adoption.

PASSED, APPROVED AND ADOPTED this __day of ___, 2024.

FRANK NAVARRO, Mayor

ATTEST:

STEPHANIE M. VARGAS
Deputy City Clerk

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EXHIBIT “A”

CONDITIONS OF APPROVAL

THE APPLICANT SHALL COMPLY WITH ALL CONDITIONS AS SET FORTH IN THE FOLLOWING CONDITIONS OF APPROVAL FOR PLANNING CASE # DAP24-0018.

HOLD HARMLESS

1. The Applicant shall defend, indemnify, and hold harmless the City of Colton and its officers, employees, and agents from and against any claim, action, or proceeding against the City of Colton, its officers, employees, or agents to attacks, set aside, void, or annul any appro val or condition of approval of the City of Colton concerning this project, including but not limited to any approval or condition of approval of the city council, planning commission, or development services director. The City shall promptly notify the Ap plicant of any claim, action, or proceeding concerning the project and the City shall cooperate fully in the defense of the matter.

The City reserves the right, at its own option, to choose its own attorney to represent the City, its officers, employees, and agents in the defense of the matter.

PLANNING DIVISION (909) 370-5079

1. The Applicant shall meet and comply with all requirements of all reviewing agencies and shall comply with all applicable local, state, and federal rules, laws and regulations.

2. The Applicant shall comply with all conditions of approval within the Planning Commission Resolution No. R-04-24 (File Index No. DAP23-0010).

3. Condition No. 11 is hereby modified to allow all materials to be processed or stored at specific designated storage areas on the project site shall not exceed a stacking height of ___ (to be determined or rejected) feet. Materials storage piles shall not encroach into the Fire Access Roadways as required by Condition 16 (Originally under Miscellaneous, Condition #12 of R - 85-06/D-55-01; under Planning Division Conditions #10 of R-09-13/DAP-001-083)

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ITEM NO. 2

STAFF REPORT

APPROVE AMENDMENT OF APPROVED BILLBOARD PUBLIC
BENEFIT AGREEMENT (FILE INDEX #DAP-001-425) FOR

OPERATION OF A PROPOSED OFF-PREMISES ADVERTISING

ELECTRONIC CHANGEABLE COPY (BILLBOARD) DOUBLE-
FACED FREESTANDING SIGN AS A "GATEWAY SIGN" FOR THE
SOUTH ENTRY TO THE CITY ON THE INTERSTATE 215
FREEWAY ON PROPERTY LOCATED AT 2680 S. LA CADENA
DRIVE (FILE INDEX #DAP24-0020) RESOLUTION NO. R-47-24.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLTON
APPROVING AN AMENDED (FILE INDEX #DAP-001-425) AND RESTATED PUBLIC

BENEFIT, DIGITAL BILLBOARD AND EXPIRED LAND USE SETTLEMENT AGREEMENT FOR PROPERTY LOCATED AT 2680 S. LA CADENA DRIVE (ASSESSOR PARCEL NO. 1167-111-19) (FILE INDEX #DAP24-0020)

BACKGROUND

The subject property is located at 2680 S. La Cadena Drive, at the northwest corner of Interstate 215 and Iowa Avenue. The site has been used as an adult nightclub for many years (Club 215).

In 1998, it was the subject of a lawsuit and consent decree that required the Owner to transition the adult use to another use on or before January 31, 2009. The consent decree permitted Club 215, which was at the time a non -conforming use, to operate on the subject property pursuant to an adult use development permi t through the expiration of the Consent Decree. When the

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deadline for amortization of the adult use expired, the City did not exercise its right to terminate the adult use because it was in the process of revising its adult business regulations and zoning location standards. The City ultimately adopted amendments to the Colton Municipal Code adult business regulations in February of 2016. However, the City did not pursue enforcement of the Consent Decree until sometime in 2018.

At that time, the City negotiated an agreement with the Applicant that avoided additional litigation and allowed the Applicant to delay the removal of the adult use while they pursued redevelopment of the subject property. The agreement, termed a “PUBLIC BENEFIT, DIGITAL BILLBOARD AND EXPIRED LAND USE SETTLEMENT AGREEMENT” (“Billboard Agreement”) also required the Owner to:

1. Convert the adult club (Club 215) into a service station/mini mart; and

2. Remove the existing pole sign and construct a digital billboard sign on the subject property.

Upon issuance of construction permits, the Owners would shut down the adult club and begin constructing both the service station/mini -mart and the digital billboard. The Billboard Agreement also provided that upon completion of the billboard, the Owners would pay the City an annual fee of $100,000 (to be increased by CPI after each 5 -year anniversary) from the advertising revenues of the digital billboard.

COVID Pandemic
In March of 2020, a nationwide COVID pandemic was declared. The pandemic caused significant supply chain delays that affected compliance with the terms of the Billboard Agreement. Although the Billboard Agreement contained a timeline for completion of certain milestones, the timeline was disrupted due to the pandemic.

As the national pandemic began to ease in 2022 and 2023, the Council directed that staff and the City Attorney contact the Owners to amend the Billboard Agreement to update the timeline of actions to move up the closure of the adult night club. As part of those discussions, the Owner also requested certain amendments to the Billboard Agreement. While the amendments were being negotiated with the Owner, they moved forward to close the adult night club. That closure was verified by City staff last month and the language for the amendments has been finalized.

At a public hearing held on May 14, 2024, the Planning Commission of the City of Colton, by a 3-0-2 vote approved Resolution No. R -7-24 (Case Index Nos. DAP23 -0020) recommending to the City Council approval of Amended (File Index No. DAP -001-425) and Restated Public Benefit Digital Billboard and Expired Land Use Entitlement Agreement. (Attachment 1)

ISSUES/ANALYSIS

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The Amended Agreement contains the following significant amendments:

1. Provisions to allow Owner to evaluate the billboard market conditions for a two - year period before he must construct the billboard.

2. Authority to transfer the rights to the billboard construction to a third party (currently the Billboard Agreement authorizes transfer to a family member only).

3. Provisions that acknowledge that the adult club has been closed and can no longer re-open.

4. Provisions that do not require construction of the mini mart /service station to construct the billboard.

5. A revised timeline that grants the Owner/Applicant 24 months to evaluate market conditions and construct the Digital Billboard.

As directed by the Planning Commission, staff and the City Attorney’s office evaluated and researched several options for mitigating excessive lighting/brightness issues from the Digital Billboard. Here is what we found:

1. Foot candles are the industry standard for measuring brightness.

2. Brightness measurements are conducted by placing sensors a certain distance away from the Digital Billboard and comparing the overall brightness to ambient lighting conditions.

3. The industry standard adopted by the Outdoor Advertising Association of America (and accepted by the California Department of Transportation) is 0.3 Foot Candles above ambient light conditions.

4. Excessive brightness/lighting issues occur when a Digital Billboard does not vary brightness in accordance with current ambient light conditions. In other words, the Digital Billboard maintains the same brightness levels whether it is daytime or nighttime.

Given these factors, and the difficulty the City may have in conducting its own measurements to determine compliance with brightness standards, the recommended condition simply requires the Owner to incorporate technology that automatically dims the lighting intensity according to ambient conditions. New Section 4.3 of the Amended Agreement provides:

Digital Billboard Lighting/Brightness . It is acknowledged that manufacturers have developed sophisticated software control systems for displays. These systems provide diagnostics that typically include monitoring electrical supply, status of the sign, automatic calibration of pixels, automatic dimming of light intensity, and temperature control. Automatic dimming systems detect ambient light levels and optimize the light

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intensity to reduce brightness at night and increase the life of the displays. The Digital Billboard shall be provided with an ambient light sensor that automatically adjusts the brightness levels of the Digital Billboard based on ambient light conditions. Such sensor shall remain operational during the life of the Digital Billboard.

It is expected that incorporation of an ambient light sensor will adjust brightness levels at night so that they are reduced (in comparison with daytime brightness levels). In addition, such a sensor will reduce the amount of electricity required by the Digital Billboard. The Owner has agreed to incorporate this technology on this Digital Billboard. The final Amended Agreement is attached to the City Council Resolution. (Attachment 2)

FISCAL IMPACTS

The owner will be required to pay an annual mitigation fee reflecting the gross revenue generated by the Digital Billboard.

ALTERNATIVES

Provide alternative direction to staff.

ATTACHMENT

1. Attachment 1_PC Reso No. R-07-24 with Redlined Copy of Agreement

2. Attachment 2_City Council Reso No. R-47-24 - Clean Copy of Agreement

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- 1 -

RESOLUTION NO. R-07-2024

A RESOLUTION OF THE PLANNING COMMISSION OF

THE CITY OF COLTON RECOMMENDING THE CITY
COUNCIL APPROVE AN AMENDED (FILE INDEX #DAP -
001-425) AND RESTATED PUBLIC BENEFIT, DIGITAL

BILLBOARD AND EXPIRED LAND USE SETTLEMENT
AGREEMENT FOR PROPERTY LOCATED AT 2680 S. LA
CADENA DRIVE (Assessor Parcel No. 1167 -111-19) (FILE
INDEX #DAP24-0020)

WHEREAS, on March 26, 2019, the Planning Commission of the City of Colton held a duly noticed public hearing and recommended the City Council approve a proposed “PUBLIC

BENEFIT, DIGITAL BILLBOARD AND EXPIRED LAND USE SETTLEMENT AGREEMENT” (Billboard Agreement) for property located at 2680 S. La Cadena Drive (Assessor Parcel No. 1167-111-19) (“Subject Property”); and

WHEREAS, the Billb oard Agreement was thereafter approved by the Colton City Council; and

WHEREAS, the Billboard Agreement was reviewed, studied, and found to comply with the California Environmental Quality Act (“CEQA”) as more fully described below , and determined to be consistent with the City of Colton General Plan, all of its elements and the Colton Municipal Code; and

WHEREAS, subsequent to the approval of the Billboard Agreement, the COVID 19 pandemic and other factors delayed implementation; and

WHEREAS, subsequent to the approval of the Billboard Agreement, the Owner and the City determined that changes were necessary to update its terms and make other modifications requested by City and Owner, including:

1. Provisions to allow Owner to evaluate the billboard market conditions for a two year period before he has to construct the billboard.

2. Authority to transfer the rights to the billboard construction to a third party (currently the Billboard Agreement authorizes transfer to a family member only).

3. Provisions that acknowledge that the adult club has been closed and can no longer re-open.

4. Provisions that do not require construction of the mini-mart/service station in order to construct the billboard.

WHEREAS, on April 23, 2024 and May 14, 2024, the Planning Commission of the City of Colton (“Planning Commission”) conducted a duly noticed public hearing on the request, at which time all persons wishing to testify in connection with the request were heard and the request was comprehensively reviewed; and

WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF COLTON DOES RESOLVE AS FOLLOWS:

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Section 1. The Planning Commission hereby recommends to the City Council approval of the Billboard Agreement attached hereto as Exhibit A.

Section 2. Based on the entire record before the Planning Commission and all written and oral evidence presented, the Planning Commission finds th e Billboard Agreement promotes the public health, safety and w elfare of the c ommunity since the Billboard Agreement provides the City with several significant benefits including, but not limited to, additional general fund revenues in the form of revenue sharing with the Billboard owner, removal of a nonconforming adult use and redevelopment of an existing older building and site.

Section 3 . B ased on the entire record before the Planning Commission, including all written and oral evidence presented, the Planning Commission hereby find s that the Billboard Agreement is consistent with the General Plan and general plan policies of the City of Colton , as described below:

A. General Plan Goal LU -3: "Ensure a strong and diversified economic base to provide for fiscal stability and sustainability." The proposed Billboard Agreement and sign will provide an attractive entry sign for the City of Colton and information to motorists about the services and retail opportunities available in Colton, with the intent of attracting new customers for local businesses.

B. General Plan Policy LU -9.8: "Diversify the types of commercial uses available in Colton to ensure the City's fiscal well -being. Create a balanced mix of restaurants and retail stores that offer a varied selection of dining and shopping opportunities." The proposed Billboard Agreement and Gateway Sign will promote the types of commercial uses which contribute to the City's fiscal wellbeing, and over time, result in the desired mix of restaurants and shopping opportunities.

Section 4. Based on the entire record before the Planning Commission , and all written and oral evidence presented, the Planning Commission finds that as part of the original approvals, the Planning Commission/City Council adopted a Negative Declaration pursuant to the California Environmental Quality Act (CEQA) and the CEQA Guidelines. Since the amendments to the Billboard Agreement do not propose any physical changes to the Billboard (sign), the prior Negative Declaration is still effective.

Section 5.. The Secretary shall certify the adoption of this Resolution.

PASSED, APPROVED AND ADOPTED this 14 day of May, 2024.

____________________________
Richard Prieto, Chairperson
Colton Planning Commission

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I hereby certify that the foregoing is a true copy of a resolution adopted by the Planning Commission of the City of Colton at a meeting held o n the 14 day of May, 2024 by the following vote of the Planning Commission:

AYES: Grossich, Peters, Baden

NOES: None

ABSENT: Prieto, Escarcega

ABSTAIN: None

_______________________________________
Planning Commission Secretary
Heidi Duron, Development Services Director

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EXHIBIT “A”

AMENDED & RESTATED BILLBOARD AGREEMENT
(See Attached)

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Recorded at request of:

City of Colton
650 N. La Cadena Drive
Colton, CA 92324

Attention: City Clerk )
)
Exempt from Filing Fees, Government Code Section 6103

AMENDED AND RESTATED PUBLIC BENEFIT, DIGITAL BILLBOARD AND

EXPIRED LAND USE SETTLEMENT AGREEMENT

BETWEEN

CITY OF COLTON

and

TODD GIBBONEY

[DATED MAY ___, 2024 FOR REFERENCE PURPOSES ONLY]

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2 AMENDED AND RESTATED PUBLIC BENEFIT, DIGITAL BILLBOARD AND

EXPIRED LAND USE SETTLEMENT AGREEMENT

THIS AMENDED AND RESTATED PUBLIC BENEFIT, DIGITAL BILLBOARD AND EXPIRED LAND USE SETTLEMENT AGREEMENT (“Amended Agreement”) is entered into as of this ____ day of _________ , 2024 (the “Effective Date”), by and between the CITY OF COLTON, a California municipal corporation (the “City”), and TODD GIBBONEY (“Owner”). City and Owner are sometimes referred to in this Amended Agreement separately as a “Party” or collectively as the “Parties.”

RECITALS
A. Owner is the Owner of certain real property located at 2680 South La Cadena Drive in the City of Colton (“Site”). A legal description of the Site is attached hereto as Exhibit “A” and is incorporated herein by reference.

B. In March 1998, the City and the Owners entered into a consent decree in order to settle claims brought by Club 215 and its owners, Albert and Todd Gibboney (“Consent Decree”).

The consent decree permitted Club 215, which was at the time a non -conforming use, to operate on the Site pursuant to an adult use development permit through the expiration of the Consent Decree, on January 31, 2009. Club 215 also operated a non-conforming on premise sign shown on Exhibit “B” of this Amended Agreement.

C. When deadline for amortization of the adult use on the Site described in in the Consent Decree expired, the City did not exercise its right to terminate the adult use because it was in the process of revising its adult business regulations and zoning locat ion standards. The City ultimately adopted an amended and restated version of the portion of the Colton Municipal Code relating to adult business regulations in February of 2016.

D. On or about November 7, 2017, the City Council of the City of Colton adopted Ordinance No. O -08-17, which amended various portions of the Colton Municipal Code to establish regulations and provide for review and approval of off -premises signs (billboards), including gateway signs.

E. On or about November 28, 2017, Owner filed an applications for the following Development Approvals:

1. Billboard Public Benefit Agreement for operation of a proposed off-premise advertising electronic changeable copy (billboard) double -faced freestanding sign as a "gateway sign" for the south entry to the City on the Interstate 215 Freeway; (2) Conditional Use Permit for the establishment of the proposed "Gateway" sign with an overall height up to 55 feet, as measured from the street level right -of-way, and sign face areas up to 14 feet by 48 feet (672 square feet) each for a total cumulative sign area of up to 1,344 square feet; (3) Variance for deviation from sign standards which limit gateway signs to a maximum cumulative sign area of 1,200 square feet on the Site (collectively “Project” and/or “Development Approvals”) the location and design of the servic e station, convenience market and Digital Billboard is shown on Exhibit “C” and is incorporated herein by reference.

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3 F. Pursuant to the California Environmental Quality Act (CEQA), an initial study was prepared by the City to assess the environmental impacts of the Project. The initial study determined that the project would not create any significant adverse environmental impacts and a Negative Declaration was prepared
G. On May 28, 2019, the Colton Planning Commission conducted a duly noticed public hearing regarding the Project in accordance with the Development Code and adopted Resolution No. R -05-19 recommending that the City Council approve the Digital Billboard Agreement, based on current development standards, the location of the proposed Digital Billboard, and that the proposed Digital Billboard meet the findings contained in Section

18.50.120(A)(8) of the Development Code (“Original Agreement”).

H. On October 1, 2019, following a duly noticed public hearing, City's City Council adopted Resolution No. R -67-19 approving the Original Agreement dated January 9, 2020 after making the findings required in Section 18.50.120(A)(8), and authorizing City’s City Manager to execute the Original Agreement on behalf of the City.

I. On January 9, 2020, the City and Owner entered into the Original Agreement. The Original Agreement required the Owner to convert Club 215 into a service station/mini -mart and to remove the existing pole sign and construct a Digital Billboard on the site. Upon issuance of construction permits, the Owner would shut down the adult club and begin constructing both the service station/mini-mart and the Digital Billboard. The Original Agreement also provided that upon completion of the billboard, the Owner woul d pay the City an annual mitigation fee of $100,000 (to be increased by CPI after each 5-year anniversary) from the advertising revenues of the Digital Billboard.

J. Since January 9, 2020, the Original Agreement has been extended twice to accommodate the Owner to comply with the original timeline. Due to the COVID-19 pandemic, the timeline to complete certain milestones of the Original Agreement was delayed. These milestones included, among other things, (1) the issuance of the building permit for the conversion of the site to the proposed service s tation/mini-mart and the concurrent closure of Club 215; (2) the removal of the non -conforming signage and the commencemen t of installation and construction of the Digital Billboard upon the site; (3) the issuance of the certificate of occupancy for conversion of the site to the proposed service station/mini -mart; and (4) the completion and installation of the Digital Billboard following final inspection approval from the City Building Division (the “Milestones”).

K. On or around November 6, 2020, the Owner completed removal of the non - conforming sign.

L. Around 2022, the City contacted the Owner to amend the Original Agreement to update the Milestones timeline for the Project. The City was then informed that the Owner was willing to revise the Milestones timeline but was undergoing a dispute with the proposed developer of the service station/mini-mart.

M. In June 2022, the City sent a notice of breach and demand for cure on the Original Agreement to the Owner. The Parties were unfortunately unable to revise an updated Milestones

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4 timeline. In response, the City, on its own volition, prepared an updated Milestones timeline in December 2022. However, since December 2022, the Parties have not been able to amend an updated Milestones timeline to allow for the timely commencement of the Project that fits the City’s criteria.

N. In 2023, the City was informed that th e Owner terminated his agreement with the proposed developer of the service station/mini-mart. However, it was unclear whether the Owner had sought a new proposed developer.

O. In August 2023, the City sent a notice to the Owner to perform on the Original Agreement. The Owner re sponded in October 2023 with a revised Milestones Timeline. As a result of the further discussions with the Owner, the Parties have decided to amend the Original Agreement once more to accommodate for the revised Milestones timeline demonstrated in the Owner’s October 2023 written corre spondence, delete references to construction of a mini -mart use on the property, and to confirm Owner’s assurances that the nonconforming adult use club on the property will cease to operate.

P. City Council has found this Amended Agreement provides the City with certain public benefits that are in the best public interest of City and its residents, entry into this Amended Agreement constitutes a present exercise of City’s police power, and this Amended Agreement is consistent with City’s General Plan and Development Code. The City Council has made the following findings:

1. The Amended Agreement is consistent with the goals, objectives, purposes and provisions of the City’s General Plan and Development Code.

2. The Digital Billboard is compatible with the uses and structures on the Site and in the surrounding area;

3. The Digital Billboard will not create a traffic or safety problem, including problems associated with on-site access, circulation, or visibility;

4. The Digital Billboard will not otherwise result in a threat to the general health, safety and welfare of City residents; and

5. The Digital Billboard, in addition to its aesthetic treatment, provides public benefits that would not otherwise accrue to the public in the absence of its installation. As an additional material consideration for City's approval of this Amended Agreement, Owner has agreed to provide certain public benefits, as set forth in this Amended Agreement, and to pay the Processing Fees and Annual Mitigation Fee (each as hereinafter defined), as set forth in Section 7 of this Amended Agreement.

Q. City and Owner desire to enter into this Amended Agreement to memorialize the terms and conditions upon which Owner may undertake the Billboard portion of the Project.

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5 AMENDED AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, which Recitals are incorporated herein by reference, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and consideration of the mutual covenants set forth herein, the Parties hereby agree as follows:

CONDITIONS TO AMENDED AGREEMENT'S EFFECTIVENESS.

Owner understands and hereby acknowledges the effectiveness of this Amended Agreement is subject to (1) termination of the adult uses on the Site upon issuance of a demolition permit from City’s Building Division for the removal of the non-conforming signs; and (2) issuance of a building permit for the approval and installation of the Digital Billboard, and (3) termination and permanent discontinuance of the adult use.

The Parties understand and agree (i) this Amended Agreement does not bind City to approve the Development Approvals or any extensions thereto ; (ii) all Development Approvals can be approved and take effect, if at all, only after all applicable notice, public hearing, review, and consideration requirements required by law have been satisfied; and (iii) Owner shall not be required to take any of the actions or provide any of the benefits to City under this Amended Agreement until and unless all required Devel opment Approvals are provided in final form. The Parties further agree Owner shall not be obligated to commence demolition or construction related to the Project, including removal of the Nonconforming Sign, if any of the Development Approvals are not iss ued or expire and are not extended for the necessary periods, pursuant to the City’s Development Code. Notwithstanding the foregoing, Owner will cease operation of the adult use on the Site.

1. INSTALLATION AND OPERATION OF DIGITAL BILLBOARD.

1.1 Provided Owner secures and maintains all Development Approvals required under Section 5, below, and within the times set forth in this Amended Agreement and the Schedule of Performance included in Exhibit “D,” Owner, at its sole cost and expense, may install the Digital Billboard upon the Site. For the entire term of this Amended Agreement, the Digital Billboard and Owner’s installation, construction, and operation of the Digital Billboard shall comply with all applicable Federal, State, and local laws and regulations, this Amended Agreement, all applicable provisions of the Colton Municipal Code, all conditions of approval applicable to any Development Approvals for the Digital Billboard.

2. MILESTONES

2.1 As demonstrated in the Schedule of Performance included in Exhibit “D,” the timeline provided by Owner shall be considered the “Milestones”. The Milestones listed in Exhibit “D” provide the deadlines which the Owner must abide by per the Amended Agreement. Should Owner fail to reach the milestone by the date listed in Exhibit “D”, the Owner shall be found to be in default of the Amended Agreement.

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6 2.2 Owner shall have a two (2) year period from the effective date of this Amended Agreement to evaluate market conditions as it relates to advertising and future construction of the Digital Billboard. Owner shall obtain a building permit for construction of the Digital Billboard within such two (2) year period or the provisions related to the Digital Billboard structure contained in this Amended Agreement shall be of no further force or effect and Owner will be required to obtain new entitlements for the Digi tal Billboard structure. All other provisions shall survive.

2.3 It is acknowledged that Owner has ceased the adult use operations occurring on the Site prior to the effective date of this Amended Agreement. Notwithstanding anything to the contrary contained herein, Owner shall not re-establish an adult use, as that term is defined in the Colton Municipal Code, on the Site.

2.4 Reserved.

2.5 Should Owner, upon submittal of a written request and for good cause shown, require an extension for the Milestones, the City’s City Manager shall be authorized to grant up to thirty (30) days extension for each milestone.

2.6 The applicable provisions of Subsection 14.4 below, shall apply if the Owner fails to meet his Milestones. Failure to comply with any term in this Amended Agreement will result in an automatic termination of this Amended Agreement without the need to conduct any hearings to allow Owner to explain or dispute their noncompliance. Should any adult use be re-established on the Site, City shall have the right to enforce the terms of the prior Consent Decree.

3. MAINTENANCE AND OPERATION OF DIGITAL BILLBOARD.

Owner shall at its sole cost and expense pay for all maintenance and operation costs associated with operating the Digital Billboard. Should the Digital Billboard and the surrounding site not be maintained in accordance with all City laws, codes and ordinances, City shall provide Owner with notice pursuant to Section 14.2 and 14.4 of this Amended Agreement. If Owner fails to cure within the time period provided and this Amended Agreement is terminated by the City, Owner shall be required to remove the above-ground portions of the Digital Billboard at its sole cost and expense.

Any graffiti or tagging of the Digital Billboard shall be removed within 48 hours of written notice to Owner by the City.

4. ADVERTISING & PUBLIC SERVICE ANNOUNCEMENTS.

4.1 The Parties acknowledge that public advertising is an important form of public communication. City desires to preserve this type of communication while preserving the character of the community and prevent exposure of its residents to advertising which City’s residents might find offensive. Accordingly, Owner has agreed to prohibit advertising that is misleading, offensive, or otherwise incompatible with community standards, and in particular, the posting of obscene words or pictorial content and advertisements for adult businesses and related events and products, marijuana/cannabis services or tobacco related businesses, events and products. Notwithstanding this voluntary prohibition, at such time as the City of Colton licenses a marijuana dispensary within its corporate boundaries, the prohibition on marijuana/cannabis advertising shall no longer be

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7 restricted. In addition, Owner shall operate in compliance with the California Outdoor Advertising Act and the Outdoor Advertising Association of America’s Code of Industry Principles.

4.2 Public Service Announcements . Subject to the conditions and parameters of this Section, Owner agrees to provide free advertising time on the Digital Billboard for noncommercial City events and public service announcements to promote the civic interests of the City (“Public Service Announcements”).
(a) General. At the request of the City Manager or the City Manager's designee, Owner shall make the Digital Billboard available to the City for the purpose of displaying the City's own non-commercial messages, at no less than ten percent of the messages displayed during each one hour period (i.e. six (6) minutes per hour). The City’ s messages must meet Owner's graphics-arts standards so that the messages are "camera ready," at no cost to Owner. (b) Process for City Requests to Utilize Advertising Space for Public Service Announcements. City shall be responsible for providing Owner with its Public Service Announcements, which may be updated by City at any time, and for any costs associated with providing Owner with associated artwork in acceptable format. City shall notify Owner at leas t forty-five (45) days before the proposed display date of a Public Service Announcement. City must submit “camera ready art” utilizing formats and protocols acceptable to Owner from time to time or pay production costs. All copy shall be submitted to Owner at least ten (10) business days in advance. Public Services Announcements will continue to be subject to Owner’s standard advertising copy rejection and removal polic ies (Code of Advertising Practices), which allow Owner, in its sole discretion, to approve or disapprove copy and remove copy once posted or displayed that, by way of example, contain content that is misleading, sexually explicit, overly suggestive, or in any way reflects upon the character, integrity of standing of any organization or individual.
(c) Limitations on City Usage. City shall not charge for, or exchange goods or services for, any advertising space on the Digital Billboard provided by Owner to City pursuant to this Amended Agreement. In addition, it is expressly understood and agreed that Public Service Announcements may not include any names, logos, marks, products, or services associated with any commercial entity or any third party non-governmental person or entity that is not sponsored by or affiliated with the City. The forgoing limitation shall not be construed to prohibit the display of names, logos, or marks of nonprofit organizations associated with City events or activities. (d) Indemnity. City shall and hereby does agree to indemnify, defend and hold harmless Owner for, from and against, any claims, costs (including, but not limited to, court costs and reasonable attorney’s fees), losses, actions, or liabilities arising from or in connection with any third party allegation that any portion of any Public Service Announcement provided by City infringes or violates the rights, including, but not limited to, copyright, trademark, trade secret or any similar right, of any third party. This indemnity obligation shall not include Owner’s lost profits or consequential damages.
(e) Public service messages shall be accommodated at no additional charge, and shall constitute at least ten percent of the messages displayed during each one-hour period (i.e. six

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8 (6) minutes per hour). These public service messages are in addition to the required time and temperature displays. The City shall have authority to review and approve public service messages. (f) Public Safety Announcements. In addition, Owner shall authorize City to use advertising space on the Digital Billboard for regional emergency announcements and alerts, Amber Alerts, and wanted criminal postings from law enforcement, without charge, as reasonably necessary, in accordance with applicable local, regional, and/or state protocol.

4.3 Digital Billboard Lighting/Brightness. It is acknowledged that manufacturers have developed sophisticated software control systems for displays. These systems provide diagnostics that typically include monitoring electrical supply, status of the sign, automatic calibration of pixels, automatic dimming of light intensity, and temperature control. Automatic dimming systems detect ambient light levels and optimize the light intensity to reduce brightness at night and increase the life of the displays. The Digital B illboard shall be provided with a n ambient light sensor that automatically adjusts the brightness level s of the Digital Billboard based on ambient light conditions. Such sensor shall remain operational during the life the Digital Billboard.

5. DEVELOPMENT APPROVALS.

5.1 General. Owner shall, at its own expense and before commencement of demolition, construction, rehabilitation or development of the Non -conforming Sign, the Digital Billboard or other work of improvement upon the Site, secure or cause to be secured all necessary permits and approvals, which may be required by City, or any other governmental agency or utility affected by such construction, development or work to be performed by Owner or a lessees of Owner’s related to the Project, including, but not limited to, all permits and approvals required pursuant the Colton Municipal Code, building and demolition permits, and all approvals required by the California Department of Transportation (“Caltrans”) pursuant to the California Outdoor Advertising Act (“Act”) and under CEQA and the State CEQA Guidelines required for the Development Approvals (collectively "Development Approvals"). Not by way of limiting the foregoing, in developing and constructing the Project, Owner shall comply with all (1) then applicable devel opment standards and requirements contained in, or promulgated under, any applicable state law and/or the Colton Municipal Code, (2) conditions of approval related to each of the Development Approvals applicable to the Digital Billboard, (3) necessary NPDES requirements pertaining to the Project, (4) applicable permits for construction, use, encroachment onto public rights-of-way from Caltrans and the City of Colton within the respective portions of each agency’s jurisdiction; (5) all building codes, and, (6) if applicable, landscaping requirements of the Development Approvals, except as may be permitted through approved variances and modifications. Owner shall pay all normal and customary fees and charges applicable to such permits, and any fees and charges hereafter imposed by City in connection with the Development Approvals which are standard for and uniformly applied to similar projects in City.

5.2 Agreement Not a Grant or Prejudgment of Development Approvals . Owner understands the approval of this Amended Agreement shall not be deemed or construed as granting any Development Approvals yet to be obtained from City or any other entity having jurisdiction over the Project. It is expressly understood by the Parties hereto that City makes no representations or warranties with respect to Development Approvals, nor does City make any representation or warranty that City will exercise, in any manner or at al l, its discretionary police power authority

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9 over the Project as to any Development Approvals described in Section 5 in any particular manner.

Nothing in this Amended Agreement shall be deemed to be a prejudgment or commitment with respect to such items or a guarantee Development Approvals will be issued within any particular time or with or without any particular conditions.

6. CONSTRUCTION TERM & TERM OF AMENDED AGREEMENT.

6.1 Notwithstanding anything to the contrary in this Amended Agreement or the entitlements granted by the City, the right to construct the Digital Billboard (but not the other improvements on the Site) shall lapse twe nty-four (24) months from the effective date (d ate of recordation) of this Amended Agreement. Upon submitting a letter prior to the expiration of such 24 month term, and for good cause shown, the City Manager of the City of Colton may extend the construction term for an additional sixty (60) days.

6.2 Unless earlier terminated as provided in this Amended Agreement, this Amended Agreement shall continue in full force and effect for a twenty (20) year period (“Original Term”) commencing on the Commencement Date. The “Commencement Date” shall be the day that all of the following are true: (i) Owner has obtained all Development Approvals for the Digital Billboard, and all appeal periods with respect to such approvals have expired, and (ii) the Non -conforming Sign is removed in accordance with this Amended Agreement; and (iii) the Digital Billboard is fully constructed and operational, has electrical power from a permanent source, and has passed the City’s final inspection(s).

6.3 Extensions of the Term. City in its sole and absolute discretion, and assuming this Amended Agreement has not been terminated in accordance with the provisions set forth herein, may extend the Original Term for two (2) additional periods of five (5) years (each, an “Extended Term”). Each such extension shall be on the identical terms and with the rate increases and renegotiations as outlined in this Amended Agreement. It is expressly understood and agreed that, in the event Owner is unable to operate the Digital Billboard on the Site with digital faces at the time of termination or expiration of this Amended Agreement such extension shall allow the operation of the Digital Billboard sign structure with non -digital sign faces provided the annual mitigation fee described in Section 7 .2 is paid to City. At the end of the term or the end of any extension of the term, Owner shall either remove the Gateway sign or negotiate an extension of term pursuant to the time limits contained herein.

6.4 Expiration or Termination. Following expiration or termination of this Amended Agreement, and within ninety (90) days after the effective date of the expiration or termination, Owner shall, at its sole cost and expense, secure all required permits to, and shall, remove and properly transport the Digital Billboard from the Site, and not store any portion of the removed Digital Billboard on the Site or any other location within City’s jurisdictional boundaries. If Owner fails to remove the Digital Billboard from the Site within ninety (90) days of expiration or termination of this Amended Agreement, as provided above, City shall be entitled to remove the Digital Billboard and dispose of the same with no compensation of any kind to Owner. The applicable provisions of Subsection 14.4 below, shall apply if City is required to exercise its rights to remove and dispose of the Digital Billboard pursuant to this Section.

7. PROCESSING FEES AND ANNUAL MITIGATION FEE.

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10 7.1 Processing Fees. Concurrently with the execution of this Amended Agreement and pursuant to the resolution approving this Amended Agreement, Owner shall pay any outstanding processing and/or reimbursement fees for the City’s out -of-pocket outside counsel fees in connection with the review and processing of this Amended Agreement and Owner’s application for permits hereunder (all such fees, the “Processing Fees”).

7.2 Annual Mitigation Fee. Owner and City agree that an annual fee paid by Owner to City would help mitigate the aesthetic, visual, cultural, economic, and other impacts of the Project on City and the surrounding community, because that fee will provide City resources to fund the provision and maintenance of other aesthetic improvements and cultural events in the City, including, but not limited to, the provision and continued maintenance of community events, street furniture, bike racks, landscaping within the parks and public rights -of-way, park improvements, banners, public art, and other existing and future improvements within the City and the area adjacent to the Site. The Parties therefore agree Owner shall pay City an annual mitigation fee for each Digital Billboard face, as set forth in Exhibit “E,” hereto, which is incorporated herein by this reference (the "Annual Mitigation Fee"). The first payment of the Annual Mitigation Fee shall be paid no later than ninety (90) days after the Commencement Date. Ea ch year thereafter each remaining payment shall be made on or before the annual anniversary of that first payment. It is expressly understood and agreed that in the event Owner removes the digital display unit from either face of the Digital Billboard and temporarily or permanently replaces such digital display unit with a non- digital face, for any reason, then the amount of the Annual Mitigation Fee payable thereafter with respect to such sign face shall be fifty (50%) percent of the Annual Mitigation Fee amount(s) set forth in Exhibit “E” for those annual period(s) or portions thereof during which the sign face is not operated as a Digital Billboard; provided, however, that if Owner subsequently reinstalls a digital display unit and operates the sign face as a Digital Billboard, Owner’s obligation to pay the full Annual Mitigation Fee with respect to that sign face shall re-commence, payable on a pro-rata basis following the date of such reinstallation with respect to the annual period during which the digital display is reinsta lled, and annually thereafter as long as the sign face is operated as a Digital Billboard.

7.3 Renegotiation of Annual Mitigation Fee . The annual mitiga tion fee shall be renegotiated under the following circumstances:
(a) On the ten (10) year anniversary (from the Commencement Date) if, the original Owner is no longer the owner of the Digital Billboard; and (b) On the twentieth (20) year anniversary (from the Commencement Date) of this Amended Agreement; and
(c) On the twenty-fifth (25) year anniversary (from the Commencement Date), as applicable.
(d) For purposes of this subsection and the applicability of the obligation to renegotiate the annual mitigation fee, “original Owner” shall mean the registered and current owner of the property on the effective date of this Amended Agreement and/or the transfer or assignment of 100% of the ownership of the Property by the original Owner (Todd Gibboney) to an heir or third party pursuant to this Amended Agreement.

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11 8. REGULATION BY OTHER PUBLIC AGENCIES.

It is acknowledged by the Parties that other public agencies, including, but not limited to, Caltrans, are not subject to control by City and may possess authority to regulate aspects of the Project as contemplated herein, and this Amended Agreement does not limit the authority of any of those other public agencies. Owner acknowledges and represents, in addition to City's regulations, Owner shall, at all times, comply with all applicable Federal, State and local laws and regulations applicable to the Digital Billboard and the Site. To the extent such other public agencies preclude development or maintenance of the Digital Billboard , Owner shall not be further obligated under this Amended Agreement, except as provided in Section 9 and payment of the Processing Fee and Development Fees.

9. INDEMNITY, COVENANT NOT TO SUE, THIRD PARTY CHALLENGES, AND INSURANCE.

9.1 Indemnity. Owner, as a material part of the consideration to be rendered to City under this Amended Agreement, hereby waives all claims against City for damage to property and for injuries to persons in or about the Site or the Existing Sites, or from any cause relating to Owner's activities related to this Amended Agreement. Owner shall defend, indemnify and hold, City, its officials, officers, and agents harmless from any and all claims, liabilities, losses, costs, expenses, damages, injuries to property or persons, including wrongful death, in any manner arising out of or incident to any negligent acts, omissions or willful misconduct of Owner, its officers and employees, agents, consultants and contractor(s)s arising out of or in connection with Owner’s obligations under this Amended Agreement or the removal, past -removal, construction and installation of the aforementioned Billboards, including without limitation, the payment of all consequential damages, reasonable attorney’s fees and other related cost s and expenses. At a minimum, this indemnification provision shall apply to the fullest extent of any warranty or guarantee implied by law or fact, or otherwise given to Owner by Owner's contractor(s) for the removal, past-removal, construction and installation of the Billboard improvements referenced in this Amended Agreement. In addition, this indemnity provision and any such warranties or guarantees shall not limit any liability under law of such contractor(s). Without limiting the foregoing, this indemnity shall extend to any claims arising because Owner has failed to properly secure any necessary contracts or permit approvals. Except, however, Owner’s defense and indemnity obligations do not extend to any claims, liabilities, losses, costs, expenses (including reasonable attorneys’ fees), damages, injuries to property or persons including wrongful death, arising out of or incident to any negligent acts, omissions or willful misconduct of City, its officials, officers and agents.

Owner will defend, with counsel reasonably approved by the City, any action or actions filed in connection with any of said claims or liabilities covered by the indemnification provisions herein once notified of the existence of such claims by the City and will pay all costs and expenses, including reasonable legal costs and attorneys' fees incurred in connection therewith.

The foregoing indemnity shall not include claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents, subcontractors or employees, who are directly responsible for the City.

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12 Notwithstanding any other provision of this Amended Agreement, Owner's indemnification obligations as set forth in this Amended Agreement shall survive the termination of this Amended Agreement.

9.2 Covenant Not To Sue. The Parties to this Amended Agreement, and each of them, agree this Amended Agreement and each term hereof is legal, valid, binding, and enforceable. The Parties to this Amended Agreement, and each of them, hereby covenant and agree that each of them will not commence, maintain, or prosecute any claim, demand, cause of action, suit, or other proceeding against any other Party to this Amended Agreement, in law or in equity, which is based on an allegation, or assert in any such action, that this Amended Agreement or any term hereof is void, invalid, or unenforceable.

9.3 Third Party Challenge. In the event of a challenge to this Amended Agreement, and a final court order or judicially approved settlement resulting in the removal of the Digital Billboard, Owner shall be entitled, in its sole discretion, to replace the removed Digital Billboard with an on premise advertising sign in compliance with the then -applicable City codes and ordinances. If Owner exercises such right, then Owner shall not be required to pay the City the Annual Mitigation Fee for the replacement non -Digital Billboard face(s) and the City shall not be entitled to claim any lost revenues or damages as a result of such election by Owner.

9.4 Insurance. During the entire Term of this Amended Agreement, without any period of lapse, Owner shall procure and maintain, at its sole cost and expense, in a form and content reasonably satisfactory to City, the following policies of insurance:
(a) Commercial General Liability Insurance . A policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least Five Million Dollars ($5,000,000.00) bodily injury and property damage including coverages for contractual liability, personal i njury, independent contractors, broad form property damage, products and completed operations. The Commercial General Liability Policy shall name City as an additional insured.
(b) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California.

The Commercial General Liability Insurance policy(ies) of insurance shall, either as part of each policy or by endorsement (i) name the City Parties as additional insureds, (ii) provide the policy shall be primary and noncontributing with any other insuran ce or self -insurance program available to City with respect to liabilities assumed by Owner under this Amended Agreement, (iii) include a severability of interest clause, (iv) provide any general aggregate limit shall apply separately to this Amended Agreement; and (v) provide the naming of the additional insureds as herein provided shall not affect any recovery to which such additional insureds would be entitled under this policy if not named as such additional insureds, (vi) provide the additional insured s named herein shall not be held liable for any premium or expense of any nature on the policy or any extension thereof, and (vii) provide the insurance may not be materially amended or cancelled without providing thirty-days' (30-days') prior written notice to City.

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13 Within five (5) business days after the execution of this Amended Agreement and within at least thirty (30) days after the renewal of any such policy, Owner shall provide City with certificates of insurance evidencing the required coverages and a copy of the endorsements (or blanket endorsements) offering additional insu red status to the City Parties. In addition, Owner, upon reasonable notice by City, shall make available for inspection by City at Owner's office, copies of relevant policy forms and endorsements of said insurance policies.

The foregoing insurance requirements may be waived or reasonably modified on behalf of the City in the sole discretion of the City's Finance Director.

10. OWNERSHIP OF IMPROVEMENTS. The Digital Billboard shall be and remain the property of Owner. Owner's rights and powers with respect to the Digital Billboard are subject to the terms and limitations of this Amended Agreement and the Colton Municipal Code.

11. WAIVER OF CIVIL CODE SECTION 1542. Owner understands and agrees that benefits granted by this Amended Agreement are Owner’s sole and only remedy for the discontinuation of the adult use and removal of any non -conforming sign. It is the intention of the Parties that the releases entered into as part of this Amended Agreement shall be effective as a bar to all actions, causes of action, obligations, costs, expenses, attorneys' fees, damages, losses, claims, liabilities and demands of any character, nature and kind, known or unknown, suspecte d or unsuspected, including claims by Owner for any compensation from removal of any signs described in this Amended Agreement, to be so barred; in furtherance of which intention the Parties expressly waive any and all right and benefit conferred upon them by the provisions of section 1542 of the California Civil Code, which reads as follows:
“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

12. OWNER’S TERMINATION RIGHTS. Without prejudice to its other remedies at law or in equity, including the right to seek just compensation under the laws of eminent domain, Owner may terminate this Amended Agreement, at any time and in its sole discretion, effective 30 days after Owner gives the City written notice of termination, if any of the following circumstances occurs:

12.1 The view of the Digital Billboard’ display area from the portion of Interstate 215 adjacent to the Site is materially obstructed, and Owner did not cause the obstruction. If this obstruction is caused by vegetation, City and Owner will work to resolve obstruction in a timely manner.

12.2 Owner cannot safely use the Site to install, operate, maintain, repair, or improve the Digital Billboard because of a non-remediable condition, and Owner did not cause the condition.

12.3 There is a material diversion of traffic from, or a material reduction or change in the directional flow of traffic on, the portion of Interstate 215 adjacent to the Site, and the diversion or disruption continues uninterrupted for at least 24 consecutive months. During the period of time that there is a material diversion or reduction of traffic on the portion of Interstate 215 adjacent to the Site, Annual Mitigation Fees shall be temporally halted until traditional traffic flow is restored.

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14 12.4 Through no fault of its own, Owner cannot obtain or maintain the governmental permits required to install, operate, maintain, repair, or improve the Digital Billboard, including the Caltrans Permits and the City Permits.

12.5 Use of the Digital Billboard for their intended purpose is prevented or limited by law, or Owner is required by any court or other governmental entity, for reasons other than eminent domain, to remove the Digital Billboard from the Site.

12.6 In lieu of termination, Owner may request that the City negotiate on reducing the Annual Mitigation Fee to an amount that reasonably reflects the diminished value of the Digital Billboard to Owner, and on receiving the request the City shall negotiate in good faith with Owner. The City is not required, however, to agree to reduction.

13. ASSIGNMENT.

13.1 Right to Assign. Owner shall have the right to sell, transfer or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410 et seq., to any person, heir, partnership, joint venture, firm or corporation at any time during the term of this Amended Agreement; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Amended Agreement and be made in strict compliance with the following conditions precedent:
(a) No sale, transfer or assignment of any right or interest under this Amended Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property.
(b) Concurrent with any such sale, transfer or assignment, or within fifteen (15) business days thereafter, Owner shall notify City , in writing, of such sale, transfer or a ssignment and shall provide City with an executed agreement, in a form reasonably acceptable to City, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties and obligations of Owner under this Amended Agreement.
(c) Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by Owner under this Amended Agreement.

Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b) of this Subsection , the burdens of this Amended Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Amended Agreement shall not inure to such purchaser, transferee or assignee until and unless such agreement is executed.

13.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring Owner shall continue to be obligated under this Amended Agreement unless such transferring Owner is given a release in writing by City , which release shall be provided by City upon the full satisfaction by such transferring Owner of the following conditions:

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15 (a) Owner no longer has a legal or equitable interest in all or any part of the Property.
(b) Owner is not then in default under this Amended Agreement. (c) Owner has provided CITY with the notice and executed agreement required under this Section.

13.3 Subsequent Assignment. Any subsequent sale, transfer or assignment after an initial sale, transfer or assignment shall be made only in accordance with and subject to the terms and conditions of this Section.

14. GENERAL PROVISIONS.

14.1 Waivers. The waiver by any party of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of any other term, covenant or condition, or of any subsequent breach of the same term, covenant or condition.

14.2 Notices. All notices and other communications required or permitted to be given hereunder shall be in writing and shall be sent by: (a) certified or registered mail, postage pre-paid, return receipt requested, (b) personal delivery, or (c) a recognized overnight carrier that provides proof of delivery, and shall be addressed as follows:

If to City:

With a Copy to:

If to Owner:

With a Copy to:

City of Colton
Attn: Bill Smith, City Manager
659 N. La Cadena Dr.

Colton, CA 92334

City of Colton
Attn: City Attorney
74760 CA-111
Suite 200
Indian Wells, CA 92210

Todd Gibboney
2680 S. La Cadena Dr.

Colton, CA 92324

Henry Garcia
461 Green Orchard Pl.

Riverside, CA 92506

Notices shall be deemed effective upon receipt or rejection only.

14.3 Authority to Execute. The persons executing this Amended Agreement on behalf of the Parties warrant that they are duly authorized to execute this Amended Agreement, and that by executing this Amended Agreement, the Parties are formally bound

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16 14.4 Termination. This Amended Agreement shall be terminated, for good cause, by City or Owner if either gives the other party sixty-days’ (60-days) written notice of default and if that default is not corrected (i) on or before ten (10) days after receipt of the notice for non-payment of any amount due and (ii) within sixty (60) days after receipt of the notice for any other good cause; provided, however, that if a non -monetary default cannot be reasonably be cured within sixty (60) days after receipt of the notice of default the non-defaulting party shall not have the right to terminate this Amended Agreement pursuant to this clause (ii) as long as the defaulting party has commenced to cure the default within said 60 -day period and thereafter proceeds to cure the default with commercially reasonable diligence.

If this Amended Agreement terminates due to non -performance by Owner, then (i) any remaining unpaid Annual Mitigation Fee that was due for any period before the date of that termination shall be immediately due and payable to City; and (ii) Owner shall immediately remove each of the Digital Billboard installed pursuant to this Amended Agreement, provided, that if Owner fails to remove any of the Digital Billboard within ninety (90) days after this Amended Agreement is terminated pursuant to this subsection, then City shall be entitled to remove the remaining the Digital Billboard and dispose of same. If City is required to exercise its rights under Section 6.4 or this subsection due to Owner's failure to remove the Digital Billboard, then City shall be entitled to be reimbursed by Owner any and all expenses incurred by City in exercising its rights under this subsection within no more than ten (10) days following City's delivery of an invoice demanding payment for such expenses. Any such removal of any or all the Digital Billboard by City shall not entitle Owner or Owner to any damages of any kind whatsoever against any or all City Parties, and Owner hereby releases all City Parties from Indemnified Claims and Liabilities for any action by any of the City Parties in removing any or all of the Digital Billboard.

14.5 Amendment/Modification. No supplement, modification, or amendment of this Amended Agreement shall be binding, unless in writing and signed by the Parties.

14.6 Attorney’s Fees. In the event of litigation between the Parties arising out of this Amended Agreement, each Party shall bear its own attorneys' fees and costs.

14.7 Time is of the Essence. Time is of the essence of each and every provision of this Amended Agreement.

14.8 Miscellaneous. This Amended Agreement embodies the entire Amended Agreement between the Parties and supersedes any prior or contemporaneous understandings between the Parties related to the subject matter of this Amended Agreement. If any provision of this Amended Agreement is held to be invalid, the balance shall remain binding upon the Parties.

This Amended Agreement shall be interpreted in accordance with its plain meaning, and not in favor of or against either Party. This Amended Agreement shall be construed according to the laws of the State of California. In the event of litigation to enforce or interpret any terms of this Amended Agreement, such action will be brought in the Superior Court of the County of San Bernardino.

14.9 Counterparts. This Amended Agreement may be signed in counterparts, each of which shall constitute an original.

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17 14.10 Successors and Assigns. This Amended Agreement applies to, inures to the benefit of, and binds all parties hereto and their respective successors and assigns and shall be recorded against the Subject Site.

14.11 Severability. Except for the terms in Section 8 of this Amended Agreement, if any other provisions of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby.

14.12 Recordation; Memorandum of Amended Agreement. Concurrently with the Effective Date of this Amended Agreement, Owner shall cause to be recorded against the Site property an executed version of this Amended Agreement or a Memorandum of Amended Agreement setting forth a summary of the terms, conditions and responsibilities of the parties associated with this Amended Agreement.
[SIGNATURES ON FOLLOWING PAGE]

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18 IN WITNESS WHEREOF, the Parties have caused this Amended Agreement to be executed on the date set forth below.
“CITY”

ATTEST: CITY OF COLTON, a municipal
corporation

By: By:

City Clerk City Manager

APPROVED AS TO FORM:

By:

City Attorney

“OWNER”

By:

Its:

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EXHIBIT A-1
[INSERT AMENDED AGREEMENT HERE]

EXHIBIT "A"

LEGAL DESCRIPTION OF THE SITE
Owner is the owner in fee of that certain real property located at 2680 South La Cadena Drive in the City of Colton, San Bernardino County, California (the “Owner Property”).

The Owner Property is situated along the westerly side of the Interstate 215 freeway, a designated Landscaped Freeway within the meaning of Business & Professions Code §5216, a provision of the Outdoor Advertising Act.

Legal Description:

LICENSED LAND SURVEYORS MAP PTN SEC 6 TP 2S R 4W AND PTN LOT E AS SHOWN

ON SD MAP COM ON NLY PROLONGATION ELY LI COLTON AVE AS SHOWN ON SD MAP DISTANT ALG SD PROLONGED LI 200 FT NLY FROM NWLY COR SD LOT E TH S 68 DEG 26 MIN 06 SECONDS E 97.56 FT TO TRUE PO B TH CONT S 68 DEG 26 MIN 06 SECONDS E 229.87 FT TH S 40 DEG 11 MIN 52 SECONDS W 218.73 FT TH N 28 DEG 50 MIN 00 SECONDS W 72.63 FT TO BEG OF A TANGENT CURVE CONCAVE ELY AND HAVING A RADIUS OF 300 FT TH NLY ALG SD TANGENT CURVE THRU AN ANGLE OF 28 DEG 20 M IN 00 SECONDS AN ARC DISTANCE OF 148.35 FT TH TANGENT TO SD CURVE N 0 DEG 30 MIN 00 SECONDS W 45.88 FT TO TRUE POB EX MNL RTS

RESERVATION OF RECORD

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EXHIBIT B-1
EXHIBIT "B"

NON-CONFORMING SIGN EXHIBIT

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EXHIBIT C-1
EXHIBIT “C”

DIGITAL BILLBOARD EXHIBIT

LOCATION & DESIGN
[On following pages]

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EXHIBIT D-1
EXHIBIT “D”

SCHEDULE OF PERFORMANCE
Items to be Performed Performance Time
Owner to close Adult Club (Club 215) COMPLETED
Owner to order poles/sign structure WRITTEN NOTICE TO CITY TO BE PROVIDED WITHIN TWO (2) YEARS

FROM EFFECTIVE DATE OF
AGREEMENT*
Owner to order reader board WITHIN TWO (2) MONTHS FROM DATE

OF WRITTEN NOTICE TO CITY
Owner to submit proof of orders WITHIN TWO (2) MONTHS AND TWENTY (20) DAYS OF WRITTEN

NOTICE TO CITY
Owner to complete construction 60-120 DAYS FROM DATE OF DELIVERY

OF POLE(S)
Owner to request final building inspection ON OR BEFORE 120 th DAY FROM

ISSUANCE OF BUILDING PERMIT (OR

ANY EXTENSION GRANTED)
* Note: Section 6.1 authorizes one (1)- 60-day extension of 24-month term.

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EXHIBIT E-1

EXHIBIT E

ANNUAL MITIGATION FEE
Owner and City agree that an annual fee paid by Owner to City would help mitigate the aesthetic, visual, cultural, economic, and other impacts of the Project on City and the surrounding community, because that fee will provide City resources to fund the provision and maintenance of other aesthetic improvements, cultural events and other public benefits in the City. The Parties therefore agree that Commencing 90 days after completion of Construction of the Digital Billboard, Owner shall pay City an Annual Mitigation Fee (Fee Commencement Date). The Annual Mitigation Fee shall commence at a rate of one hundred thousand dollars ($100 ,000) or thirty percent (30%) of gross revenue, whichever is greater and, except for the first year, shall be paid on each anniversary of the Fee Commencement Date throughout the term of this Agreement and any subsequent extensions. The amount of the Annual Mitigation Fee shall be increased yearly by a percentage equal to the percentage increase in the Consumer Price Index for all Urban Consumers (All Items) in the Los Angeles Area as de termined by the U.S. Bureau of Labor Statistics over the preceding year and shall subject to the renegotiation provisions of Section 7.3.

For purposes of this section, “gross revenue” means all gross advertising revenue amounts actually received by Owner from the sale of media placed or displayed upon the Digital Billboard during the Term, without exclusions or set off.

The owner shall be required to file a Federal Income Tax (Schedule C) solely for the Digital Billboard and provide a copy to the city concurrently with payment of the annual mitigation fee reflecting the gross revenue generated by the Digital Billboard.

The Annual Mitigation Fee will be evenly distributed between each Digital Face of the Digital Billboard (north and south).

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ITEM NO. 3

STAFF REPORT

DATE: JUNE 4, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: STACEY DABBS, FINANCE DIRECTOR
SUBJECT: APPROVE VOUCHER NUMBERS 212273 TO 212369 DATED 05/02/2024 AND TOTALING $1,466,635.26; WIRES DATED 05/06/24 AND TOTALING $2,916,095.10; VOUCHER NUMBERS 212370 TO
212466 DATED 05/09/2024 AND TOTALING $535,325.36 AND A
PAYROLL DISBURSEMENT LISTING DATED 04/13/2024 TO
04/26/2024 TOTALING $1,172,137.08.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

Approve voucher numbers 212273 to 212369 dated 05/02/2024 and totaling $1,466,635.26; wires dated 05/06/24 and totaling $2,916,095.10; voucher numbers 212370 to 212466 dated 05/09/2024 and totaling $535,325.36 and a payroll disbursement listing dated 04/13/2024 to 04/26/2024 totaling $1,172,137.08.

BACKGROUND

The California Government Code requires that the legislative body ratify all vouchers issued in the course of conducting City business.

ISSUES/ANALYSIS

All vouchers and related backup documentation have been reviewed by the City Treasurer.

FISCAL IMPACTS

None.

3 Packet Pg. 148
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Warrants - Accounts Payable
June 4, 2024

Page 2 ends

ALTERNATIVES

1. Provide alternative direction to staff.

ATTACHMENT

1. Fund Number and Title Legend

2. Voucher lists

3. Payroll Registers
3 Packet Pg. 149
City of Colton
Fund Number and Title Legend
Fund Title Fund Title
100 GENERAL FUND 701 LLMD #2
150 TREASURERS ACCOUNT GROUP 702 LLMD #1
206 COMMUN ITY CHILD CARE 703 CFO 87-1 DEBT SERV ICE
209 DSF FLY CONSERVATION 704 CFO 87-1 CONSTRUCT ION
210 SPECIAL GAS TAX 707 CFO 88-1 DEBT SERV ICE
211 LIBRARY GRANT FUND 708 CFO 88-1 CONSTRUCTION
212 STATE TRAFFIC RELIEF FUND 709 DSF FLY CONSERVATION
213 S.Y.E.T .P. GRANT 722 STORM WATER
214 POLLUT ION REDUCT ION FUND 733 CFO 89-1 CONSTRUCT ION 215 COMMUNITY DEV ACT FUND 734 CFO 89-2 CONSTRUCT ION
216 CDBG HOUS ING REHAB FUND 744 CFO 89-1 DEBT SERV ICE 217 DRUG/GANG INTERVENTION 745 CFO 89-2 DEBT SERV ICE
218 MEASURE I FUND 750 AQUA MANSA CFO
219 STATE AID- CAPITAL PROJECTS 754 SB COUNTY HOSPITAL
220 Vi Tep 762 TRUST AND AGENCY
225 MISC GRANTS 766 DEFERRED COMPENSAT ION
240 HOST CITY FEES - CIP 781 CFO 90-1 DEBT SERVICE
247 Quimby In Lieu Fees 782 CFO 90-1 CONSTRUCT ION
248 PARK DEVELOPMENT FUND 850 Redeve lopment Obligation Retirement Fund 249 TRAFF IC IMPACT FUND 851 Successor Agency Administration 250 NEW FAC ILITIES DEVELOPMENT FEE 855 Hous ing Auth - RM PARK DEVELOPMENT 251 CIVIC CENTER DEVELOPMENT FEE 856 Housing Auth - RANCHO MED BOND PROCEEDS 252 FIRE FAC ILITY DEVELOPMENT FEE 857 LMI Asset Fund
253 POLICE FACILITY DEVELOPMENT FEE 864 Housing Auth - LOW/MOD BOND PROCEEDS 261 ASSET FORFEITURE 865 Housing Auth - RANCHO MED CHFA 326 AD 94-1 DEBT SERVICE 866 ECONOM IC DEVELOPMENT
332 1971 SEWER BONDS, A & C 867 Consolidation Proj_08 -09 350 PFA Debt Fund 870 Housing Auth - RM PARK OPERAT IONS 357 POB-Non Enterprise 871 Successor Agcy-RANCHO/M ILL PROJECT AREA 358 PENS ION OBLIGATION DEBT SERV ICE 872 Succe ssor Agcy-RANCHO/MILL DEBT SERV ICE 359 CORP YARD DEBT SERV ICE 873 Successor Agcy-RDA II PROJECT FUND 363 1978-2 ASSESSMENT DIST . 874 Housing Auth - LOW/MOD DEBT SERV ICE 364 WATER IMPRVMNT DIST A 875 Housing Auth - LOW/MOD BOND PROCEEDS 379 AD 1979-1 DEBT SERV ICE 876 Successor Agcy-SANTA ANA RIV BND PROCEED 427 AD 94-1 CONSTRUCT ION 877 Successor Agcy-SANTA ANA RIVER CIP 450 Capita l Improvement Project s 878 RDA FIXED ASSETS GROUP 451 Colton Crossing Fund 879 Successor Agcy-WEST VALLEY CIP 453 STREET IMPROVEMENTS PRGM 881 Successor Agcy-MT VERNON BOND PROCEEDS 457 CAP ITAL IMPROVEMENT 882 Successo r Agcy-MT VERNON CIP 469 EQU IPMENT REPLACEMENT 885 Successor Agcy -MT VERNON DEBT SERV ICE 520 ELECTR IC UTILITY 886 RDA ADM INISTRAT ION
521 WATER UTILITY 887 COOLEY RANCH - now 894
522 WAS TEWATER UTILITY 888 MT VERNON - now 882
523 SOLID WASTE 889 WEST VALLEY - now 879
524 CEMETERY 890 Successor Agcy-RDA - LONG TERM DEBT GRP 525 RECYCLING 891 Successo r Agcy-RDA I DEBT SERV ICE FUND 526 PUBLIC BENEFIT FUND 892 Successor Agcy-RDA I - CAP ITAL PROJECTS 527 WASTEWATER UTILITY - GRAND TERRACE 893 Successor Agcy -RDA II DEBT SERV ICE FUND 551 WATER DEVELOPMENT 894 Successor Agcy -COOLEY RANCH PRO JECT 552 SEWER DEVELOPMENT 895 Successor Agcy-COOLEY RANCH DEBT SERV 560 CEMETARY ENDOWMENT CARE 896 SANTA ANA RIVER - now 877 605 Facility & Equipment Maintenance Fund 897 Successor Agcy-SANTA ANA RIVER DEBT SVC 606 INFORMATION SERV ICES FUND 898 Housing Auth - LOW/MOD CAPITAL PROJECTS 607 INSURANCE FUND 899 Successor Agcy-WEST VALLEY PRJ - DBT SV 608 AUTOMOT IVE SHOP 941 GENERAL LONG -TERM DEBT
610 AUTOMOT IVE SHOPS 958 GENERAL FIXED ASSETS
990 GASB 34

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ITEM NO. 4

STAFF REPORT

DATE: JUNE 4, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: STEPHANIE VARGAS, DEPUTY CITY CLERK
SUBJECT: RECEIVE AND FILE CITY TREASURER'S REPORT FOR MARCH 2024.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

Receive and File City Treasurer’s Report for March 2024.

ATTACHMENT

1. Treasurer's Report March 2024
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ITEM NO. 5

STAFF REPORT

DATE: JUNE 4, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: STEPHANIE VARGAS, DEPUTY CITY CLERK
SUBJECT: CALLING AND GIVING NOTICE OF A GENERAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 5, 2024;

REQUESTING THE COUNTY OF SAN BERNARDINO TO RENDER
SPECIFIED SERVICES; AND ADOPTING REGULATIONS FOR
CANDIDATES FOR ELECTIVE OFFICE, RESOLUTION NO. R-49-24

AND APPROVE AND ADOPT A RESOLUTION ADOPTING

REGULATIONS FOR CANDIDATES FOR ELECTIVE OFFICE
PERTAINING TO CANDIDATE'S STATEMENTS, RESOLUTION NO.

R-50-24, SUBMITTED TO THE VOTERS AT AN ELECTION TO BE
HELD ON TUESDAY, NOVEMBER 5, 2024.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

It is recommended that the City Council a pprove and adopt a Resolution, calling and giving notice of a General Municipal Election to be held in the City of Colton on Tuesday, November 5, 2024, for the election of certain municipal officers and requesting that the County of San Bernardino render specified services as required by the provisions of the laws of the State of California relat ing to General Law cities; and, a pprove and adopt a resolution adopting regulations for candidates for elective office pertaining to candidate’s statements submitted to the voters at an election t o be held on Tuesday, November 5, 2024.

BACKGROUND

Under applicable State law, the City of Colton must take steps to call for the election of certain officers of the City and to order a General Municipal Election t o be held on Tuesday, November 5, 2024, which will be consolidated with the Statewide General Election for the following:
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Staff Report to the Mayor and City Council
Calling the General Municipal Election for November 5, 2024 June 4, 2024

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1. District 1 Councilmember for full term of four years

2. District 2 Councilmember for full term of four years

3. City Clerk for full term of four years

4. City Treasurer for full term of four years

ISSUES/ANALYSIS

Terms of office for certain elected City officials are nearing conclusion. As such, the election must be called by the City.

FISCAL IMPACTS

The c ost of the General Municipal Election is estimated at approximately $ 32,000. Sufficient appropriations are available in the adopted FY2024 -25 budget in t he General Fund City Clerk’s Elections Expense, Account No. 100-6010-6010-2401-0000-000.

ALTERNATIVES

Provide alternative direction to staff.

ATTACHMENT

1. Resolution No. R-49-24

2. Resolution No. R-50-24
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RESOLUTION NO. R-49-24

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

COLTON, CALIFORNIA, CALLING AND GIVING NOTICE OF

A GENERAL MUNICIPAL ELECTION TO BE HELD IN THE
CITY ON TUESDAY, NOVEMBER 5, 202 4, FOR THE

ELECTION OF CERTAIN MUNICIPAL OFFICERS AND

REQUESTING THAT THE COUNTY OF SAN BERNARDINO

RENDER SPECIFIED SERVICES A S REQUIRED BY THE

PROVISIONS OF THE LAWS OF THE STATE OF
CALIFORNIA RELATING TO GENERAL LAW CITIES.

WHEREAS, under the provisions of the laws relating to General Law cities in the State of California, a General Municipal Election shall be held on Tuesday, November 5, 2024, for the election of certain Municipal Officers; and,
WHEREAS, in the course of conduct of the election it is necessary for the City to request services of the County of San Bernardino; and,
WHEREAS, all necessary expense in performing this service shall be paid by the City of Colton.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF COLTON,

CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:

SECTION 1. That pursuant to the requirements of the laws of the State of California relating to General Law cities within the State, there is called and ordered held in the City of Colton, California, on Tuesday, November 5, 202 4, a General Municipal Election of the qualified electors of the City, to be consolidated with the General Election, for the purpose of voting on and/or electing the following:

A. District 1 Councilmember for full term of two years

B. District 2 Councilmember for full term of two years

C. City Clerk for full term of four years
D. City Treasurer for full term of four years.

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SECTION 2. That the ballots to be used for this election shall be, in form and content, such as may be required by law.

SECTION 3. The City Council requests that this election be consolidated with all other elections being held in the same territory on November 5, 2024, and to hold and conduct the consolidated election in the manner prescribed in Elections Code Section 10418.

SECTION 4. That the County of San Bernardino Registrar of Voters is authorized, instructed and directed to procure and furnish any and all official ballots, notices, printed matter, equipment and all supplies that may be necessary in order to properly and lawfully conduct the election.

SECTION 5. That the polls shall be open at seven o’clock a.m. on the day of the election and shall remain open continuously from that time until eight o’clock p.m. of the same day when the polls shall be closed, except as provided in Section 14401 of the Elections Code of the State of California.

SECTION 6. That in all particulars not recited in this resolution, the election shall be held and conducted in accordance with the provisions of law regulating the statewide or special election.

SECTION 7. That notice of the time and place of holding the election is given and the City Clerk is authorized, instructed and directed to give further or additional notice of the election, in the time, form and manner as required by law. // //
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SECTION 8. That the City shall reimburse the County of San Bernardino for services performed when the work is completed and upon presentation to the City of a properly coordinated and approved invoice.

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SECTION 9. That the City Clerk is directed to forward without delay to the San Bernardino County Registrar of Voters, a certified copy of this Resolution.

SECTION 10. That the City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original Resolutions.

PASSED, APPROVED AND ADOPTED this 4th day of June, 2024.

___________________________
FRANK J. NAVARRO
Mayor

ATTEST:

_______________________________

City Clerk

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28 RESOLUTION NO. R-50-24

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

COLTON, CALIFORNIA, ADOPTING REGULATIONS FOR

CANDIDATES FOR ELECTIVE OFFICE PERTAINING TO

CANDIDATES STATEMENTS SUBMITTED TO THE VOTERS AT AN
ELECTION TO BE HELD ON TUESDAY, NOVEMBER 5, 2024.

WHEREAS, §13307 of the Elections Code of the State of California provides that the governing body of any local agency adopt regulations pertaining to materials prepared by any candidate for a municipal election, including costs of the candidates statement;

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF COLTON,

CALIFORNIA, DOES HEREBY RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:

SECTION 1. GENERAL PROVISIONS. That pursuant to §13307 of the Elections Code of the State of California, each candidate for elective office to be voted for at an Election to be held in the City of Colton on Tuesday, November 5, 202 4 may prepare a candidate’s statement on an appropriate form provided by the City Clerk. The statement may include the name, age and occupation of the candidate and a brief description of no more than 200 words of the candidate’s education and qualifications expressed by the candidate himself or herself. The statement shall not include party affiliation of the candidate, nor membership or activity in partisan political organizations. The statement shall be filed in electronic form in the office of the City Clerk at the time the candidate’s nomination papers are filed. The statement may be withdrawn, but not changed, during the period for filing nomination papers and until 5:00 p.m. of the next working day after the close of the nomination period.

SECTION 2. FOREIGN LANGUAGE POLICY.

A. Pursuant to the Federal Voting Rights Act, candidate ’s statements will be translated into all languages required by the County of San Bernardino. The

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28 County is required to translate candidate’s statements into the following languages: Spanish.

B. The County will print and mail sample ballots and candidates statements to all voters in Spanish. The County will make the sample ballots and candidates statements in the required languages available at all polling places, on the County’s website, and in the Election Official’s office.

SECTION 3. PAYMENT.

A. Translations:

1. The candidate shall be required to pay for the cost of translating the candidate’s statement into any required foreign language as specified in (A) and/or (B) of Section 2 above pursuant to Federal and\or State law.

2. The candidate shall be required to pay for the cost of translating the candidate’s statement into any foreign language that is not required as specified in (A) and/or (B) of Section 2 above, pursuant to Federal and \or State law, but is requested as an option by the candidate.

B. Printing:

1. The candidate shall be required to pay for the cost of printing the candidate ’s statement in English in the main voter pamphlet.

2. The candidate shall be required to pay for the cost of printing the candidates statement in a foreign language required in (A) of Section 2 above , in the main voter pamphlet.

3. The candidate shall be required to pay for the cost of printing the candidate ’s statement in a foreign language requested by the candidate per (B) of Section 2 above, in the main voter pamphlet.

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28 4. The candidate shall be required to pay for the cost of printing the candidates statement in a foreign language required by (A) of Section 2 above, in the facsimile voter pamphlet.

The City Clerk shall estimate the total cost of printing, handling, translating, and mailing the candidate’s statements filed pursuant to this section, including costs incurred as a result of complying with the Voting Rights Act of 1965 (as amended), and require each candidate filing a statement to pay in advance to the local agency his or her estimated pro rata share as a condition of having his or her statement included in the voter’s pamphlet. In the event the estimated payment is required, the estimate is just an approximation of the actual cost that varies from one election to another election and may be significantly more or less than the estimate, depending on the actual number of candidates filing statements. Accordingly, the clerk is not bound by the estimate and may, on a pro rata basis, bill the candidate for additional actual expense or refund any excess paid depending on the final actual cost. In the event of underpayment, the clerk may require the candidate to pay the balance of the cost incurred. In the eve t of overpayment, the clerk shall prorate the excess amount among the candidates and refund the excess amount paid within 30 days of the election.

SECTION 4. MISCELLANEOUS.

A) All translations shall be provided by professionally-certified translators.

B) The City Clerk shall allow (bold type) (underlining) (capitalization) (indentations) (bullets) (leading hyphens) to the same extent and manner as allowed in previous City elections.

C) The City Clerk shall comply with all recommendations and standards set forth by the California Secretary of State regarding occupational designations and other matters relating to elections.

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28 SECTION 5. ADDITIONAL MATERIALS. No candidate will be permitted to include additional materials in the sample ballot package.

SECTION 6. That the City Clerk shall provide each candidate or the candidate’s representative a copy of this Resolution at the time nominating petitions are issued.

SECTION 7. That all previous resolutions establishing council policy on payment for candidate’s statements are repealed.

SECTION 8. That this resolution shall apply at the next ensuing municipal election and at each municipal election after that time.

SECTION 9. That the City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.

PASSED, APPROVED AND ADOPTED this 4th day of June, 2024.

_________________________________
FRANK J. NAVARRO, Mayor
ATTEST:

________________________________________
City Clerk

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ITEM NO. 6

STAFF REPORT

DATE: JUNE 4, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS DIRECTOR
SUBJECT: AWARD A CONTRACT TO DM CONTRACTING, INC. FOR THE FIRE STATION 212 DRIVEWAY REPLACEMENT PROJECT.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

1. Approve a contract with DM Contracting, Inc. for the Fire Station 212 Driveway Replacement Project for $64,500.00; and,

2. Authorize the City Manager to execute the contract with DM Contracting, Inc.

BACKGROUND

Fire Station 212 was built in 1957. The existing driveway was constructed with the original building. The Fire Station driveway has experienced standard wear and tear over the years in addition to sustained increased fire truck apparatus weights over time. The driveway is currently cracked, chipped, and broken, which requires removal and replacement.

ISSUES/ANALYSIS

In accordance with Colton Municipal Code (CMC) Section 3.08.120, the City Public Works Building Maintenance Supervisor distributed a notice inviting informal bids from multiple known local vendors for the Fire Station 212 Driveway Replacement Project. All bids received came in over $50,000 and are listed from lowest dollar amount to highest dollar amount as follows:

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June 4, 2024

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Although Norfolk’s bid appeared to come in as the lowest amount compared to the other bids, after review of the bid tabulation, mathematical errors were found in their calculation which did not ultimately place them as the lowest responsible bidder. As such, the Building Maintenance Supervisor recommends moving forward to award a maintenance services contract to the actual lowest responsible bidder, DM Contracting, Inc.

FISCAL IMPACTS

The total contract amount is $64,500.00. Sufficient appropriations for the Fire Station 212 Driveway Replacement Project are included in the adopted FY2023 -24 budget in the following Accounts:

ALTERNATIVES

Provide alternative direction to staff.

ATTACHMENT

1. Maintenance Services Contract

2. Informal Bids 4
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(BB&K 2018)
23152.06000\30608583.2
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CITY OF COLTON

MAINTENANCE SERVICES AGREEMENT

1. PARTIES AND DATE.

This Agreement is made and entered into this 4th day of June, 2024 by and between the City of Colton, a municipal corporation organized under the laws of the State of California with its principal place of business at 650 North La Cadena Drive , Colton, California 92234 , County of San Bernardino, State of California (“City”) and DM Contracting, Inc. a California Corporation with its principal place of business at 1065 Harber Drive, Colton, CA 92324 (“Contractor”). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

2. RECITALS.

2.1 Contractor.

Contractor desires to perform and assume responsibility for the provision of certain maintenance services required by the City on the terms and conditions set forth in this Agreement.

Contractor represents that it is experienced in providing concrete removal, replacement, and compaction services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the Services in the State of California, and that is familiar with the plans of City. Contractor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City.

Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.

2.2 Project.

City desires to engage Contractor to render such services for the Fire Station 212 Driveway Replacement project (“Project”) as set forth in this Agreement. Terms.

2.3 Scope of Services and Term.

2.3.1 General Scope of Services. Contractor promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional concrete removal, replacement, and compaction maintenance services necessary for the Project (“Services”). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, th e exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.

2.3.2 Term. The term of this Agreement shall be from June 04, 2024 to June 30, 2025 unless earlier terminated as provided herein. Contractor shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Services.

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2.4 Responsibilities of Contractor.

2.4.1 Control and Payment of Subordinates; Independent Contractor . The Services shall be performed by Contractor or under its supervision. Contractor will determine the means, methods and details of performing the Servi ces subject to the requirements of this Agreement. City retains Contractor on an independent contractor basis and not as an employee.

Contractor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of City and shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and othe r amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Contractor 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.

2.4.2 Schedule of Services. Contractor shall perform the Services expeditiously, within the term of this Agreement, and in accorda nce with the Schedule of Services set forth in Exhibit “B” attached hereto and incorporated herein by reference. Contractor represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Contractor’s conformance with the Schedule, City shall respond to Contractor ’s submittals in a timely manner. Upon request of City, Contractor shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.

2.4.3 Conformance to Applicable Requirements . All work prepared by Contractor shall be subject to the approval of City.

2.4.4 City’s Representative . The City hereby designates Brian A. Dickinson, Director of Public Works and Utility Services or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Agreement. Contractor shall not accept direction or orders from any person other than the City ’s Representative or his or her designee.

2.4.5 Contractor’s Representative . Contractor hereby designates David Magaña, President, or his or her designee, to act as its representative for the performance of this Agreement (“Contractor’s Representative”). Contractor’s Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Agreement. The Contractor’s Representative shall supervise and direct t he Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.

2.4.6 Coordination of Services. Contractor agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, consultants and other staff at all reasonable times.

2.4.7 Standard of Care; Performance of Employees. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling

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necessary to perform the Services. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Contractor represents that it, its employees a nd subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Contractor’s failure to comply with the standard of care provided for herein. Any employee of the Contractor or its sub-contractors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Contractor and shall not be re-employed to perform any of the Services or to work on the Project.

2.4.8 Period of Performance. Contractor shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above ( “Performance Time”).

Contractor shall perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” or “B” attached hereto, or which may be provided separately in writing to the Contractor. Contractor agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such completion schedule or Project milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage. Pursuant to Government Code Sec tion 53069.85, Contractor shall pay to the City as fixed and liquidated damages, and not as a penalty, the sum of Five Hundred Dollars ($500) per day for each and every calendar day of delay beyond the Performance Time or beyond any completion schedule or Project milestones established pursuant to this Agreement.

2.4.9 Disputes. Should any dispute arise respecting the true value of any work done, of any work omitted, or of any extra work which Contractor may be required to do, or respecting the size of any payme nt to Contractor during the performance of this Contract, Contractor shall continue to perform the Work while said dispute is decided by the City. If Contractor disputes the City’s decision, Contractor shall have such remedies as may be provided by law.

2.4.10 Laws and Regulations; Employee/Labor Certifications . Contractor 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 the Project or the Services, incl uding all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with Services. If the Contractor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Contractor shall be solely responsible for all costs arising therefrom. City is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Agreement to the same extent as though set forth herein and will be complied with. These include but are not limited to the payment of prevailing wages, the stipulation that eight (8) hours’ labor shall constitute a legal day’s work and that no worker shall be permitted to work in excess of eight (8) hours duri ng any one calendar day except as permitted by law. Contractor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless,

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pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.

2.4.10.1 Employment Eligibility; Contractor . By executing this Agreement, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited t o, examination and retention of documentation confirming the identity and immigration status of each employee of the Contractor.

Contractor also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Contractor shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verificatio n of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Contractor shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Contractor’s compliance with the requirements provided for in Section 3.2.10 or any of its sub- sections.

2.4.10.2 Employment Eligibility; Subcontractors, Sub-subcontractors and Consultants. To the same extent and under the same conditions as Contractor, Contractor shall require all of its subcontractors, sub-subcontractors and consultants performing any work relating to the Project or this Agreement to make the same verifications and comply with all requirements and restrictions provided for in Section 3.2.10.1.

2.4.10.3 Employment Eligibility; Failure to Comply . Each person executing this Agreement on behalf of Contractor verifies that they are a duly authorized officer of Contractor, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Contractor or its subcontractors, sub -subcontractors or consultants to meet any of the requirements provided for in Sections 3.2.10.1 or 3.2.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Contractor under Section 3.2.10.2); or (3) failure to immediately remove from the Project any person found not to be in compliance with such requirements.

2.4.10.4 Labor Certification . By its signature hereunder, Contractor certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.

2.4.10.5 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non -discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Contractor shall also comply with all relevant provisions of City’s Minority Business

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Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.

2.4.10.6 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Although the SCAQMD and CARB limits and requirements are more broad, Contractor shall specifically be aware of their application to "portable equipment", which definition is considered by SCAQMD and CARB to include any item of equipment with a fuel -powered engine. Contractor shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Agreement.

2.4.10.7 Water Quality.
(A) Management and Compliance . To the extent applicable, Contractor’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000 -14950); laws, rules and regulations of the Environmental Pr otection Agency and the State Water Resources Control Board and the Santa Ana Regional Water Quality Control Board ; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State. (B) Liability for Non -Compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Contractor or City to penalties, fines, or additional regulatory requirements. Contractor shall defend, indemnify and hold the City, its direct ors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Contractor’s non-compliance with the laws, regulations and policies described in this Section, unless such non-compliance is the result of the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. (C) Training. In addition to any other standard of care requirements set forth in this Agreement, Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Contractor further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Contractor with a list of training programs that meet the requirements of this paragraph.

2.4.11 Insurance.

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2.4.11.1 Time for Compliance . Contractor shall not commence Work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this Section. In addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this Section.

2.4.11.2 Minimum Requirements . Contractor shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Contractor, its agents, representatives, employ ees or subcontractors.

Contractor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
(A) Minimum Scope of Insu rance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability :

Insurance Services Office Busine ss Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.The policy shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24 26 or 21 29); or (2) cross liability for claims or suits by one insured against another. (B) Minimum Limits of Insurance . Contractor shall maintain limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 2503, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 per accident for bodily injury or disease. Defense costs shall be paid in addition to the limits.
(C) Notices; Cancellation or Reduction of Coverage . At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or materially reduced, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with t he City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Agreement does not comply with these specif ications or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by Contractor or the City may withhold amounts sufficient to pay premi um from Contractor payments. In the alternative, the City may suspend or terminate this Agreement.

2.4.11.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Contractor shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:

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(A) General Liability. The general liability policy shall include or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37, or endorsements providing the exact same coverage, the City of Colton, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insured with respect to the Services or ongoing and complete operations performed by or on behalf of the Contractor, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor ’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of the City, before the City’s own primary insurance or self -insurance shall be called upon to protect it as a named insured. Any insurance or self -insurance maintained by the City, its directors, officials, offi cers, employees, agents, and volunteers shall be excess of the Contractor’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section

3.2.11.2(B), any available insurance proceeds in e xcess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.2.11.3(A).
(B) Automobile Liability . The automobile liability policy shall include or be endorsed (amended) to state that: (1) the City, its directors, officials, officers, employees, agents, and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hire d or borrowed by the Contractor or for which the Contractor is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor ’s scheduled underlying coverage. Any insurance or self -insurance maintained by the City, its directors, officials, officers, employees, agents, and volunteers shall be excess of the Contractor’s insurance and shall not be called upon to contribute with it in any way.

Notwithstanding the minimum limits set forth in Section 3.2.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds pursuant to this Section 3.2.11.3(B). (C) Workers’ Compensation and Employer’s Liability Coverage.

The insurer shall agree to waive all righ ts of subrogation against the City, its directors, officials, officers, employees, agents, and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Contractor. (D) All Coverages . Each insurance policy requi red by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents, and volunteers.

Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officials, officers, employees, agents and volunteers, or any other additional insureds.

2.4.11.4 Separation of Insureds; No Special Limitations ; Waiver of Subrogation. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of

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protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers.

All policies shall waive any right of subrogation of the insurer against the City, its officials, officers, employees, agents, and volunteers, or any o ther additional insureds, or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against Ci ty, its officials, officers, employees, agents, and volunteers, or any other additional insureds, and shall require similar written express waivers and insurance clauses from each of its subcontractors.

2.4.11.5 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. Contractor shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City , its directors, officials, officers, employees, agents, and volunteers; or (2) the Contractor shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.

2.4.11.6 Subcontractor Insurance Requ irements. Contractor shall not allow any subcontractors to commence work on any subcontract relating to the work under the Agreement until they have provided evidence satisfactory to the City that they have secured all insurance required under this Section. If requested by Contractor, the City may approve different scopes or minimum limits of insurance for particular subcontractors. The Contractor and the City shall be named as additional insureds on all subcon tractors’ policies of Commercial General Liability using ISO form 20 38, or coverage at least as broad.

2.4.11.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best ’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the City.

2.4.11.8 Verification of Coverage . Contractor shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the City before work commences. The City reserv es the right to require complete, certified copies of all required insurance policies, at any time.

2.4.11.9 Reporting of Claims . Contractor shall report to the City, in addition to Contractor’s insurer, any and all insurance claims submitted by Contractor in connection with the Services under this Agreement.

2.4.12 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or

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injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.

2.4.13 Bonds.

2.4.13.1 Performance Bond. If required by law or otherwise specifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Agreement a Performance Bond in the amount of the total, not -to-exceed com pensation indicated in this Agreement, and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until it has been received and approved by the City.

2.4.13.2 Payment Bond . If required by law or otherwise spec ifically requested by City in Exhibit “C” attached hereto and incorporated herein by reference, Contractor shall execute and provide to City concurrently with this Agreement a Payment Bond in the amount of the total, not-to-exceed compensation indicated in this Agreement, and in a form provided or approved by the City. If such bond is required, no payment will be made to Contractor until it has been received and approved by the City.

2.4.13.3 Bond Provisions . Should, in City ’s sole opinion, any bond become insufficient or any surety be found to be unsatisfactory, Contractor shall renew or replace the affected bond within 10 days of receiving notice from City. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the City, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Agreement unt il any replacement bonds required by this Section are accepted by the City. To the extent, if any, that the total compensation is increased in accordance with the Agreement, the Contractor shall, upon request of the City, cause the amount of the bonds to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the City. To the extent available, the bonds shall further provide that no change or alteration of the Agreement (including, without limitation, an increase in the total compensation, as referred to above), extensions of time, or modifications of the time, terms, or conditions of payment to the Contractor, will release the surety. If the Contractor fails to furnish any required bond, the City may terminate this Agreement for cause.

2.4.13.4 Surety Qualifications . Only bonds executed by an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, shall be accepted. The surety must be a California -admitted surety with a current A.M. Best ’s rating no less than A:VIII and satisfactory to the City. If a California -admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Proc edure, and proof of such is provided to the City.

2.4.14 Accounting Records . Contractor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.

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2.4.15 Work Sites.

2.4.15.1 Inspection Of Site . Contractor shall visit sites where Services are to be performed and shall become acquainted with all conditions affecting the Services prior to commencing the Services. Contractor shall make such examinations as it deems necessary to determine the condition of the work sites, its accessibility to materials, workmen and equipment, and to determine Contractor’s ability to protect existing surface and subsurface improvements. No claim for allowances–time or money–will be allowed as to such matters after commencement of the Services.

2.4.15.2 Field Measurements . Contractor shall make field measurements, verify field conditions and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents, including any plans, specifications, or scope of work before commencing Services. Errors, inconsistencies or omissions discovered shall be reported to the City immediately and prior to performing any Services or altering the condition.

2.4.16 Loss and Damage. Contractor shall be responsible for all loss and damage which may arise out of the nature of the Services agreed to herein, or from the action of the elements, or from any unforeseen difficulties which may arise or be encountered in the prosecution of the Services until the same is fully completed and accepted by City.

2.4.17 Warranty. Contractor warrants all Services under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or m aterials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the City of any defect in the Services or non-conformance of the Services to the Contract, com mence and prosecute with due diligence all Services necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by its defective Services or which becomes damaged in the course of re pairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as the City may require to verify that any corrective actions , including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of the Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the City, regardless of whether or not such warranties and guarantees have been transferred or assigned to the City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the City, the City shall have the right to correct and replace any defective or non -conforming w ork and any work damaged by such work or the

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replacement or correction thereof at Contractor's sole expense. Contractor shall be obligated to fully reimburse the City for any expenses incurred hereunder upon demand.

2.5 Fees and Payments.

2.5.1 Compensation. Contractor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation shall not exceed SIXTY-FOUR THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($64,500.00) without written approval of City ’s Council. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.

2.5.2 Payment of Compensation . Contractor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Contractor. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon.

2.5.3 Deductions. City may deduct or withhold, as applicable, from each progress payment an amount necessary to protect City from loss because of: (1) stop payment notices as allowed by state law; (2) unsatisfactory prosecution of the Services by Contractor; (3) sums representing expenses, losses, or damages as determined by the City, incurred by the City for which Contractor is liable under the Agreement; and (4) any other sums which the City is entitled to recover from Contractor under the t erms of the Agreement or pursuant to state law, including Section 1727 of the California Labor Code. The failure by the City to deduct any of these sums from a progress payment shall not constitute a waiver of the City's right to such sums.

2.5.4 Reimbursement for Expenses. Contractor shall not be reimbursed for any expenses unless authorized in writing by City.

2.5.5 Extra Work . At any time during the term of this Agreement, City may request that Contractor perform Extra Work. As used herein, “Extra Work” means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement.

Contractor shall not perform, nor be compensated for, E xtra Work without written authorization from City’s Representative.

2.5.6 Prevailing Wages. Contractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. Since the Services are being performed as part of an applicable “public work s” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon re quest, and shall post copies at the Contractor’s principal place of business and at the project site. Contractor shall defend, indemnify and hold the City, its

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elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.

2.5.7 Registration/DIR Compliance. If the Services are being performed as part of an applicable “public works” or “maintenance” project, and if the total compensation is $15,000 or more, then pursuant t o Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and la bor compliance requirements.

Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Services, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay and shall not be compensable by the City. Contractor shall defend, indemnify and hold the City, its officials, officers, em ployees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.

2.6 Termination of Agreement.

2.6.1 Grounds for Termination . City may, by written notice to Contractor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Contractor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date o f such termination. Upon termination, Contractor shall be compensated only for those services which have been adequately rendered to City, and Contractor shall be entitled to no further compensation. Contractor may not terminate this Agreement except for cause.

2.6.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Contractor to provide all finished or unfinished Documents and Data and other information of any kind prepared by Contractor in connection with the perform ance of Services under this Agreement. Contractor shall be required to provide such document and other information within fifteen (15) days of the request.

2.6.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided her ein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

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2.7 General Provisions.

2.7.1 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:

Contractor:

DM Contracting, Inc.
1065 Harber Drive Colton, CA 92324
David Magaña, President
City:

City of Colton
650 North La Cadena Drive
Colton, CA 92324
Attn: Brian A. Dickinson, Director of Public Works and Utility Services
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.

2.7.2 Indemnification.

2.7.2.1 Scope of Indemnity . To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the City, its officials, employees, agents and authorized volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor’s Services, the Project or this Agreement, including without limitation the payment of all e xpert witness fees, attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Contractor’s indemnity obliga tion shall not apply to liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense arising from the sole or active negligence or willful misconduct of the City or the City’s agents, servants, or independent contractors who are directly responsible to the City, or for defects in design furnished by those persons.

2.7.2.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of City’s choosing and at Contractor’s own cost, expense and ris k, any and all Claims covered by this section that may be brought or instituted against City or its officials, employees, agents and authorized volunteers. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered ag ainst City or its officials, employees, agents and authorized volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by City or its officials, employees, agents and authorized volunteers as part of any such claim, suit, action or other proceeding. Such

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reimbursement shall include payment for City’s attorney’s fees and costs, including expert witness fees. Contractor shall reimburse City and its officials, employees, agents and authorized volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or termination of thi s Agreement, and shall not be restricted to insurance proceeds, if any, received by the City, its officials, employees, agents and authorized volunteers.

2.7.3 Governing Law; Government Code Claim Compliance . This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.

In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disput ed work, claims and/or changed conditions, Contractor must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon t he Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Contractor. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor shall be barred from bringing and maintaining a valid lawsuit against the City.

2.7.4 Time of Essence. Time is of the essence for each and every pro vision of this Agreement.

2.7.5 City’s Right to Employ Other Contractors . City reserves right to employ other contractors in connection with this Project.

2.7.6 Successors and Assigns . This Agreement shall be binding on the successors and assigns of the parties.

2.7.7 Assignment or Transfer. Contractor shall not assign, hypothecate or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.

2.7.8 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Contractor include all personnel, employees, agents, and subcontractors of Contractor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement.

2.7.9 Amendment; Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.

2.7.10 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit,

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privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise.

2.7.11 No Third Party Beneficiaries. Except to the extent ex pressly provided for in Section 3.5.7, there are no intended third party beneficiaries of any right or obligation assumed by the Parties.

2.7.12 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

2.7.13 Prohibited Interests . Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee wor king solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Contractor further agrees to file, or shall cause its employees or subcontractors to file, a Statement of Economic Interest with the Ci ty’s Filing Officer as required under state law in the performance of the Services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or emp loyee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

2.7.14 Cooperation; Further Acts . The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.

2.7.15 Authority to Enter Agreement. Contractor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.

2.7.16 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.

2.7.17 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.

2.7.18 Federal Provisions. When funding for the Services is provided, in whole or in part, by an agency of the federal government, Contractor shall also fully and adequately comply with the provisions included in Exhibit “D” (Federal Requirements) attached hereto and incorporated herein by reference (“Federal Requirements”). With respect to any conflict between such Federal Requirements and the terms of this Agreeme nt and/or the provisions of state law, the more stringent requirement shall control.
[SIGNATURES ON NEXT PAGE]

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SIGNATURE PAGE FOR MAINTENANCE SERVICES AGREEMENT

BETWEEN THE CITY OF COLTON
AND DM CONTRACTING, INC.

IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the 4th day of June, 2024.

CITY OF COLTON DM Contracting, Inc.

A California Corporation

By: ____________________________ By: _________________________ William R. Smith David Magaña
City Manager President

Attest:

____
Stephanie M. Vargas
Deputy City Clerk

Approved as to Form:

______________________________
Best Best & Krieger LLP
City Attorney

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Exhibit A-1

EXHIBIT “A”

SCOPE OF SERVICES

1. Mobilization

2. Traffic control system

3. Sawcut, remove existing broken and/or damaged 6’ concrete city approach approx. 544’ sf. Replace with new 8” thick concrete, type, form, pour, and finish.

4. Sawcut, remove existing broken and/or damaged 6” concrete commercial driveway, approx.. 644’ sf. Replace with new 8” thick concrete, type560-C-3250 with #3 rebar at 24” o.c. each way. Form, pour, and finish.

5. Remove additional 2” subgrade dirt to approx. 1,188’ sf and install new cmb aggregate base as necessary.

Back of Building

1. Remove approx. 1,134’ sf of existing grass area. Replace with new 4” thick concrete, type 560-C-3250 with #33 rebar at 24” o.c each way.

2. Remove approx. 480’ sf of existing grass area. Replace with new 4” thick concrete, type 560-C-3250 with #3 rebar at 24” o.c each way.

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EXHIBIT “B”

SCHEDULE OF SERVICES
JUNE 4, 2024 – JUNE 30, 2025

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EXHIBIT “C”

COMPENSATION
SIXTY-FOUR THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($64,500.00)

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EXHIBIT “D”

FEDERAL REQUIREMENTS

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ITEM NO. 7

STAFF REPORT

DATE: JUNE 4, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS DIRECTOR
SUBJECT: APPROVE CONTRACT AWARD TO KRIEGER AND STEWART INC.

FOR THE MONTECITO RESERVOIR PROJECT.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

1. Approve the award of Professional Services Agreement (PSA) contract to Krieger & Stewart Engineering Consultant for Montecito Reservoir Project for the amount not -to- exceed $143,944.00.

2. Authorize the City Manager to execute the agreement.

BACKGROUND

Montecito Reservoir is a 3-million-gallon welded steel tank . The Reservoir is located approximately ¼ mile east of Reche Canyon Rd and serves the Reche Canyon 1 and 2 Pressure Zones. The water reservoir was originally constructed in 1985.

The rehabilitation of the Montecito Reservoir is recommended pursuant to the City of Colton ’s 2016 Water Master Plan to meet a portion of the City’s anticipated water requirements on Reche Canyon I pressure zone over the next ten to twenty years. Based on the inspection report that was prepared by Blue Locker Diving, the tank has major damage and corrosion on the interior structure and the exterior walls paint due to age. The rehabilitation of this reservoir is an essential component to maintain the required level of service to the City’s existing and future developments and residents.

ISSUES/ANALYSIS

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On April 14, 2024, City Staff issued a Request for Proposal (RFP) for the preparation of the engineering and design services for the Montecito Reservoir Rehabilitation Project. The scope of the engineering services and design includes the following scope.

• Interior and exterior paint, coat, and rehabilitation. • Repair of the corrosion on any exposed reinforcing materials. • Steel patch requirements for the repair of the walls, rafters, and connection points. • Staircase and railings design per OSHA safety compliance.

The RFP was advertised in The Press -Enterprise newspaper on April 14, 2024, and April 19, 2023. On May 8, 2024, City received proposals from two (2) engineering firms:

No. Name of Consultant Cost
Proposal

Bidding &
Construction
Support
Optional
Task/Inspection
Total Cost

1 Krieger and Stewart
Engineering Consultants $89,400.00

$29,000.00 $25,544.00 $143,944.00
2 Engineering Resources
of Southern California $98,765.00 $69,020.00 $167,785.00

Staff performed a review of the proposals for accuracy, completeness and rated the consultants based on qualifications, performance of similar work, ability to provide services, quality of proposal, work performance for the City and cost. Staff evaluated all the proposals and determined that the Krieger & Stewart Engineering Consultant proposal met all the criteria as outlined in the RFP and scored the highest in the City’s evaluation process. Krieger & Stewart Engineering Consultant ’s cost proposal for the complete engineering design services and construction management is $143,944.00.

FISCAL IMPACTS

The total amount for Design and Construction Management of the Montecito Reservoir Project, including a 5% contingency is $ 151,141.20. Sufficient appropriations are available in the FY2023-24 adopted budget in Water Utility Fund Reservoirs Capital Improvement Account #521-8100-8104-3890-0000-000.

ALTERNATIVES

1. Provide alternative direction to staff.
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ITEM NO. 8

STAFF REPORT

DATE: JUNE 4, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS DIRECTOR
SUBJECT: APPROVE THE AWARD OF CONTRACT TO MATICH
CORPORATION FOR FY 23/24 ASPHALT PAVING PROJECT IN
THE AMOUNT OF $2,414,229, RESOLUTION NO. R-48-24.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

1. Authorize the award of contract for the Fiscal Year (FY) 23/24 Asphalt Paving Project to Matich Corporation for $2,414,229.00 as the lowest responsive and responsible bidder and authorize the City Manager to execute the contract agreement.

2. Approve Resolution R -48-24 (Exhibit C) to amend the FY 23/24 Capital Improvement Budget, increasing FY 23/24 appropriations in the Host City Fee Fund.

BACKGROUND

FY 23/24 Asphalt Paving Project focuses on improving the City’s arterial and local streets, and alleys. The scope of work includes rubberized asphalt paving, asphalt grinding, traffic signal loops, and pavement striping and markings. The project is funded by Measure I, SB -1, and local funds. The project plan is attached as Exhibit A. The project will take place in the following locations:

1. Pavement Rehabilitation: Meridian Ave. (350’ North of Valley Blvd. to San Bernardino Ave.)

2. Pavement Rehabilitation: Rancho Ave. (Agua Mansa Rd. to Cement Plant Rd.)

3. Pavement Rehabilitation: Pepper Ave. (UPRR Bridge. to Slover Ave.)

4. Pavement Rehabilitation: Citrus Ave. (Rancho Ave. to Watwood Ave.)

5. Pavement Rehabilitation: Pleasant Valley Ct. (Hidden Valley Ln. to West End) 8 Packet Pg. 271
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6. Pavement Rehabilitation: Duron St. (Cooley Dr. to Cameron St.)

7. Pavement Rehabilitation: Cooley Dr. (Via Venito to Ashley Way)

8. Pavement Rehabilitation: Iowa Ave. (I-215 to Main St.

9. Pavement Rehabilitation: 2nd Street (Valley Blvd. to South End)

10. Pavement Rehabilitation: 5th Street (N St.-Maple St.)

11. Pavement Rehabilitation: 12th Street (O St.-N St.)

12. Pavement Rehabilitation: Bryce Ct.(Canyon Dr.-End)

13. Pavement Rehabilitation: Cameron St.(North-South end)

14. Pavement Rehabilitation: Carbon Ct.(Canyon Dr.-End)

15. Pavement Rehabilitation: Cordillera Ave.(Bridge St.-Trail Ct.)

16. Pavement Rehabilitation: Crescent (Cordillera North to South end)

17. Pavement Rehabilitation: H Street (Rancho Ave. – Grand Ave.)

18. Pavement Rehabilitation: Laurel Lane (Maple St. - South end)

19. Pavement Rehabilitation: Mountain View Ln. (Old Ranch-South end)

20. Replace Concrete with Asphalt Pavement: O Street (La Cadena Dr. to 7th St.)

21. Asphalt Paving: Dog Park Access Road

ISSUES/ANALYSIS

In accordance with Colton Municipal Code (CMC) Section 3.08.090, a request for Notice Inviting Formal Bids was published in The Press Enterprise on March 29, 2024 and April 5, 2024. Bids were opened on April 18, 2024 and staff received the following bids:

Contractor Bid Amount
Matich Corporation $ 2,414,229.00
Hardy and Harper, Inc. $ 2,522,000.00
All American Asphalt Inc. $ 2,688,688.00
Onyx Paving $ 2,696,000.00

Staff reviewed and evaluated submitted bids and recommends awarding the contract (Exhibit B) for the FY 23/24 Asphalt Paving Project to Matich Corporation as the lowest responsive and responsible bidder in the amount of $ 2,414,229.

FISCAL IMPACTS

Approval of Resolution R-48-24 (Exhibit C) will provide additional funding for the project from the Host City Fee Fund of $395,000.

In anticipation of the approval of Resolution No. R -48-24, sufficient appropriations for the contract are available in the following amounts and account numbers:

Project Location Account No. Account
Balance
Matich.

Contract
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Meridian Ave. 212-2401-6150-3890 $263,677.13 $263,677.13 Rancho Ave. 212-2402-6150-3890 $157,025.64 $157,025.64
Pepper Ave. 212-2403-6150-3890 $105,964.00 $105,964.00
Citrus Ave. 212-2404-6150-3890 $185,098.03 $185,098.03
Pleasant Valley Ct. 212-2405-6150-3890 $16,089.00 $16,089.00 Duron St. 212-2406-6150-3890 $61,188.00 $61,188.00
Cooley Drive 212-2407-6150-3890 $286,862.69 $286,862.69 Iowa Ave. 212-2432-6150-3890 $149,908.69 $149,908.69
2nd St. 218-2408-6150-3890 $29,355.00 $29,355.00
5th Street 218-2409-6150-3890 $123,181.96 $119,068.88
12th St. 218-2410-6150-3890 $23,675.00 $23,675.00
Bryce Ct. 218-2411-6150-3890 $41,453.00 $41,453.00
Cameron St. 218-2412-6150-3890 $81,432.00 $81,432.00
Carbon Ct. 218-2413-6150-3890 $35,719.00 $35,719.00
Cordillera Ave. 218-2414-6150-3890 $44,553.00 $44,553.00 Crescent Circle 218-2415-6150-3890 $119,309.69 $115,000.00 H Street 218-2416-6150-3890 $71,556.00 $71,556.00
Laurel Lane 218-2417-6150-3890 $22,302.00 $22,302.00
Mountain View Lane 218-2418-6150-3890 $39,835.00 $39,835.00 O St. 218-2312-6150-3890 $167,837.00 $128,965.76
Dog Park Access Road 219-2335-1000-3890 $117,883.00 $65,236.64 Host City Fee (R-48-24) 240-2467-6150-3890 $395,000.00 370,264.54 Total $2,538,904.73 $2,414,229.00

ENVIRONMENTAL IMPACTS

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Staff recommends that the FY 23-24 Asphalt Paving Project be determined categorically exempt under California Environmental Quality Act (CEQA) Guidelines Section 15301(c) - Existing highways and streets.

ALTERNATIVES

1. Provide alternative direction to staff.

ATTACHMENT

1. Exhibit A - Plans for FY 23-24 Asphalt Paving Project

2. Exhibit B - Matich Construction Contract

3. Exhibit C- Resolution R-48-24
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CONTRACT
THIS CONTRACT is made this 5th day of June 2024, in the County of San Bernardino, State of California, by and between the City of Colton , hereinafter called City, and Matich Corporation, hereinafter called Contractor. The City and the Contractor for the considerations stated herein agree as follows:

ARTICLE 1. SCOPE OF WORK . The Contractor shall perform all Work within the time stipulated in the Contract and shall provide all labor, materials, equipment, tools, utility services, and transportation to complete all of the Work required in strict compliance with the Contract Documents as specified in Article 5 below for the following Project:

FY 23-24 ASPHALT PAVING PROJECT

The Contractor and its surety shall be liable to the City for any damages arising as a result of the Contractor’s failure to comply with this obligation.

ARTICLE 2. TIME FOR COMPLETION. The Work shall be commenced on the date stated in the City’s Notice to Proceed. The Contractor shall complete all Work required by the Contract Documents within NINETY (90) working days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work.

ARTICLE 3. CONTRACT PRICE. The City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of Two Million F our Hundred Fourteen Thousand Two Hundred Twenty Nine Dollars and No Cent s ($2,414,229.00). Payment shall be made as set forth in the General Conditions.

ARTICLE 4. LIQUIDATED DAMAGES . I n accordance with Government Code Section 53069.85, it is agreed that the Contractor will pay the City the sum of $500.00 for each and every calendar day of delay beyond the time prescribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. In the event this is not paid, the Contractor agrees the City may deduct that amount from any money due or that may become due the Contractor under the Contract. This Article does not exclude recovery of other damages specified in the Contract Documents.

ARTICLE 5. COMPONENT PARTS OF THE CONTRACT . The “Contract Documents” include the following:

Notice Inviting Bids
Instructions to Bidders
Contractor's Bid Forms
Contractor’s Certificate Regarding Workers’ Compensation Bid Bond
Designation of Subcontractors
Information Required of Bidders

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Contract
Performance Bond
Payment (Labor and Materials) Bond
General Conditions
Special Provisions (or Special Conditions)
Technical Specifications
Greenbook Standard Specifications (Sections 1-9 Excluded) Addenda
Plans and Contract Drawings
Approved and fully executed change orders
Any other documents contained in or incorporated into the Contract The Contactor shall complete the Work in strict accordance with all of the Contract Documents.

All of the Contract D ocuments are intended to be complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all. This Contract shall supersede any prior agreement of the parties.

ARTICLE 6. PROVISIONS REQUIRED BY LAW. Each and every provision of law required to be included in these Contract Documents shall be deemed to be included in these Contract Documents. The Contractor shall comply with all requirements of applicable federal, state and local laws, rules and regulations , including, but not limited to, the provisions of the California Labor Code and California Public Contract Code which are applicable to this Project.

ARTICLE 7. INDEMNIFICATION. Contractor shall provide indemnification as set forth in the General Conditions.

ARTICLE 8. PREVAILING WAGES. Contractor shall be required to pay the prevailing rate of wages in accordance with the Labor Code which such rates shall be made available at Public Works Department or may be obtained online at http//www.dir.ca.gov/dl sr. and which must be posted at the job site. If the Work involves federal funds or otherwise requires compliance with the Davis-Bacon Fair Labor Standards Act, the Contractor and all its subcontractors shall comply with the higher of the state or federal prevailing wage rates.

IN WITNESS WHEREOF, this Contract has been duly executed by the above -named parties, on the day and year above written.

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CITY OF COLTON

By:

______________________________
Signature

__William R. Smith______________
Name

__City Manager_________________
Title

Attest:

______________________________
City Clerk

Recommended By:

______________________________
Signature

______________________________
Name

______________________________
Title

MATICH CORPORATION

By:

______________________________
Signature

______________________________
Name

______________________________
Title

______________________________
License Number

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RESOLUTION NO. R-48-24

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLTON
AMENDING THE FISCAL YEAR 202 3/2024 CAPITAL IMPROVEMENT BUDGET

WHEREAS, the City of Colton (“City”) is a municipal corporation duly organized and existing pursuant to the Constitution and laws of the State of California; and,

WHEREAS, the City intends to support the City’s goal to improve the City’s traffic safety and infrastructure; and,

WHEREAS, the City of Colton allocated funds to rehabilitate street pavement citywide as part of the FY 23/24 Asphalt Paving Project; and,

WHEREAS, the City of Colton needs to allocate additional funding in the amount of $395,000 to complete the project and will be provided thru Host City Fee; and,

WHEREAS, a budget appropriation not listed in the Fiscal Year 202 3/2024 budget is required and must be approved by resolution of the City Council.

NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF COLTON DOES HEREBY RESOLVE AS FOLLOWS:

Section 1 The above recitals are true and correct.

Section 2 The City Council authorizes the following amendment for the FY23/24 budget:

• Appropriate $395,000 from reserve balance in the Host City Fee Fund to capital improvement account number 240-2467-6150-3890-0000-000 for the FY 23/24 Asphalt Paving Project.

PASSED, APPROVED AND ADOPTED THIS 4th DAY OF JUNE 2024.

__________________________
FRANK J. NAVARRO
Mayor

ATTEST:

__________________________________

STEPHANIE VARGAS
Deputy City Clerk

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Attachment: Exhibit C- Resolution R-48-24 (4537 : Contract Award – Matich Corporation)

ITEM NO. 9

STAFF REPORT

DATE: JUNE 4, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS DIRECTOR
SUBJECT: APPROVE RESOLUTION AUTHORIZING THE ANNUAL

ANTICIPATED DBE PARTICIPATION LEVEL (AADPL) FOR
FEDERAL FISCAL YEAR 2024/2025, RESOLUTION R-44-24.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

Approve Resolution No. R -44-24 (Exhibit A) authorizing the Federal Fiscal Year 2024/2025 Annual Anticipated Disadvantaged Business Enterprise (DBE) Participation Level (AADPL) of

15.0 % and the methodology that is presented herein, and authorize the City Manager or his Designee to execute the DBE Annual Submittal Forms.

BACKGROUND

In 1984, City Council first adopted the Disadvantaged Business Enterprise (DBE) Program as required by 49 CFR Part 26. The program defines disadvantaged businesses and percentage goals for federally funded or assisted public works contracts to be awarded each year. The California Department of Transportation (Caltrans) has been entrusted with local agency oversight responsibility for DBE implementation since 1999, and as such, has the responsibility of overseeing Colton’s DBE Program. The DBE Program is intended to remedy past and current discrimination against DBEs, ensure a level playing field, and foster equal opportunity in federal-aid contracts.

On June 29, 2012, California Department of Transportation (Caltrans) announced that the U.S.

Department of Transportation (US DOT) has informed Caltrans that the Disadvantaged Business Enterprise (DBE) program waiver granted on August 7, 2008, has been rescinded. That waiver allowed race-conscious (RC) contract goals to be limited to African Americans, Asian Pacific Americans, Native Americans, and Women. With rescission of the waiver, contract goals for 9 Packet Pg. 318
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federally funded projects authorized on and after July 1, 2012, must include all DBE groups (African Americans, Asian Pacific American, Native American, Women, Hispanic American, and Subcontinent Asian American and any other groups whose members are certified as socially and economically disadvantaged). This is referred to as the New RC DBE Program.

ISSUES/ANALYSIS

On May 19, 2009, the City Council approved the Race-Conscious Implementation agreement with Caltrans. The agreement requires annual submittal of AADPL calculation and methodology to Caltrans. The DBE methodology and calculation utilized to determine the AADPL together with the DBE implementation agreement, and the American with Disabilities Act (ADA) annual certification form are attached as exhibit to Resolution No. R-44-24.

Public Works staff identified three (3) federally-funded transportation projects that are expected to be awarded for construction phase during the 2024/2025 Federal Fiscal Year (October 1, 2024 to September 30, 2025). These projects with the estimated construction phase cost are as follows:

1. La Cadena Drive (over Santa Ana River) Bridge Replacement Project - $27,218,200

2. Mt. Vernon Ave. over UPRR Bridge Widening Project - $22,954,000

3. Barton Road Bridge Removal Project - $2,444,700

To calculate the New RC DBE, the total number of DBEs within each project’s market area from the Caltrans DBE database is compared to the total number of businesses (DBE and non-DBE) performing the same services based on information from the US Census Bureau database (2021 County Business Patterns). The market areas vary by project and were selected by determining the location of the bidders for similar projects within the past several years. Using the projects’ race-conscious percentage, a weighted average was calculated to determine the City of Colton’s AADPL for Federal Fiscal Year 2024/2025. The results of the calculations are as follows:

AADPL = New Race-Conscious DBEs = 15.0 %

After the City Council approval, the Fiscal Year 2024/2025 AADPL and methodology will be submitted to Caltrans. The City will use every opportunity to implement good faith effort to meet the New RC DBE goal of 15.0% for projects with federal funding.

FISCAL IMPACTS

There is no fiscal impact associated with this recommendation. However if the DBE goal is not approved, the City may become ineligible for federal grants obtained to date and any future federal grant funding application. An approved DBE goal is also necessary for project authorization and reimbursement of any projects with federal funding.

ALTERNATIVES
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1. Provide alternative direction to staff.

ATTACHMENT

1. Exhibit A - Resolution FY 24-25 DBE
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RESOLUTION NO. R-44-24

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLTON

APPROVING THE ANNUAL ANTICIPATED DBE PARTICIPATION LEVEL (AADPL) FOR FEDERAL FISCAL YEAR 2024/2025 AND AUTHORIZING THE

CITY MANAGER OR HIS/HER DESIGNEE TO SIGN THE DBE ANNUAL SUBMITTAL FORM ON BEHALF OF THE CITY OF COLTON.

WHEREAS, t he City of Colt on intends to apply for Federal -Aid projects related to transportation, streets, and roads; and
WHEREAS, to be eligible for such Federal- Aid projects, the Federal Highway Administration and the California Department of Transportation (Caltrans) requires agencies to implement Caltrans' New Race -Conscious Disadvantaged Business Enterprises (DBE) Program; and
WHEREAS, Exhibit 9A ( DBE I mplementation Agreement), E xhibit 9B (DBE A nnual Submittal Form) and Exhibit 9C (ADA Annual Certification Form) as attached on this resolution are required Disadvantaged Business Enterprise (DBE) Annual Submittal Forms provided by Caltrans that meets their requirements and the City Council wishes to meet the requirements of the Federal and State authorities and promote s the inclus ion of Disadvantag ed Business Enterprises in said projects; and
WHEREAS, the City Council approved the attached Exhibit s as the City of Colton’s Disadvantaged Business Enterprise (DBE) Annual Submittal Form for Federal Fiscal Year 2024/2025.

NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF COLTON DOES HEREBY RESOLVE AS FOLLOWS:

Section 1 The Rec ital pr eceding i n this R esolution ar e true and correct and ar e incorporated into this Resolution by reference.

Section 2 The City Council City Council approves the Federal Fiscal Year 2024/2025 Annual Anticipated Disadvantaged Business Enterprise (DBE) Participation Level (AADPL) and authorizes the City Manager or his designee to sign the Disadvantaged Business Enterprise (DBE) Annual Submittal Forms for Federal Fiscal Year 2024/2025 on behalf of the City of Colton.

PASSED,
APPROVED AND ADOPTED THIS 4TH DAY OF JUNE 2024.
_______________________________
F
RANK J. NAVARRO
Mayor
ATTEST:
___________________________

STEPHANIE VARGAS
Deputy City Clerk

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DBE Implementation Agreement for Local Agencies
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Exhibit 9-A: DBE Implementation Agreement for Local Agencies

CALIFORNIA DEPARTMENT OF TRANSPORTATION (CALTRANS)

DISADVANTAGED BUSINESS ENTERPRISE (DBE) IMPLEMENTATION AGREEMENT For the City of ____Colton___________________, hereinafter referred to as “SUB-RECIPIENT.” I. Definition of Terms
The terms used in this agreement have the meanings defined in 49 CFR 26.5.

I
I. Objective/Policy Statement (49 CFR 26.1 and 26.23)
SUB-RECIPIENT intends to receive federal financial assistance from the U. S. Department of Transportation (DOT) through the California Department of Transportation (Caltrans), and as a
c
ondition of receiving this assistance, SUB-RECIPIENT will sign the California Department of Transportation Disadvantaged Business Enterprise Implementation Agreement (hereinafter referred to as Agreement). SUB-RECIPIENT agrees to implement the State of California, Department of Transportation Disadvantaged Business Enterprise (DBE) Program Plan (hereinafter referred to as the DBE Program Plan) as it pertains to Local Agencies. The DBE Program Plan is based on U.S. Department of Transportation (DOT), 49 CFR 26 requirements.

It is the policy of SUB-RECIPIENT to ensure that DBEs, as defined in 49 CFR 26, have an equal opportunity to receive and participate in DOT-assisted contracts. It is also SUB- RECIPIENT’s policy:
• To ensure nondiscrimination in the award and administration of DOT-assisted contracts. • To create a level playing field on which DBE’s can compete fairly for DOT-assist ed
c
ontracts.
• To ensure that the DBE participation percentage is narrowly tailored, in accordance with appl
icable law.
• To ensure that only firms that fully meet 49 CFR 26 eligibility standards are permitted to participate as DBEs.
• To help remove barriers to the participation of DBEs in Federal-aid contracts. • To assist the development of firms that can compete successfully in the market plac e
out
side the DBE Program.

II
I. Nondiscrimination (49 CFR 26.7)
SUB-RECIPIENT will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and per
formance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the Local Agency components of the DBE Program Plan, SUB- RECIPIENT will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.

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I
V. Annual DBE Submittal Form (49 CFR 26.21)
SUB-RECIPIENT will provide to the Caltrans District Local Assistance Engineer (DLAE) a completed Local Agency DBE Annual Submittal Form (Exhibit 9-B), by June 30 of each year for the following Federal Fiscal Year (FFY). This form must include the name, phone number, email address of the designated Disadvantaged Business Enterprise Liaison Officer (DBELO), and the c
hoice of Prompt Pay Provision to be used by SUB-RECIPIENT for the following FFY.

V. R
ace-Neutral Means of Meeting Caltrans Overall Statewide Annual DBE Goal (49 CFR

26.51(a))
Caltrans expects SUB-RECIPIENT to meet the maximum feasible portion of Caltrans Overall Statewide Annual DBE Goal through race-neutral means of facilitating DBE participation. Race- neutral DBE participation includes when a DBE wins a prime contract through customary competitive procurement procedures, is awarded a subcontract on a prime contract that does not carry a DBE goal, or even if there is a DBE goal, wins a subcontract from a prime contractor that did not consider its DBE status in making the award (e.g., a prime contractor that uses a
s
trict low-bid system to award subcontracts). Race-neutral means include, but are not limited to, the following:

1. Arranging solicitations, times for the presentation of bids, quantities, specifications, and delivery schedules in ways that facilitate the participation of DBE and other small businesses (e.g., unbundling large contracts to make them more accessible to small businesses, requiring or encouraging prime contractors to subcontract portions of work that they might otherwise perform with their own forces);

2. Providing assistance in overcoming limitations such as inability to obtain bonding or financing (e.g., by such means as simplifying the bonding process, reducing bondi ng
r
equirements, eliminating the impact of surety costs from bids, and providing services to help DBEs and other small businesses obtain bonding and financing);

3. Providing technical assistance and other services;

4. Carrying out information and communication programs on contracting procedures and specific contract opportunities (e.g., ensuring the inclusion of DBEs and other small businesses on SUB-RECIPIENT mailing lists of bidders; ensuring the dissemination t o
bi
dders on prime contracts of lists of potential subcontractors; provision of information in languages other than English, where appropriate);

5. Implementing a supportive services program to develop and improve immediate and l
ong-term business management, record keeping, and financial and accounting c
apability for DBEs and other small businesses;

6. Providing services to help DBEs and other small businesses improve long-term dev
elopment, increase opportunities to participate in a variety of types of work, handle i
ncreasingly significant projects, and achieve eventual self-sufficiency;

7. Establishing a program to assist new, start-up firms, particularly in fields in which DBE participation has historically been low;

8. Ensuring distribution of your DBE directory through print and electronic means to the widest feasible universe of potential prime contractors; and

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ember 2020

9. Assisting DBEs and other small businesses to develop their capability to utilize emerging technology and conduct business through electronic media.

VI. Race-Conscious Means of Meeting Caltrans Overall Statewide Annual DBE Goal (49 CFR

26.51(d))
SUB-RECIPIENT must establish DBE contract goals to meet any portion of Caltrans Overall Statewide Annual DBE Goal that cannot be achieved through race-neutral means.

VII. Q uotas (49
CFR 26.43)
SUB-RECIPIENT will not use quotas or set-asides in any way in the administration of the Local Agency component of the DBE Program Plan.

VIII. D BE Li
aison Officer (DBELO) (49 CFR 26.25)
SUB-RECIPIENT has designated a DBE Liaison Officer. The DBELO is responsible for implementing the DBE Program Plan as it pertains to the SUB-RECIPIENT, and ensures that the SUB-RECIPIENT is fully and properly advised concerning DBE Program Plan matters. [Specify resources available to the DBELO; e.g., the DBELO has a staff of two professional employees assigned to the DBE program on a full-time basis and two support personnel who devote a portion of their time to the program.] The name, address, telephone number, email address, and an organization chart displaying the DBELO’s position in the organization are found in Attachment to this Agreement. This information will be updated annually and included on the DBE Annual Submittal Form.

The DBELO
is responsible for developing, implementing, and monitoring the SUB-RECIPIENT’s requirements of the DBE Program Plan in coordination with other appropriate officials. Duties and responsibilities include the following:

1. Gathers and reports statistical data and other information as required.

2. Reviews third party contracts and purchase requisitions for compliance with this program.

3. Works with all departments to determine DBE contract goals.

4. Ensures that bid notices and requests for proposals are made available to DBEs in a timely manner.

5. Analyzes DBE participation and identifies ways to encourage participation through race- neutral means.

6. Participates in pre-bid meetings.

7. Advises the CEO/governing body on DBE matters and DBE race-neutral issues.

8. Provides DBEs with information and recommends sources to assist in preparing bids, obtaining bonding and insurance.

9. Plans and participates in DBE training seminars.

10. Provides outreach to DBEs and community organizations to fully advise them of contracting opportunities.

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IX. Federal Financial Assistance Agreement Assurance (49 CFR 26.13) Each agreement SUB-RECIPIENT signs with Caltrans must include the following assurance:

The SUB-RECIPIENT shall not discriminate on the basis of race, color, national origin, or sex in t
he award and performance of any DOT-assisted contract, or in the administration of its DBE Program, or the requirements of 49 CFR 26. The SUB-RECIPIENT shall take all necessary and r
easonable steps under 49 CFR 26 to ensure nondiscrimination in the award and administration o
f DOT-assisted contracts. The SUB-RECIPIENT’s DBE Program, as required by 49 CFR 26 and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the SUB-RECIPIENT of its failure to carry out its approved p
rogram, Caltrans may impose sanctions as provided for under 49 CFR 26 and may, in appr
opriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.).

E
ach contract Sub-recipient signs with a contractor (and each subcontract the prime contractor signs with a subcontractor) must include the following assurance:

T
he contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR 26 in the award and administration of DOT-assisted contracts. Failure by the c
ontractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as the Sub-recipient deems appropriate.

X. D
BE Financial Institutions (49 CFR 26.27)
SUB-RECIPIENT must investigate the full extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged individuals in the community to make reasonable efforts to use these institutions, and to encourage prime contractors on
DO
T-assisted contracts to make use of these institutions.

I
nformation on the availability of such institutions can be obtained from the DBELO. The C
altrans Disadvantaged Business Enterprise Program may offer assistance to the DBELO.

XI
. Directory (49 CFR 26.31)
SUB-RECIPIENT will refer interested persons to the Unified Certification Program DBE directory available from the Caltrans Disadvantaged Business Enterprise Program’s website.

X
II. Required Contract Clauses (49 CFR 26.13 and 26.29)
For the purpose of this section, contractor also means consultant, and subcontractor also includes subconsultant. For prompt payment, the following State regulations are referenced: the California Business and Professions Code (CBPC), California Public Contract Code (CPCC) and California Civil Code (CCC).

S
UB-RECIPIENT ensures that the following clauses or equivalent will be included in each DOT- assisted prime contract:

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A. Contract Assurance
T
he contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable r
equirements of 49 CFR 26 in the award and administration of DOT-assisted contracts.

Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as SUB- RECIPIENT deems appropriate.

NOTE: This language is to be used verbatim, as is stated in Exhibit 12-G: Required Federal- aid Contract Language. See also 49 CRF 26.13(b).

Prompt Payment
Prompt Progress Payment to Subcontractors
The Local Agency shall require contractors and subcontractors to pay their subcontractors within seven (7) days for construction contracts, and within fifteen (15) days for consultant contracts, after receiving each progress payment. Any delay or postponement of payment may take place only for good cause and with the Local Agency’s prior written approval. Any violation of these provisions shall subject the violating contractor or subcontractor to the penalties, sanctions and remedies specified in Section 7108.5 of the CBPC and Section 10262 of the CPCC for construction contract, and Section 3321 of the CCC for consultant contract. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor performance, and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors.

Prompt Payment of Withheld Funds to Subcontractors
The Local Agency shall ensure prompt and full payment of retainage from the prime contractor to the subcontractor within seven (7) days for construction contracts, or within fifteen (15) days for consultant contracts after the subcontractor’s work is satisfactorily completed and accepted. This shall be accompanied by including; either (1), (2), or (3) of the following provisions [Local Agency equivalent will need Caltrans approval] in their federal-aid contracts to ensure prompt and full payment of retainage [withheld funds] to subcontractors in compliance with 49 CFR 26.29.

1. No retainage will be held by the Local Agency from progress payments due to the prime contractor. Prime contractors and subcontractors are prohibited from holding retainage from subcontractors. Any delay or postponement of payment may take place only for good cause and with the Local Agency’s prior written approval. Any violation of these provisions shall subject the violating contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the CBPC and Section 10262 of the CPCC for construction contracts, and Section 3321 of the CCC for consultant contracts. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor performance, and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors.

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2. No retainage will be held by the Local Agency from progress payments due to the prime contractor. Any retainage kept by the prime contractor or by a subcontractor must be paid in full to the earning subcontractor within seven (7) days for construction contracts, or within fifteen (15) days for consultant contracts after the subcontractor’s work is satisfactorily completed. Any delay or postponement of payment may take place only for good cause and with the Local Agency’s prior written approval. Any violation of these provisions shall subject the violating contractor or subcontractor to the penalties, sanctions, and remedies specified in Section 7108.5 of the CBPC and Section 10262 of the CPCC for construction contracts, and Section 3321 of the CCC for consultant contracts. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor, deficient subcontractor performance, and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors.

3. The Local Agency shall hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the Local Agency of the contract work and pay retainage to the prime contractor based on these acceptances. The prime contractor or subcontractor shall return all monies withheld in retention from all subcontractors within seven (7) days for construction contracts, or within fifteen (15) days for consultant contracts after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the Local Agency. Any delay or postponement of payment may take place only for good cause and with the Local Agency’s prior written approval. Any violation of these provisions shall subject the violating prime contractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the CBPC and Section 10262 of the CPCC for construction contracts, and Section 3321 of the CCC for consultant contracts. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the contractor or subcontractor in the event of: a dispute involving late payment or nonpayment by the contractor; deficient subcontractor performance; and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors.

Any violation of these provisions shall subject the violating prime contractor or subcontractor to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the prime contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor.

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III. Local Assistance Procedures Manual (LAPM)
The SUB-RECIPIENT will advertise, award and administer Federal-aid contracts in accordance w
ith the current Local Assistance Procedures Manual (LAPM) including Forms and Exhibits.

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XIV. Vehicle Manufacturers/Specialized Equipment (§26.49) If Federal-aid contracts will include vehicle/specialized equipment procurements, SUB- RECIPIENT will require each vendor, as a condition of being authorized to bid or propose on vehicle/specialized equipment procurements, to certify that it has complied with the r
equirements of 49 CFR 26.69.

XV. R
eporting to the DLAE
SUB-RECIPIENT will promptly submit a copy of the Consultant Proposal DBE Commitment (Exhibit 10-O1) at the time of award of the consultant contract.

S
UB-RECIPIENT will promptly submit a copy of Consultant Contract DBE Information (Exhibit 10-O2) or the Local Agency Bidder DBE Commitment (Construction Contracts) (Exhibit 15-G) to the DLAE within 30 days after execution of consultant or construction contract.

S
UB-RECIPIENT will promptly submit a copy of the Final Report-Utilization of DBE, First-Tier Subcontractors (Exhibit 17-F) of the LAPM, immediately upon completion of each consultant or construction contract.

XVI
. Certification (§26.83(a))
SUB-RECIPIENT ensures that only DBE firms currently certified by the California Unified Ce
rtification Program (CUCP) will participate as DBEs on Federal-aid contracts.

XVI
I. Confidentiality
SUB-RECIPIENT will safeguard from disclosure to third parties, information that may reasonably be regarded as confidential business information consistent with federal, state, and lo
cal laws.

XVIII. Prompt Payment from the Local Agency to the Contractors (California Public Contract Code §20104.50)
The Local Agency shall make any progress payment within 30 days after receipt of an undisputed and properly submitted payment request from a contractor on a construction contract. If the Local Agency fails to pay promptly, the Local Agency shall pay interest to the contractor, which accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied. Upon receipt of a payment request, the Local Agency shall act in accordance with both of the following:
(1) Each payment request shall be reviewed by the Local Agency as soon as practicable after receipt for the purpose of determining that the payment request is a proper payment request.
(2) Any payment request determined not to be a proper payment request suitable for payment shall be returned to the contractor as soon as practicable, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall be accompanied by a document setting forth in writing the reasons why the payment request is not proper.

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By: _________________________________________ Date: _____________________________ (Signature)
__William R. Smith, City Manager_____________ Phone #: _ (909) 370-5051_______________ (Print Name and Title)

ADMINISTERING AGENCY
(Authorized Governing Body Representative)
T
his California Department of Transportation’s Disadvantaged Business Enterprise Program Implementation Agreement is accepted by:
________________ _________________________ Date: _____________________________ (Signature of DLAE)
________________ _________________________
(Print Name of DLAE)
Distribution: (1) Original – DLAE
(2) Signed copy by the DLAE – Local Agency

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Attachment: Exhibit A - Resolution FY 24-25 DBE (4533 : DBE Participation Level - Federal Fiscal Year 2024/2025) Attachment A

CITY OF COL TON

PUBLIC WORKS/ ENGINEERING DIVISION

ORGANIZATIONAL CHART
'
\..

Project Manager
Cristian Cruz
Utilities Engineer
Jess Sotte, P £
DBELO:

Victor Ortiz, PE
Asst. PW Director/City Engineer.
160 S. 10th St., Colton, CA 92324
Tel. (909) 514-4210
[email protected]

PW/UTILITIES DIRECTOR

BRIAN DICKINSON
ASST. PW DIR./CITY ENGINEER
Victor Ortiz, PE - DBELO
Associate Engineer
Moises Pera1t9, EIT
'I
..I
..I
PW Inspector
Carlos Esquer
Engineering Assistant
Vacant

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Attachment: Exhibit A - Resolution FY 24-25 DBE (4533 : DBE Participation Level - Federal Fiscal Year 2024/2025) Methodology
The process for establishing the Annual Anticipated DBE Participation Level (AADPL) was derived from data gathered from the U.S. Census Bureau - 2021 County Business Patterns (NAICS) and California Department of Transportation (Caltrans) Civil Rights Program. The data was gathered based upon four counties in which City of Colton lies and neighbors. These four counties include Los Angeles, Orange, Riverside, and San Bernardino, in the State of California.

The U.S. Census Bureau's Economic Census and the County Business Patterns contain all business and minority business data which are to be compiled as of the latest published version. For the purpose of calculating the City's overall D BE goal, we used these neighboring counties as the market area. Those jurisdictions and municipalities most closely reflect the same jurisdictions where businesses are located that typically participate in the bid process for DBE projects awarded by the City of Colton. Also, in researching the most reliable sources of data available to complete our calculations, it was discovered that the best data could be obtained for the jurisdictions and municipalities contained in these areas.

In order to establish the City of Colton's base figure reflecting the relative availability of DBEs in relation to all comparable firms available to participate in the City's DOT assisted and other federally funded contracts. T he City elected to use the Di rectory of Certified Firms with Census Bureau Data methodology. The strategy used to determine DBE availability involved a multi-step process. First, we identified the major work types (North American Industrial Classification System - NAICS) for the contr acts anticipated for award in the upcoming fiscal year. Second, using the United States Census Bureau's 2021 County' Business Patterns data, we identified the businesses located in the counties noted for which data was available and recorded the number of businesses found for each work type. This particular database was used because it contained the most recent information available for counting the number of businesses located in the jurisdiction for each work type. Then, using Caltrans' database of DBE firms, we queried DBE f irms for the appropriate NAICS codes and license type. Using that list, we identified the DBE firms ready, willing and able to perform services in our mar ket area. Projected DOT and Federally assisted contracts by work type and NAICS Code For FY 2024/2025 we took the dollar value of work related to each work type (from the chart of federal DB E projects anticipated for award for the fiscal year) and calculated the percentage of federal funds applicable to each work type. Then, using Caltrans' Directory of Certified firms, we determined the availability of DBE firms for each work type by dividing the number of DBEs in the directory by the number of firms found in the census bureau data for each work type. Using the same Caltrans directory, Disadvantage Business Enterprise ( DBE) Male firms (African Americans, Asian Pacific American, Native American , Hispanic American, and Subcontinent Asian American and any other groups whose members are certified as socially and economically disadvantaged ), and women owned firm were further set aside to calculate for the Race Neutral DBE. AADPL calculations for New Race Neutral DBEs are shown on the succeeding page.

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Attachment: Exhibit A - Resolution FY 24-25 DBE (4533 : DBE Participation Level - Federal Fiscal Year 2024/2025) Counties 237310 238210 541330 541370 541380
Highway Electrical Engineering Surveying Geo. Testing
Los Angeles 75 2178 1754 71 206
Orange 69 905 1235 48 149
Riverside 59 649 298 39 37
San Bernardino 47 453 237 29 38
Total Establishment 250 4185 3524 187 430
FY 2024-2025 Annual DBE Submittal
Establishment Located in Market Area
From U.S. Census 2021 County Business Patterns (NAICS)

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Attachment: Exhibit A - Resolution FY 24-25 DBE (4533 : DBE Participation Level - Federal Fiscal Year NAICS Code - Trade/Work
Working in MA Located in MA Working in MA Located in MA Working in MA Located in MA 237310 - Highway 73 13 152 30 225 43
238210 - Electrical 51 5 121 12 172 17
541330 - Engineering 138 16 306 27 444 43
541370 - Surveying 28 4 49 13 77 17
541380 - Lab. Testing 28 2 45 11 73 13
Total 318 40 673 93 991 133
FY 2024-2025 Annual DBE Submittal
DBE Female DBE Male All DBE Firms
From Caltrans DBE Website

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Attachment: Exhibit A - Resolution FY 24-25 DBE (4533 : DBE Participation Level - Federal Fiscal Year Projects 237310 238210 541330 #541370 #541380 Total
Highway & Bridges Electrical Engineering Surveying Geotech/Testing 1 La Cadena Bridge (Santa Ana River) Replacement 23,218,000.00$ 450,000.00$ 3,220,200.00$ 150,000.00$ 180,000.00$ 27,218,200.00 2 Mt. Vernon Bridge over UPRR Widening 19,790,000.00$ 170,000.00$ 2,724,000.00$ 120,000.00$ 150,000.00$ 22,954,000.00 3 Barton Bridge Removal Project 2,178,000.00$ 226,700.00$ 40,000.00$ 60,000.00$ 2,444,700.00 Total 45,186,000.00$ 620,000.00$ 6,170,900.00$ 310,000.00$ 390,000.00$ 52,616,900.00$ Weighted % 0.859 0.012 0.117 0.006 0.007 1.00 FY 2024-2025 Annual DBE Submittal
NAICS Code

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Attachment: Exhibit A - Resolution FY 24-25 DBE (4533 : DBE Participation Level - Federal Fiscal Year 2024/2025) (A) Total Establishment Located in
Market Area (from CBP table)
All Female DBE Firms Working in
Market Area (from CUCP
Female DBE Located in Market
Area
All Male DBE Firms Working in
Market Area (from CUCP
Male DBE Located in Market
Area
Total DBE Firms Working in
Market Area (from CUCP
(C) Total DBE Firms Located in
Market Area (from CUCP
(D) Weight

C C C C C

A A A A A
43 17 43 17 13
250 4185 3524 187 430
= (( ) + ) + ( ) + ( ) + ( ))x 100%
=
#237310
Highway/Bridge
#238210
Electrical
#237310
30 AADPL = New RC DBE =
250 4185
73 51
13 5
X D(( )+(
152
225
12 121
=

15.0%
(( X )+(

0.1477 0.0000

0.859 X 0.012 )+(
#238210
172
X D )+(
43 17

0.0120.859
28 16 4
306 49

0.117 0.006
27 13
444 77
43 X D )+(
X 0.117 )+(

0.0014 0.0002
#541370
Engineering
#541330 #541370
X D
X 0.006

0.0005
)+(
)+(
Surveying
3524 187
138
17 FY 2024-2025 Annual DBE Submittal

NAICS CODES
)) x0.007X
)) xDX 100%
100%
#541380
Geo. Testing
430
28 2
45 11
73 13

0.007
#541380
#541330

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Attachment: Exhibit A - Resolution FY 24-25 DBE (4533 : DBE Participation Level - Federal Fiscal Year Local Assistance Procedures Manual EXHIBIT 9-E
Sample Evaluation of Good Faith Efforts

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Colton City CouncilJune 4, 2024

Colton City Council
June 4, 2024