30, 2026, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than six months.
Consultant 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.
3.2 Fees and Payments.
3.2.1 Compensation. Consultant 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 Seventy- Four Thousand, Four -Hundred Dollars ($74,400.00) without written approval of the City Council or City Manager as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.2.2 Payment of Compensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice.
City shall, within 30 days of receiving such invoice, review the invoice and pay all non -disputed and approved charges thereon. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein.
3.2.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in S"C" of this Agreement.
3.2.4 Extra Work . At any time during the term of this Agreement, City may request that Consultant 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.
Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City.
Rate Increases. In the event that this Agreement is renewed pursuant to Section 3.1.2, the rate set forth in Exhibit “C” may be adjusted each year at the time of renewal as set forth in Exhibit “C.”
3.3 Responsibilities of Consultant.
3.3.1 Independent Contractor; Control and Payment of Subordinates . The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Consultant 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 Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, nor any of its officials, officers, directors, employees or agents shall have c ontrol over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall pay all wages,
salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, bu t not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
3.3.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the p rofessional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.3.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City.
3.3.4 Substitution of Key Personnel . Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shal l be promptly removed from the Project by the Consultant at the request of the City. The key personnel for performance of this Agreement are as follows: Jessie Bruckhart, Senior Planner.
3.3.5 City's Representative. The City hereby designates Heidi Duron, Director, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Work or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Work or change the Consultant's total compensation subject to the provisions contained in Section 3. 2 of this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.
3.3.6 Consultant's Representative. Consultant hereby designates Michelle E.
Furlong, Operations Manager, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement.
The Consultant's Representative shall supervise and direct the Services, using his/her 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.
3.3.7 Coordination of Services. Consultant 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.
3.3.8 Standard of Care; Performance of Employees. Consultant 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. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the S ervices assigned to them. Finally, Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, 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, Consultant 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 Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threa t 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 Consult ant and shall not be re -employed to perform any of the Services or to work on the Project.
3.3.9 Period of Performance. Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”).
Consultant shall also 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 separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Project Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage.
3.3.10 Laws and Regulations ; Employee/Labor Certification. Consultant 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, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If Consultant performs any work knowing it to be contrary to such laws, rul es and regulations, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees, agents, and volunteers free and harmless, 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.
3.3.10.1 Employment Eligibility; Consultant . By executing this Agreement, Consultant 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 Ac t of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Consultant.
Consultant 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. Consultant shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification 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. Consultant 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 Consultant’s compliance with the requirements provided for in Section 3.3.10 or any of its sub- sections.
3.3.10.2 Employment Eligibility; Subcontractors, Consultants, Sub- subcontractors and Subconsultants . To the same extent and under the same conditions as Consultant, Consultant shall require all of its subcontractors, consultants, sub-subcontractors and subconsultants 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 3.3.10.1.
3.3.10.3 Employment Eligibility; Failure to Comply . Each person executing this Agreement on behalf of Consultant verifies that they are a duly authorized officer of Consultant, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Consultant or its subcontractors, consultants, sub- subcontractors or subconsultants to meet any of the requirements provided for in Sections
3.3.10.1 or 3.3.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Consultant under Section
3.3.10.2); or (3) failure to immediately remove from the Project any person found not to be in compliance with such requirements.
3.3.10.4 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, 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. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.3.10.5 Air Quality . To the extent applicable, Consultant 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, Consultant 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. Consultant 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 Consultant, its sub-consultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement.
3.3.10.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant 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, where 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 subconsultants, 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 injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
3.3.11 Insurance.
Time for Compliance. Consultant 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, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this Section.
3.3.11.2 Minimum Requirements. Consultant 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 Consultant , its agents, representatives, employees or subconsultants.
Consultant shall also require all of its subconsultants 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 Insurance. 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 Business 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 . Consultant 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, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the 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 specifications 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 Consultant or the City may withhold amounts sufficient to pay premium from Consultant payments. In the alternative, the City may suspend or terminate this Agreement.
3.3.11.3 Professional Liability Consultant shall procure and maintain, and require its sub- consultants to procure and maintain, for a period of five (5) years following completion of the Project, errors and omissions liability insurance appropriate to their profession.
Such insurance shall be in an amount not less than $1,000,000 per claim, and shall be endorsed to include contractual liability. Defense costs shall be paid in addition to the limits.
3.3.11.4 Insurance Endorsements . The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies:
(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 completed operations performed by or on behalf of the Consultant, 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 Consultant’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, officers, employees, agents, and volunteers shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. Notwithstanding the minimum limits set forth in Section
3.3.11.2(B), any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties requir ed to be named as additional insureds pursuant to this Section 3.3.11.4(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, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, offic ers, employees, agents, and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’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 Consultant’s insurance and shall not be called upon to contribute with it in any way.
Notwithstanding the minimum limits set forth in Section 3. 3.11.2(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 3.3.11.4(B). (C) Workers’ Compensation and Employer’s Liability Coverage.
The insurer shall agree to waive all rights 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 Consultant. (D) All Coverages . Each insurance policy required 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.
3.3.11.5 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 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 other additional insureds, or shall specifically allow Consultant or o thers providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, 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 subconsultants.
3.3.11.6 Deductibles and Self -Insurance Retentions . Any deductibles or self-insured retentions must be declared to and approved by the City. Consultant shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self -insured retentions as respec ts the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses.
3.3.11.7 Subconsultant Insurance Requirements . Consultant shall not allow any subconsultants 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 re quested by Consultant, the City may approve different scopes or minimum limits of insurance for particular subconsultants. The Consultant and the City shall be named as additional insureds on all subconsultants’ policies of Commercial General Liability using ISO form 20 38, or coverage at least as broad.
3.3.11.8 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.
3.3.11.9 Verification of Coverage. Consultant 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 reserves the right to require complete, certified copies of all required insurance policies, at any time.
3.3.11.10 Reporting of Claims. Consultant shall report to the City, in addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in connection with the Services under this Agreement.
3.3.12 Water Quality Management and Compliance.
3.3.12.1 Storm Water Management . Storm, surface, nuisance, or other waters may be encountered at various times during the Services. Consultant hereby acknowledges that it has investigated the risk arising from such waters, and assumes any and all risks and liabilities arising therefrom.
3.3.12.2 Compliance with Water Quality Laws, Ordinances and Regulations. Consultant shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Services including, wi thout limitation, all applicable provisions of the City’s ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter -Cologne Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such authority. Consultant must additionally comply with the lawful requirements of the City, and any other municipality, drainage district, or other local agency with jurisdiction over the location where the Services are to be conducted, regulating water quality and storm water discharges.
3.3.12.3 Standard of Care. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations an d policies described in Section 3.2.12.2 of this Agreement. Consultant further warrants that it, its employees and subcontractors have or will receive adequate training, as determined by the City, regarding these requirements as they may relate to the Services.
3.3.12.4 Liability for Non-compliance.
(A) Indemnity: Failure to comply with laws, regulations, and ordinances listed in Section 3.3.12.2 of this Agreement is a violation of federal and state law.
Notwithstanding any other indemnity contained in this Agreement, Consultant agrees to indemnify and hold harmless the City, its officials, officers, agents, employees and authorized volunteers from and against any and all claims, demands, losses or liabilities of any kind or nature which the City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for noncompliance with the laws, regulations, and ordinances listed above, arising out of or in connection with the Services, except for liability resulting from the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers.
(B) Defense: City reserves the right to defend any enforcement action or civil action brought against the City for Consultant’s failure to comply with any applicable water quality law, regulation, or policy. Consultant hereby agrees to be bound by, and to reimburse the City for the costs associated with, any settlement reached between the City and the relevant enforcement entity.
(C) Damages: City may seek damages from Consultant for delay in completing the Services caused by Consultant’s failure to comply with the laws, regulations and policies described in Section 3.3.12.2 of this Agreement, or any other relevant water quality law, regulation, or policy.
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant 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. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant s hall 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 request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the project and require the same of any subconsultants. This project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant.
3.4.3 Labor Certification. By its signature hereunder, Consultant 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 Worker's 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.
3.5 Accounting Records.
3.5.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant 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. Consultant 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.
3.6 General Provisions.
3.6.1 Termination of Agreement.
3.6.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause.
3.6.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request.
3.6.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.6.2 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:
Consultant: CASC Engineering & Consulting
1470 E. Cooley Dr.
Colton, CA. 92324
ATTN: Michelle E. Furlong, Operations Manager
City: City of Colton
650 North La Cadena Drive
Colton, CA 92324
ATTN: Heidi Duron, Director
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 not ice on the date actual notice occurred, regardless of the method of service.
3.6.3 Ownership of Materials and Confidentiality.
3.6.3.1 Documents & Data; Licensing of Intellectual Property . This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City, and shall not be used in whole or in substantial part by Consultant on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Consultant shall provide to City reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Consultant is entitled under the termination provisions of this Agreement, Consultant shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Consultant shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
3.6.3.2 Subconsultants. Consultant shall require all subconsultants to agree in writing that City is granted a non -exclusive and perpetual license for any Documents & Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or its subconsultants, or those provided to Consultant by the City.
3.6.3.3 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a pro ject other than this Project without employing the services of Consultant shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless Consultant and its officers, directors, agents and employees from claims arising out of the negligent use or re- use of the Documents & Data on such other project. Consultant shall be responsible and liable for its D ocuments & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Consultant shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Consultant, a party for whom the Consultant is legally responsible or liable, or anyone approved by the Consultant.
3.6.3.4 Indemnification. Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any
patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
3.6.3.5 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be di sclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed c onfidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.6.3.6 Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Consultant of its intention to release Proprietary Information.
Consultant shall have five (5) working days after receipt of the Release Notice to give City written notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of the Objection Notice unless either: (1) Consultant fails to fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non-appealable order by a court of competent jurisdiction requires that City release such information.
3.6.4 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.
3.6.5 Indemnification.
3.6.5.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consul tant, its officials, officers, employees, subconsultants or agents in connection with the performance of the Consultant’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
3.6.5.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
3.6.6 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.
3.6.7 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, disputed work, claims and/or changed conditions, Consultant 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 the 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 Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.6.8 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.6.9 City's Right to Employ Other Consultants . City reserves right to employ other consultants in connection with this Project.
3.6.10 Successors and Assigns . This Agreement shall be binding on the successors and assigns of the parties.
3.6.11 Assignment or Transfer . Consultant 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.
3.6.12 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 Consultant include all personnel, employees, agents, and subconsultants of Consultant, 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.
3.6.13 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.6.14 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, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.6.15 No Third- Party Beneficiaries . There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.6.16 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.
3.6.17 Prohibited Interests . Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant 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 Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in th e 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 employee 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.
3.6.18 Authority to Enter Agreement. Consultant 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.
3.6.19 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.7 Subcontracting.
3.7.1 Prior Approval Required. Consultant 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.
[SIGNATURES ON NEXT PAGE]
SIGNATURE PAGE TO
PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF COLTON AND CASC ENGINEERING AND CONSULTING, INC.
CITY OF COLTON CASC ENGINEERING AND CONSULTING, INC.
By: ____________________________ By: _________________________ William R. Smith Michelle E. Furlong,
City Manager Operations Manager
Attest:
By: _________________________
Isaac T. Suchil
City Clerk
Approved as to Form:
______________________________
Best Best & Krieger LLP
City Attorney
www.cascinc.com
1470 E. Cooley Dr.
Colton, CA 92324
Office: 909.362.7645
May 28, 2025
CITY OF COLTON
Ms. Heidi Duron
Director of Development Services
659 N La Cadena Drive,
Colton, CA 92324
SUBJECT: SCOPE OF WORK/ PROPOSAL FOR CONTRACT ANALYST SERVICES
Dear Ms. Duron,
Casc Engineering and Consulting, Inc. (C asc), appreciates the opportunity to submit this proposal to provide “part-time
analyst services” to the City of Colton Development Services Department. Casc understands that the City is seeking a competent and qualified professional to deliver high -quality planning and analytics support to assist with streamlining permitting processes, enhancing interdepartmental coordination, implementing performance measures, and providing data- driven insights for the City’s Development Services/Planning Division. Casc is a certified SBE firm (Certification No. 1440120), and we are fully prepared to provide reliable, accessible, and responsive remote support to advance the City’s development services objectives efficiently and effectively.
Casc has a clear understanding of the City’s priorities and the desired scope of support services. C asc is prepared to provide experienced analytical and planning support to assist City staff with improving permitting processes, enhancing interdepartmental coordination, managing permit system data, and supporting performance measurement initiatives.
Services may include assistance with tracking and reporting on development applications, supporting the preparation of procedural documentation, and contributing to the development of standard operating procedures to improve internal workflows. Additionally, C asc can provide analytical support in reviewing planning -related materials, tracking permit timelines, supporting quarterly fee reporting, and assisting with the preparation of clear, data-driven reports for management and decision-makers. These services are d esigned to augment existing City staff capacity and ensure timely, accurate, and efficient support for the City’s Development Services/Planning Division.
Casc is a leader in providing planning and analytical support services to cities and counties throughout Southern California.
Our team brings extensive experience in land use planning, process improvement, and environmental planning support, which positions us well to assist the City of Colton’s Development Services Department. C asc’s approach is to leverage our deep understanding of municipal operations, including General Plan implementation, Zoning Ordinance interpretation, and Municipal Code requirements, while working closely with City staff to streamline permitting workflows, enhance reporting and analytics, and support the City’s overall development review process. Our goal is to augment the City’s staff capacity by delivering reliable, data -driven ins ights and procedural support that contribute to more efficient and effective service delivery.
The scope of services proposed aligns directly with the City’s needs to enhance the building permit process, streamline internal workflows, and strengthen performance tracking and reporting capabilities. Our background includes hands -on management of permitting systems, preparation of regulatory reports, and development of standard operating procedures— all of which will provide immediate value to the Development Services Department.
Key areas where Casc can contribute include:
• Process Improvement & Streamlining: Leveraging proven methods to identify bottlenecks and implement solutions that enhance permitting efficiency and interdepartmental collaboration. • Permit System Management & Analytics: Offering practical experience with permit tracking systems, including data management, troubleshooting, and reporting to support informed decision-making. • Performance Measures & SOP Development: Establishing clear performance metrics and drafting comprehensive procedures to promote consistency, accountability, and transparency.
www.cascinc.com
1470 E. Cooley Dr.
Colton, CA 92324
Office: 909.362.7645
• Website & Public Information Support: Ensuring public-facing information is accurate, accessible, and responsive to community needs.
With a collaborative approach and strong project management skills, C asc is committed to supporting the Development Services Department with reliable, high -quality work within the 20 -hour per week contract framework as needed . Our experience working with municipal agencies has given a deep understanding of the importance of clear communication, regulatory compliance, and excellent customer service in public sector operations.
We welcome the opportunity to contribute to the City of Colton’s mission. If you have any questions our Director of Planning, Mr. Frank Coyle may be reached by phone at (909) 362-7645 or by email at [email protected].
Thank you for your consideration.
Best regards,
CASC ENGINEERING & CONSULTING
Michelle E. Furlong
Operations Manager (Authority to bind)
855-383-0101
[email protected]
CASC ENGINEERING & CONSULTING
Frank Coyle
Director of Planning
909-362-7645
[email protected]
www.cascinc.com
CITY OF COLTON
CONTRACT ANALYST SERVICES
SCOPE OF WORK
CONTRACT ANALYST SERVICES
CITY OF COLTON — DEVELOPMENT SERVICES DEPARTMENT
This scope of work is based on our understanding of the City’s objectives for the Contract Analyst Position, as well as the available resources. The Casc Team recognizes that the work program and schedule may be refined, and we are committed to tailoring our approach to best meet the needs of the City and community.
POSITION SUMMARY:
The Analyst will provide part -time (20 hours/week , for 6 months ), professional support to the Development Services Department, focusing on process improvements, data management, and operational support for permitting functions. This role is essential to enhance efficiency, transparency, and customer service in the City’s building permit processes and related functions and promote economic development through improved service delivery.
KEY RESPONSIBILITIES:
1. Process Improvement & Streamlining
o Analyze and recommend improvements to the building permit process to enhance efficiency and customer experience.
o Identify opportunities for streamlining workflows within and between departments. o Coordinate with internal departments to align processes and reduce redundancies.
2. Permit System Management & Support
o Manage and support the permitting system, including user support, data quality control, and system enhancements.
o Assist in system troubleshooting and recommend upgrades or adjustments to optimize functionality.
3. Reporting & Analytics
o Prepare and submit quarterly fee reports and other regulatory reports as required. o Track permit timelines and generate performance dashboards to monitor processing benchmarks. o Provide analytics support to inform decision-making and performance evaluations.
4. Performance Measures & Standard Operating Procedures o Assist in the development and implementation of performance measures to evaluate department effectiveness. o Draft and maintain standard operating procedures (SOPs) to ensure consistency and compliance.
5. Interdepartmental Coordination
o Facilitate communication and coordination across Development Services and other departments involved in the permitting process.
o Support cross-departmental initiatives to improve permitting and development review processes.
6. Website & Public Information Support
o Support updates and maintenance of permitting and development-related content on the City’s website. o Ensure that information is clear, accurate, and accessible to the public and stakeholders.
7. General Administrative & Project Support
o Provide project management assistance for special initiatives as needed. o Perform other administrative tasks and support services related to permitting and development services operations.
QUALIFICATIONS & EXPERTISE:
• Extensive experience in municipal permitting processes, land use, and planning services. • Strong skills in process improvement, inter-departmental coordination, and systems management. • Proficient in data analysis, reporting, and performance measure development. • Skilled in preparing clear and effective standard operating procedures and public-facing materials. • Experience supporting website content and customer service in a government setting. • Excellent communication, project management, and organizational skills.
www.cascinc.com
CITY OF COLTON
CONTRACT ANALYST SERVICES
RATE SHEET
CONTRACT ANALYSIS SERVICES
Proposed Hourly Rate: $155/hr
Proposed Monthly Cost (based on 80 hrs/month): $12,400
Total for 6-month contract: $74,400
Billing Frequency: Monthly (Net 30 terms)
Notes:
• Hours listed are estimates and may be adjusted based on project priorities in consultation with City staff. • Services will not exceed the agreed-upon total hours per month without prior written approval. • All work will be invoiced monthly with a detailed breakdown of tasks and hours.
SERVICE DESCRIPTION HOURLY
RATE
ESTIMATED
WEEKLY HOURS
ESTIMATED
MONTHLY
HOURS
ESTIMATED
MONTHLY COST
Process Improvement &
Streamlining
$155 5 20 $3,100.00
Permit System Management &
Support
$155 5 20 $3,100.00
Reporting & Analytics Support $155 4 16 $2,480.00
SOP Development & Performance
Measure Implementation
$155 3 12 $1,860.00
Website & Public Information
Support
$155 3 12 $1,860.00
TOTAL (20 hrs/week, as needed): - 20 hrs 80 hrs $12,400.00
www.cascinc.com
JESSIE BRUCKHART
SENIOR PLANNER
YEARS OF EXPERIENCE:
13+ Years
EDUCATIONAL
BACKGROUND:
B.S. Environmental Planning
and GIS, Indiana University
of Pennsylvania, PA
AREAS OF EXPERTISE:
o Analytics
o Process Improvement
o Permit Software
o Project Management
o CEQA/NEPA
o Zoning Code Updates
o General Plan Updates
o Planning Entitlements
o Community Plans
o Website Design & Social
Media
Ms. Bruckhart brings over 13 years of experience specializing in long-range planning, process improvement and data management and reporting with experience in both the private and public sectors. Her well-rounded background includes extensive experience with state and local reporting requirements, the development and monitoring of key performance indicators (KPIs), and the implementation, development, and maintenance of permit software systems to s upport efficient operations. Prior to joining Casc , she worked for the County of San Bernardino for seven years, serving as a Planner from 2018 to 2023 and a Planning Technician from 2016 to 2018. She previously served as a Contract Planner for the County under Casc’s Contract Planning Services Agreement. She successfully managed and produced weekly, monthly, and quarterly reports on permits and staffing, ensuring accurate tracking and timely reporting to support informed decision-making. Additionally, she played a key role in drafting standard operating procedures (SOPs) to promote process consistency, accountability, and compliance with regulatory requirements.
Ms. Bruckhart’s skill set includes significant experience in process improvement, where she identified operational bottlenecks and implemented practical solutions to streamline workflows. Her involvement in website updates and design ensured that public -facing information was accurate, accessible, and responsive to community needs, further supporting transparency and civic engagement.
Her comprehensive background in data-driven analysis and process improvement combined with her ability to streamline workflows and enhance operational efficiency provides valuable insights and strengthens compliance measures to improve customer service. Her blend of technical expertise and a continuous improvement mindset positions her as a key asset in advancing planning initiatives and driving measurable performance outcomes.
RELEVANT EXPERIENCE:
• EZOP Implementation and Subject Matter Expert - County of San Bernardino • Planning Division Process Improvement Specialist - County of San Bernardino • Sales Force and Open Counter Implementation- County of San Bernardino • Standard Operating Procedures Documentation- County of San Bernardino • Land Use Services GIS Specialist, County of San Bernardino • 2021-2029 Housing Element Update, Project Manager, County of San Bernardino, • San Bernardino County General Plan Update, County of San Bernardino • Countywide Plan and Community Plan Online Survey Management, County of San Bernardino
• Webmaster- Land Use Services Department, County of San Bernardino • RHNA Reporting, County of San Bernardino
• Department of Finance- Housing Unit Change Form, County of San Bernardino • Williamson Act Reporting- County of San Bernardino
• CDBG Reporting- County of San Bernardino
• Measure I Funds Reporting Assistance- County of San Bernardino • CEQAnet Submitter- Multiple Jurisdictions
• Disaster Relief reporting and mapping - Building and Safety Department, County of San Bernardino
• KPI Dashboard and quarterly performance measure reporting- County of San Bernardino • Staff projections- County of San Bernardino
Item: 9.
Staff Report
Meeting Date: April 7, 2026
To: City Council
From: Bill Smith, City Manager
Prepared By: Charles Berry, Electric Utility Director
Item Name: Contract Awards - Auriga Corporation & Asplundh Engineering Services - Approve Contract Awards to Auriga Corporation and Asplundh Engineering Services, LLC for Electric Utility Engineering Consulting Services.
Recommended Action:
Staff recommend that the City Council take the following action:
1. Award Professional Services Agreements for Electric Utility Engineering Consulting Services, in a combined amount not to exceed $1,000,000, consisting of $500,000 to Auriga Corporation and $500,000 to Asplundh Engineering Services, LLC, for an initial three-year term covering the remainder of FY 2026/27 through FY 2028/29, pending approval of annual budget requests, and authorize the City Manager or designee to execute the agreements, which include termination for convenience provisions.
2. Authorize two one-year renewal options, each in a combined amount not to exceed $1,000,000, consisting of $500,000 to Auriga Corporation and $500,000 to Asplundh Engineering Services, LLC, for FY 2029/30 and FY 2030/31, pending budget approval and authorize the City Manager or designee to execute the renewal extensions.
Background:
For several years, the City of Colton Electric Utility (CEU) has strategically utilized specialized electric utility engineering consulting services to supplement internal resources and support the reliable operation, maintenance, and ongoing development of its electric system. While these services are structured as on-call and as-needed, in practice they have become an important and consistently relied upon extension of CEU’s internal capabilities—particularly in areas requiring specialized technical expertise or additional capacity to meet workload demands.
These services provide critical engineering support across transmission, substation, and distribution systems, enabling CEU to effectively address both planned capital improvements and unplanned operational needs while maintaining high standards of system reliability and performance. As system complexity continues to evolve and infrastructure investment needs grow, the use of consulting support has served as a practical near-term bridge to support internal capacity, while ensuring continuity of service and timely project delivery.
This approach is grounded in the principle that prudent, data-driven investments in electric infrastructure are fundamental to comprehensive energy system management. By leveraging engineering expertise to inform planning, design, and execution, CEU is able to optimize system performance, enhance reliability, and deliver these outcomes at the most economical cost level for the community it serves.
At the same time, the consistent utilization of these services provides valuable insight into the scale, frequency, and type of engineering support required to sustain current operations and future system needs. This experience informs ongoing evaluation of organizational alignment and resource planning to ensure the Electric Utility is appropriately structured to meet long-term service expectations.
Consistent with this strategy and in accordance with Municipal Code Section 3.08.110., the City issued a Request for Proposals (RFP) on April 21, 2025 through BidNet Direct, to establish on- call Electric Utility Engineering Consulting Services to support staff in maintaining, operating, and enhancing the electric utility system. The use of on-call consulting services ensures the City maintains access to specialized expertise in a timely and cost-effective manner, while supporting the right-sizing of the organization and avoiding the need to permanently staff highly specialized roles that are required on a variable or project-specific basis.
The deadline for submission of questions and requests for clarification was May 12, 2025.
Proposals were due on June 3, 2025, at 5:00 p.m. Pacific Standard Time. By the proposal deadline, the City received six (6) responsive submissions. Proposals were received from Auriga Corporation, Asplundh Engineering Services, LLC, Cornerstone Utility Engineering, Electric Power Engineers, The Engineering Partners, Inc. (EPI), and ICF Resources, LLC.
Maintaining a reliable, resilient, and cost-effective electric system is central to CEU’s role as both a critical public service provider and an economic engine for the community. Strategic investments supported by qualified engineering expertise enable the City to deliver high-quality service while maintaining competitive electric rates, reinforcing CEU’s commitment to affordability, economic stability, and long-term value for its residents and businesses.
Issues/Analysis:
City staff conducted a comprehensive evaluation of six (6) proposals received in response to the Request for Proposals (RFP), assessing each firm based on cost competitiveness, overall strength and quality of the proposal, demonstrated experience, and subject matter expertise. This structured, multi-criteria evaluation ensured a balanced and objective review aligned with the
City’s operational needs and long-term Electric Utility priorities.
This procurement constitutes professional services for specialized electric utility engineering consulting support, for which selection is appropriately based on demonstrated qualifications and overall value rather than lowest price alone. Given the technical complexity, operational importance, and public safety implications associated with electric utility engineering services, the City evaluated proposals based on multiple factors, including qualifications, experience, technical approach, responsiveness, and cost competitiveness.
To further support the evaluation process, proposals were scored and ranked based on combined average scoring across all criteria. The results demonstrate a clear separation among respondents, with Auriga Corporation and Asplundh Engineering Services, LLC achieving the two highest overall rankings.
As reflected in the scoring results, Auriga Corporation received the highest combined average score of 91, followed by Asplundh Engineering Services at 86, distinguishing both firms from the remaining respondents in terms of technical capability, proposal strength, and overall value to the City.
Based on both the quantitative scoring results and qualitative assessment, these two firms were determined to be highly qualified and well-positioned to support the City’s Electric Utility. Both firms bring extensive experience in transmission and distribution system design, substation engineering, and municipal utility consulting—core competencies required to support a modern electric utility operating in an increasingly complex regulatory, operational, and reliability-driven environment.
From an owner’s perspective, these services are both necessary and prudent. The City, as the electric utility owner and operator, retains ultimate responsibility for system reliability, public safety, regulatory compliance, and long-term asset stewardship. Delivering on these responsibilities requires access to specialized engineering expertise grounded in industry best practices, conservative and risk-informed design standards, and disciplined value engineering.
As the owner of critical electric infrastructure, the City must ensure that engineering decisions are informed by best-in-class expertise, risk-aware design, and long-term asset performance—not solely first-cost considerations. These services directly support that obligation by strengthening technical rigor, improving decision quality, and ensuring infrastructure investments are optimized over the full lifecycle of the assets.
Staff is recommending award to two firms as a deliberate and prudent approach to managing the Electric Utility’s evolving engineering demands. The scope, scale, and timing of current and anticipated work—ranging from system planning and design to emergent reliability-driven projects—necessitate flexibility, responsiveness, and access to a broad range of technical expertise. Establishing agreements with two qualified firms provides the City with the ability to:
• Effectively manage workload fluctuations by distributing assignments based on project timing, urgency, and resource availability;
• Ensure timeliness of critical work by reducing reliance on a single firm and avoiding bottlenecks that may delay design, permitting, or construction schedules; • Leverage complementary and specialized skill sets, allowing the City to match specific project needs with the firm best suited to perform the work; and • Maintain continuity of service and operational resilience, mitigating risk associated with over-reliance on a single provider.
This dual-firm approach reflects prudent utility management practices and aligns with industry norms for organizations of similar scale, particularly where maintaining system reliability, executing capital programs, and responding to unplanned or emergent conditions are essential to safe and continuous operations.
Auriga Corporation’s fee proposal is structured as a fully burdened, time-and-materials rate schedule, establishing hourly billing rates by labor classification for as-needed Engineering System Support services. The schedule includes rates for Auriga personnel as well as specialized subconsultants utilized for targeted technical expertise. Fully burdened hourly rates range from $65.56 to $307.80, depending on the assigned role and level of specialization.
Similarly, Asplundh Engineering Services, LLC’s proposal is based on a fully burdened, time- and-materials rate structure with hourly rates defined by labor classification. The schedule encompasses engineering, design, drafting, project management, and administrative services.
Fully burdened hourly rates range from $70 to $195, depending on the classification and scope of work.
Following is the integrated ranking in descending order of each respondent:
Combined Average Score as of 11-3-25
RFP Consultant Scores Ranking
Auriga Corp 91 1
Asplundh 86 2
ICF 82 3
EPI 81 4
Cornerstone 80 5
Electric Power Engineers 75 6
Under both agreements, the City will be invoiced solely for authorized services performed and actual hours expended at the applicable classification rates, subject to the established not-to- exceed contract amounts. This structure ensures cost control, transparency, and alignment with actual workload demands, while preserving flexibility to scale services in response to operational
needs.
Each agreement will also include standard provisions allowing the City to terminate the contract, in whole or in part, for convenience at any time, subject to applicable notice requirements and payment for authorized work completed through the effective date of termination.
Importantly, this approach represents a cost-effective and risk-mitigated alternative to maintaining equivalent in-house specialized engineering capacity or relying on higher-cost, time- constrained consulting procurement during emergent conditions. By pre-establishing competitively procured, highly qualified firms, the City enhances its ability to deliver projects efficiently, maintain system reliability, and do so without creating upward pressure on electric rates, consistent with the adopted cost-of-service framework and prudent fiscal management.
Fiscal Impacts:
Funds to cover the remainder of FY 2025/26 are available in the Electric Utility Fund Engineering Division Professional Services Account No. 520-8000-8002-2350-0923-0000, and sufficient appropriations are included in the requested FY 2026/27 budget for Electric Utility Engineering Consulting Services.
Alternatives:
Provide alternative direction to staff.
Attachments:
None
Item: 10.
Staff Report
Meeting Date: April 7, 2026
To: City Council
From: Bill Smith, City Manager
Prepared By: Deb Farrar, Director
Item Name: Funding - Early Childhood Education Program - Approve and Adopt Resolution Accepting Additional Funding through Cost of Care Plus, for the Early Childhood Education Program in the Community Services Department, Resolution No. R-23-26.
Recommended Action:
Staff recommends that the City Council take the following action:
Adopt Resolution R-23-26 for Early Care and Education Division Additional Funding ~ Cost of Care Plus
Background:
The City of Colton, Early Care and Education Division has two main components, the School Age Program (SAP) and the State Preschool Program (SPP). The SAP is funded by the California Department of Social Services (CDSS), and SPP is funded by the California Department of Education (CDE). The SAP is for children in grades TK through 6th grade, using the CDSS Contract to provide before- and after-school, and all-day care on CJUSD closure days.
The SPP is for younger children, ages 2 to 5. The SPP operates 180 days a year, part-time, with the desired result of preparing young children for elementary school, both in the classroom and the playground. As Executive Director of the Program, the City Manager is the designated authority to sign the State contract.
In Fiscal Year (FY) 2023-2024, through State Legislation and the Child Care Providers United (CCPU) Union, an agreement was made to supplement rates paid to Family Home Child Care Providers through Cost of Care Plus payments. Before signing the Agreement, the State of California chose to include State Contractors that hold California Department of Education and California Department of Social Services Center-Based contracts, the same supplemental Cost of Care Plus payments.
Thus, the Early Care and Education (ECE) Division of the Community Services Department has been receiving quarterly Cost of Care Plus (CoC+) since January 2024. Payments are based on the number of children enrolled in the program, at a rate of 174 per child per month, and are paid quarterly.
Issues/Analysis:
In FY 2025/26, the ECE Division received six separate checks: three from CDE and three from CDSS, each paid in advance of each quarter. There are no current plans to expend these CoC+ funds, and there is currently no “expend by” date either. Payments will continue for the current year and are expected to continue until June 2028. At this time, the City Council is also requested to authorize pass-through privileges to receive future payments.
Fiscal Impacts:
Adoption of Resolution R-23-26 amends the Fiscal Year 2025-26 adopted budget to increase revenues and appropriations in Fund 206 to accept the award in the following accounts:
• Increase revenues in CDE Cost of Care Plus Revenue Account Number 206-5774-001 CDE Cost of Care Plus by $237,844.
• Increase revenues in CDSS Cost of Care Plus Revenue Account Number 206-5774-002 CDSS Cost of Care Plus by $158,688.
• Increase appropriations in Early Care & Education Fund Operating Supplies Account Number 206-7200-7210-2301-0000-001 by $87,844.
• Increase appropriations in Early Care & Education Fund Account Number Instruction Materials Account Number 206-7200-7210-2304-0000-001 by $150,000. • Increase appropriations in Early Care & Education Fund Operating Supplies Account Number 206-7200-7210-2301-0000-002 by $58,688.
• Increase appropriations in Early Care & Education Fund Account Number Instruction Materials Account Number 206-7200-7210-2304-0000-002 by $100,000.
Alternatives:
Provide an alternative direction to the staff.
Attachments:
1. R-23-26 ECE Additional Funding ~ CoC+
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RESOLUTION NO. R-23-26
A RESOLUTION OF THE CITY COUNCIL ALLOWING THE RECEIPT OF FUNDS
TO THE EARLY CARE AND EDUCATION DIVISION OF THE COMMUNITY
SERVICES DEPARTMENT VIA THE CALIFORNIA DEPARTMENT OF
EDUCATION AND SOCIAL SERVICES.
WHEREAS, the City of Colton, Early Childhood Education (ECE) Division of the Community Services Department (CSD) holds one (1) California Department of Education (CDE) Contract, and one (1) California Department of Social Services (CDSS) Contract, thus considered a CDE and CDSS Funded Agency.
WHEREAS, in 2023, State Legislation and the Child Care Providers United (CCPU) Union entered into an agreement to supplement the rates paid to Family Home Child Care Providers through Cost of Care Plus payments,
WHEREAS, prior to signing the Agreement, the State of California chose to include State Contractors that hold California Department of Education and California Department of Social Services Center-based contracts, the same supplemental Cost of Care Plus payments, WHEREAS, the Early Care and Education (ECE) Division of the Community Services Department of Education has been receiving quarterly Cost of Care Plus (CoC+) since January of 2024. Payments are based on the number of children enrolled in the program, at a rate of 174 per child per month, and are paid quarterly,
WHEREAS, the ECE Division received separate checks from CDE and CDSS paid in advance of each quarter CDSS.
NOW, THEREFORE, the City Council of the City of Colton does hereby resolve as follows:
Section 1: The staff report accompanying this resolution is found to be true, adopted as findings, and incorporated into this resolution.
Section 2: City approves the receipt of the current CoC+ payments and future CoC+ payments
Section 3: To account for this funding, budget allocations for Fiscal Year 2025-2026 are hereby as follows:
Revenue accounts:
▪ Increase CDE Cost of Care Plus Account Number 206-5774-001 by $237,844. ▪ Increase CDSS Cost of Care Plus Account Number 206-5774-002 by $158,688.
Expenditure accounts:
▪ Increase Early Care & Education Fund Operating Supplies Account Number 206-7200-7210-2301-0000-001 by $87,844.
▪ Increase Early Care & Education Fund Account Number Instruction Materials Account Number 206-7200-7210-2304-0000-001 by $150,000.
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▪ Increase Early Care & Education Fund Operating Supplies Account Number 206-7200-7210-2301-0000-002 by $58,688.
▪ Increase Early Care & Education Fund Account Number Instruction Materials Account Number 206-7200-7210-2304-0000-002 by $100,000.
PASSED, APPROVED AND ADOPTED this 7th day of April 2026.
________________________________________
FRANK J, NAVARRO, Mayor
ATTEST:
ISAAC T. SUCHIL, City Clerk
Item: 11.
Staff Report
Meeting Date: April 7, 2026
To: City Council
From: Bill Smith, City Manager
Prepared By: Dawn Miller, Assistant to the City Manager Item Name: Manual of Procedure Update - Approve a Resolution Adopting Updates to the City Council Manual of Procedure, Resolution No. R-28-26.
Recommended Action:
It is recommended that the City Council approve the revised City Council Manual of Procedure (MOP).
Background:
The City Council conducts its meetings in accordance with its Manual of Procedure (MOP) and applicable State law. These procedures ensure the effective, transparent, and lawful conduct of City Council meetings. The MOP is in alignment with the Ralph M. Brown Act (Government Code Section 54950 et seq.), which guarantees that meetings of local legislative bodies, including City Councils, are open to the public and conducted with proper notice.
The City Council originally adopted the MOP, in its entirety, on December 16, 1986, pursuant to Resolution R-185-86. Over time, the City Council has made minor modifications to the MOP to maintain its effectiveness and ensure compliance with changes in State law and/or procedural "best practices." These amendments have been formally adopted through a series of resolutions.
The most recent update to the MOP was adopted on November 2, 2021.
Issues/Analysis:
The City Council is committed to ensuring that its meetings are conducted with transparency, accountability, and in full compliance with applicable laws. The MOP outlines the procedures for Council meetings, including the conduct of business, public participation, motions, voting procedures, and other essential protocols. Additionally, the MOP incorporates guidance from the Ralph M. Brown Act, which is central to the operation of local government meetings.
The proposed changes to the MOP are mostly "clean-up" in nature, adding language pertaining to recent/current legal information, adjustments to reflect the contraction of City Council from 7 members to 5 members, and minor corrections related to cross-references, typographical errors, etc.
These proposed changes were circulated to all City Councilmembers, on multiple occasions, for input. All received input has been incorporated into this final draft. The City Council has a long-standing practice of updating its Manual of Procedure to maintain consistency with legal requirements and procedural improvements. The City Council should continue to adhere to the MOP in conducting its meetings to ensure effective governance.
Fiscal Impacts:
There is no financial impact as a result of this proposed action.
Alternatives:
City Council may provide alternative direction to staff, as desired.
Attachments:
1. Resolution R-28-26
2. City Council MOP - Final Draft
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RESOLUTION NO. R-28-26
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLTON,
RE-ADOPTING A REVISED CITY COUNCIL MANUAL OF PROCEDURE AND
RESCINDING ALL PRIOR RESOLUTIONS AND APPROVED RELATED THERETO
WHEREAS, the City Council conducts its meetings in accordance with its Manual of Procedure (“MOP”) and applicable state law, including, but not limited to, the Ralph M. Brown Act (Government Code Section 54950 et seq.); and
WHEREAS, the City Council adopted the MOP in its entirety on December 16, 1986, pursuant to Resolution No. R-185-86; and
WHEREAS, the City Council subsequently adopted minor amendments to the MOP, pursuant to duly adopted resolutions, such as R-98-96, R-29-95, R-150-07, R-03-15, and R-41-18: and
WHEREAS, the City Council last updated and adopted the MOP in its entirety on November 2, 2021.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF COLTON DOES HEREBY RESOLVE AS FOLLOWS:
Section 1. The MOP dated April 7, 2026, and adopted on the same date is hereby re- adopted by this Resolution.
Section 2. All prior resolutions and actions adopted or taken with respect to the MOP, including, but not limited to, Resolutions R-185-86, R-98-96, R-29-95, R-150-07, R-03-15, R-41- 18 are hereby rescinded.
Section 3. The City Clerk shall certify to the adoption of this Resolution.
Section 4. This Resolution shall become effective immediately upon date passed, approved and adopted.
PASSED, APPROVED, AND ADOPTED this 7th day of April, 2026.
Frank J. Navarro
Mayor
ATTEST:
Isaac T. Suchil
City Clerk
Manual
of Procedure
CITY COUNCIL MEETINGS
City Council approved: DATE TBD
CITY COUNCIL MEETINGS
MANUAL OF PROCEDURE
CITY OF COLTON
City Council Approved: 11/2/21
TABLE OF CONTENTS
Page
A. OVERVIEW/PRINCIPLES/STANDARDS ..........................................................................................1 A-1 CITY COUNCIL ACTS AS A BODY .........................................................................................1 A-2 POLICY ROLE OF CITY COUNCIL AND COUNCILMEMBERS ..........................................1 B. MEETINGS ..............................................................................................................................................1 B-1 REGULAR MEETINGS ...............................................................................................................1 B-2 ADJOURNED MEETINGS ..........................................................................................................21 B-3 SPECIAL MEETINGS .................................................................................................................21 B-4 EMERGENCY MEETINGS .........................................................................................................2 B-5 MEETINGS TO BE PUBLIC .......................................................................................................2 B-6 CLOSED SESSIONS ....................................................................................................................2 B-7 ATTENDANCE ............................................................................................................................32 B-8 QUORUM ..........................................................................................................................................32 B-9 TIME LIMITS FOR CITY COUNCIL MEETINGS; MANDATORY TIME OF ADJOURNMENT .........................................................................................................................3 C. AGENDA ..................................................................................................................................................4 C-1 AGENDA PREPARATION – AUTHORITY TO PLACE ITEMS ON AGENDA ....................4 C-2 AGENDA PREPARATION – PROCESS AND DISTRIBUTION TO CITY COUNCIL ..........4 C-3 AGENDAS FOR SPECIAL OR EMERGENCY MEETINGS ....................................................4 C-4 AGENDA POSTING AND MAILING TO PUBLIC ...................................................................5 C-5 AGENDA ITEMS AND ACTIONS .............................................................................................5 C-6 AGENDA CONTENTS ................................................................................................................6 C-7 PUBLIC COMMENT OPPORTUNITY ON AGENDA ..............................................................76 C-8 ORDER OF BUSINESS ...............................................................................................................7 C-9 REVIEW OF AGENDA MATERIALS .......................................................................................98 D. PRESIDING OFFICER ...........................................................................................................................9 D-1 MAYOR TO PRESIDE ................................................................................................................9 D-2 POWERS & DUTIES OF PRESIDING OFFICER ......................................................................9
TABLE OF CONTENTS
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E. ADDRESSING THE COUNCIL ......................................................................................................... 10 E-1 WRITTEN CORRESPONDENCE.............................................................................................. 10 E-2 RIGHT TO ADDRESS COUNCIL AT MEETING .................................................................... 10 E-3 MANNER OF ADDRESSING COUNCIL ................................................................................. 10 E-4 TIME LIMITATION ................................................................................................................... 11 E-5 IMPROPER REMARKS ............................................................................................................. 11 E-6 CHALLENGING UNLAWFUL ACTIONS; LITIGATION...................................................... 132 F. DEBATE AND DECORUM ................................................................................................................ 13 F-1 GETTING THE FLOOR ............................................................................................................. 13 F-2 QUESTIONS TO STAFF ............................................................................................................ 13 F-3 INTERRUPTIONS ...................................................................................................................... 13 F-4 POINTS OF ORDER ................................................................................................................... 13 F-5 POINT OF PERSONAL PRIVILEGE......................................................................................... 134 F-6 REMARKS OF COUNCILMEMBERS AND SYNOPSIS OF DEBATE.................................. 14 F-7 DECORUM AND ORDER - COUNCIL AND CITY STAFF.................................................... 14 F-8 DECORUM AND ORDER - MEMBERS OF THE PUBLIC..................................................... 14 F-9 ENFORCEMENT OF DECORUM ............................................................................................. 15 F-10 FAILURE TO OBSERVE RULES OF ORDER ......................................................................... 15 G. MOTIONS ............................................................................................................................................. 16 G-1 PRESENTATION OF MOTIONS............................................................................................... 16 G-2 PROCESSING OF MOTIONS .................................................................................................... 16 G-3 PRECEDENCE OF MOTIONS................................................................................................... 16 G-4 PARTICULAR MOTIONS, PURPOSE AND CRITERIA ......................................................... 17 H. VOTING ................................................................................................................................................ 19 H-1 VOTING PROCEDURE.............................................................................................................. 19 H-2 CHANGE OF VOTE.................................................................................................................... 19 H-3 FAILURE TO VOTE................................................................................................................... 19 H-4 CONFLICT OF INTEREST ........................................................................................................ 19 H-5 RECONSIDERATION AND RESCISSION OF PRIOR ACTION ............................................ 20
TABLE OF CONTENTS
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I. MINUTES.............................................................................................................................................. 20 I-1 PREPARATION OF MINUTES ............................................................................................... 20 I-2 MINUTES OF HEARINGS....................................................................................................... 210 I-3 READING OF MINUTES......................................................................................................... 210 J. ORDINANCES, RESOLUTIONS AND CONTRACTS...................................................................... 21 J-1 PREPARATION OF ORDINANCES, RESOLUTIONS AND CONTRACTS........................ 21 J-2 PRIOR APPROVAL BY ADMINISTRATIVE STAFF ........................................................... 21 J-3 ENACTMENT OF ORDINANCES .......................................................................................... 21 J-4 ADOPTION OF RESOLUTIONS............................................................................................. 22 K. HEARINGS ............................................................................................................................................. 23 K-1 APPLICATION AND DEFINITION ........................................................................................ 23 K-2 RIGHTS OF INTERESTED PERSONS ................................................................................... 23 K-3 PRESENTATION OF EVIDENCE........................................................................................... 23 K-4 EVIDENCE OUTSIDE THE HEARING .................................................................................. 24 K-5 CONTINUANCES .................................................................................................................... 24 K-6 DECISION................................................................................................................................. 24 K-7 RECORD OF HEARING .......................................................................................................... 25 L. GENERAL GUIDELINES ..................................................................................................................... 256 L-1 CITY COUNCIL OFFICE – ADMINISTRATIVE SUPPORT................................................ 256 L-2 SERVICE REQUESTS.............................................................................................................. 26 L-3 REQUESTS FOR STAFF ASSISTANCE ................................................................................ 26 L-4 INFLUENCE ON STAFF.......................................................................................................... 26 L-5 IMPOSITION ON STAFF RESOURCES................................................................................. 26 L-6 USE OF SOCIAL MEDIA…………………………………………………………………….. 26
L-7 POLICY-RELATED AND FUNDING REQUESTS…………………………………………. 27 L-8 DISCLOSURE OF INFORMATION…………………………………………………………. 27 L-9 COMPLAINTS AND POLICY VIOLATIONS BY COUNCILMEMBERS………………… 27
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A. OVERVIEW/PRINCIPLES/STANDARDS
A-1 CITY COUNCIL ACTS AS A BODY
One of the fundamental tenets of city governance is recognizing that the City Council acts as a body.
No individual Councilmember has extraordinary powers beyond those of other members. Although the Mayor and the Mayor Pro Tempore (“Pro Tem”) have additional ceremonial, parliamentary and administrative responsibilities, with respect to voting and the establishment of policy, all members are equal.
A-2 POLICY ROLE OF CITY COUNCIL & COUNCILMEMBERS
Councilmembers should respect and adhere to the Council-Manager structure of the Colton City government. In this structure, the City Council determines the policies of the City with the advice, information and analysis provided by the public, boards and commissions, and City staff.
Councilmembers shall not interfere with the administrative functions of the City or the professional duties of City staff, nor shall they impair the ability of staff to implement Council policy decisions.
B. M E E T I N G S
B-1 REGULAR MEETINGS
The City Council shall hold regular meetings on the first and third Tuesday of each month. The closed session portion of the meeting shall begin at five p.m. in the Council Chambers of City Hall (650 North La Cadena Drive, Colton) or at such other place within the City limits to which said meeting may be adjourned, and then recess to a secure location. The open session portion of the meeting shall begin at six p.m. in the Council Chambers or at such other place within the City limits to which said meeting may be adjourned. If by reason of fire, flood, or other emergency, it is unsafe to meet in the City Hall, the meetings may be held for the duration of the emergency at such other place designated by the Mayor or, in the absence of the Mayor, by the Mayor Pro Tempore, or in the absence of the Mayor Pro Tempore, by a majority of the entire City Council. When the day for any regular meeting falls on a legal holiday, no meeting shall be held, but a regular meeting shall be held at the same hour on the following business day.
B-2 ADJOURNED MEETINGS
Any meetings may be adjourned to a certain time, place and date in accordance with Section 54955 and any other applicable sections of the Ralph M. Brown Act (Government Code Section 54950 et seq.) ("Brown Act"), but not beyond the next regular meeting. Once adjourned, the meeting may not be reconvened.
B-3 SPECIAL MEETINGS
Special meetings may be called at any time by the Mayor, or by a majority of the entire City Council, in accordance with Section 54956 and any other applicable sections of the Brown Act.
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B-4 EMERGENCY MEETINGS
Emergency meetings may be called only in those rare instances authorized in accordance with Section 54956.5 and any other applicable sections of the Brown Act.
B-5 MEETINGS TO BE PUBLIC
All regular, adjourned, special, emergency and any other meetings of the City Council shall be held in public, except as provided for in accordance with the Brown Act.
B-6 CLOSED SESSIONS
The City Council may hold closed sessions from which the public may be excluded for the consideration of certain subjects in accordance with any applicable sections of the Brown Act and any other applicable state or federal laws, rules or regulations. For instance, see Sections 54956.7, 54956.8, 54956.9, 54956.95, 54957, 54957.6, 54957.8, 54956.86, 54956.96 and 54956.75 of the Brown Act, as well as Government Code Sections 37606 and 37624.3 and Health and Safety Code Sections 1461, 32106 and 32155. For instance, see Sections 54956.7, 54956.75, 54956.8, 54956.86, 54956.9, 54956.95, 54956.96, 54957, 54957.6, and 54957.8 of the Brown Act, as well as Government Code Sections 37606 and 37624.3 and Health and Safety Code Sections 1461, 32106 and 32155. The City Council and its legal counsel shall comply with all procedural requirements prior to holding any closed session, as prescribed in Sections 54954.5, 54957.7 and any other applicable sections of the Brown Act. The City Council shall comply with all requirements relating to the public report of any action taken in closed session, as provided in Section 54957.1 and any other applicable sections of the Brown Act. For applicable Closed Session agenda items, confidential staff reports will be made available electronically to Councilmembers for review prior to the meeting, and hard copies of such reports will be made available at the meeting. Hard copy staff reports, and any supporting material, will be collected at the conclusion of consideration of the applicable agenda item. Electronic versions of Closed Session staff reports should not be printed in hard copy by Councilmembers.
B-7 ATTENDANCE
Councilmembers are expected to attend all meetings of the City Council. In accordance with Government Code Section 36513, if a Councilmember is absent without notice from all regular City Council meetings for sixty (60) consecutive days from the last regular meeting they attend, their office becomes vacant and shall be filled as any other vacancy. Councilmembers shall notify the Mayor, City Manager and/or City Clerk if they are going to be absent from a regular meeting, and the Presiding Officer shall note such excused absence for the record.
B - 8 Q U O R U M
Four Three members of the Council shall constitute a quorum and shall be sufficient to transact regular business. If less than four three Councilmembers appear at a meeting, the meeting shall be adjourned as provided in Section 54955 and any other applicable sections of the Brown Act. If all members are absent, the City Clerk may adjourn the meeting in such situation.
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B-9 TIME LIMITS FOR CITY COUNCIL MEETINGS; MANDATORY TIME OF ADJOURNMENT No City Council meeting shall extend beyond 10:30 p.m. unless the City Council, by a two-thirds vote of all Councilmembers present, elects to extend the meeting to complete a matter under discussion at the mandatory time for adjournment. No new matter shall begin after 10:30 p.m. without the unanimous consent of the Councilmembers present. Any matter on the agenda not addressed prior to the mandatory time of adjournment shall be carried over to the next regular, adjourned or special meeting of the City Council. As discussed in Section B-3 and B-4 belowabove, the City Council may establish similar time limits for special and emergency meetings, even if they begin earlier in the day than regular meetings.
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C. A G E N D A
C-1 AGENDA PREPARATION – AUTHORITY TO PLACE ITEMS ON AGENDA An agenda shall be prepared for each regular meeting in accordance with Section 54954 and any other applicable sections of the Brown Act. The agenda shall contain the specific items of business to be transacted and the order thereof. Items of business to be heard in public may be placed on the agenda by any Councilmember, the City Manager, the City Attorney or the City Clerk. The City Clerk prefers that sSuch requests shall be submitted on or before 4:00 p.m. on the Tuesday one weektwenty-one days prior to the regular meeting. Items of business to be heard in closed session may be submitted by any two (2) Councilmembers, the City Manager or the City Clerk to the City Attorney or Human Resources and Risk Manager Director Risk Manager for review for compliance with the provisions of the Brown Act, and the City Attorney or Human Resources and Risk Manager Director Risk Manager shall place such items that comply with those provisions on the closed session agenda. Notwithstanding the foregoing, however, items of business relating to personnel matters involving performance review or discipline, dismissal or release of specific City employees shall only be placed on the closed session agenda at the direction of the City Manager or upon the request of three Councilmembers through the City Clerk.
C-2 AGENDA PREPARATION – PROCESS AND DISTRIBUTION TO CITY COUNCIL Agenda items shall be delivered to the City Clerk pursuant to Administrative Policy 1.01.010. The Clerk shall thereafter prepare the agenda under the direction of the City Manager. Each item of business to be transacted or discussed on the agenda shall be adequately described in accordance with the Brown Act, and shall contain the specific action requested to be taken by the Council. The agenda, together with all reports pertaining thereto, shall be delivered provided to the Councilmembers at 4:00 p.m., or soon thereafter, on the Thursday preceding the regular meeting. Each Councilmember may direct the method by which the agenda packet shall be delivered provided to them. The agenda shall be made available to the public as soon as practicable, but no later than the time provided for in Section 54954.2 and any other applicable sections of the Brown Act (currently, 72 hours before the regular meeting). No matters other than those listed on the posted agenda shall be acted upon by the Council, except as provided for in Section BC-5 below and applicable sections of the Brown Act.
C-3 AGENDAS FOR SPECIAL OR EMERGENCY MEETINGS
An agenda or notice shall be prepared for each special or emergency meeting in accordance with Sections 54956, 54956.5 and any other applicable sections of the Brown Act. Each Special or Emergency meeting agenda shall contain, if necessary, a discussion item allowing the City Council to establish a mandatory time for adjournment or time after which time limits similar to those provided for in Section AB-9 above shall apply.
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C-4 AGENDA POSTING AND MAILING TO PUBLIC
Meeting agendas and/or notices shall be posted on the City website, in the glass enclosed Bulletin Board at City Hall, 650 North La Cadena Drive, Colton, as well as any other location designated by the City Council, City Manager or City Clerk. The City Clerk, or his/her designee, shall accomplish the City Council agenda posting requirements. The City Clerk shall maintain a file of certificates certifying to the agenda posting. Upon payment of the applicable fee, any person may make a written request for and receive a copy of the agenda or a copy of the agenda packet by mail in accordance with Section 54954.1 and any other applicable sections of the Brown Act.
C-5 AGENDA ITEMS AND ACTIONS
(A) CALL TO ORDER; ROLL; ORDER OF ACTION. At the time set for each regular meeting, the Council, City Clerk, City Manager, City Attorney and such department heads as have been requested by the City Manager to be present, shall take their regular places in the meeting room.
The Presiding Officer shall call the meeting to order, note for the City Clerk those will take roll call of the Councilmembers who are present and note those that are absent, and the business of the Council shall be taken up for consideration and disposition in the order set forth in Section BC-8. However, items may be taken out of order with the consent of the majority of the Council.
(B) ITEMS ON AGENDA. No matters other than those listed on the posted agenda shall be discussed or acted upon by the Council, except as provided for in Sections 54954.2, 54956.5 and any other applicable sections of the Brown Act.
(C) CERTAIN BRIEF COMMENTS & DIRECTIONS ALLOWED. Councilmembers and/or staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights under Sections 54954.2, 54954.3 and other applicable sections of the Brown Act. In addition, on their own initiative, or in response to questions posed by members of the public, Councilmembers and/or staff may ask a question for clarification, provide a reference to Staff or other resources for factual information, or request Staff to report back to the Council at a subsequent meeting concerning any matter, in accordance with Sections 54954.2, 54954.3 and other applicable sections of the Brown Act. Furthermore, a Councilmember, or the entire Council, may take action to direct staff to place a matter of business on a future agenda.
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C-6 AGENDA CONTENTS
(A) BRIEF GENERAL DESCRIPTIONS. The agenda must contain a brief general description of business to be transacted or discussed at the meeting, as well as the time and location of the meeting, in accordance with Section 54954.2 and any other applicable sections of the Brown Act. (B) CLOSED SESSION DESCRIPTIONS. Closed Session Agenda Items must be described in accordance with Section 54954.5 and any other applicable sections of the Brown Act. (C) AVAILABILITY OF STAFF REPORTS. The agenda shall contain a statement that copies of staff reports or other written documents relating to each item referred to on the Agenda are on file in the office of the City Clerk and are available for public inspection (including via the City's website). (D) QUESTIONS FOR CITY CLERK. The agenda shall also contain a notation that any person having questions concerning any item on the agenda may call the City Clerk to inquire about the nature of the items described on the agenda. The City Clerk shall direct inquiries to the appropriate office.
C-7 PUBLIC COMMENT OPPORTUNITY ON AGENDA
Every agenda for regular meetings must provide an opportunity for members of the public to directly address the Council on items not on the agenda that are within the subject matter jurisdiction of the City, any item of interest to the public, before or during the time the Council takes up the item for consideration (if it is on the agenda), as provided for in Section 54954.3 and any other applicable section of the Brown Act. For items on closed session, members of the public must be present to address the Council before the Council recesses into closed session. (See also Section ED (Addressing the Council) below.)
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C-8 ORDER OF BUSINESS
The Agenda shall be conducted in the order and manner set forth below:
(A) CLOSED SESSION. If needed, the Council will discuss items in closed session as provided for in the Brown Act.
(B) INVOCATION AND FLAG SALUTE. The Presiding Officer shall provide for an invocation whenever practicable. Following the invocation, if any, the Presiding Officer shall also provide someone to lead the group in the Pledge of Allegiance.
(C) ROLL CALL. The Ccity Cclerk shall call the roll of the Ccouncilmembers or note those who are present, and the names of those present shall be entered in the minutes. (D) CEREMONIAL MATTERS. Presentations, Awards and Proclamations, which cannot be given as part of the Consent Calendar, are given under this item. No more than three (3) such items shall be included on an agenda, and all items shall be submitted to the City Clerk’s Office not less than two (2) weeks prior to the meeting date. Exceptions must be approved by three (3) Council Members.
Business recognition, to be presented by a Council Member, shall occur not more than once per month. All Ceremonial Matters shall be limited to five (5) minutes in duration. All presentations which require audio/visual equipment should be submitted to the City Manager’s Office at least 24 hours prior to the meeting.
(E) MAYOR AND CITY COUNCIL ITEMS. The Council shall consider all items of individual Councilmembers regarding any proper matter of municipal business appearing on the posted Agenda, including, but not limited to: gift disclosures pursuant to CMC Section 2.04.030, oral reports required by AB 1234 (GC Section 53232.3) and appointments to City, regional or other boards, committees and commissions. Any such actions shall be subject to the provisions of Sections B-1 through B-3 above.
(F) CITY TREASURER’S REPORTS. The City Treasurer shall present any reports he may have, which shall be considered for receipt and filing by the City Council. At the discretion of the City Council and/or City Treasurer, this report may be included as part of the Consent Calendar. (G) PUBLIC HEARINGS. The Council shall conduct all public hearings in accordance with Section K below.
(H) BUSINESS ITEMS. The Council shall consider business items or items continued from prior meetings which are not subject to a public hearing.
(I) PUBLIC COMMENT. The Presiding Officer shall announce commencement of the Public Comment period. Public Comment shall be subject to Sections E-21 through E-5.
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(J) CONSENT CALENDAR. All matters listed under the Consent Calendar are considered by the 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 Council votes on the motion, unless councilmembers, or staff or the public request specific items be discussed and/or removed for separate discussions or action.
Approval of Minutes and Warrants will routinely appear on the Consent Calendar. (K) MAYOR AND COUNCIL ORAL REPORTS AND COMMENTS. A time of three (3)five (5) minutes for each Councilmember to give brief oral reports on items of interest to him or her, including events he or she attended or items he or she wishes to have addressed in the future. No discussion or action shall be taken on any such item, unless they are specifically listed for such purpose.
(E) ADJOURNMENT. The meeting shall be adjourned after a motion to adjourn has been made and carried.
(L) ADJOURNMENT. By the Presiding Officer after all business has been considered in accordance with this Manual of Procedure.
C-9 REVIEW OF AGENDA MATERIALS
(A) REVIEW PRIOR TO MEETINGS. City Councilmembers shall read and/or otherwise familiarize themselves with each agenda and supporting documentation prior to the meeting. (B) PRIOR CLARIFICATION OF AGENDA MATERIALS. City Councilmembers should request answers to questions on agenda items from the City Manager, City Attorney, City Clerk, or Department Directors prior to the meeting at which they are to be discussed. This allows the presiding officer to move the agenda forward in a timely and efficient manner. (C) AVOID UNFAIR SURPRISE. City Councilmembers should advise the City Manager prior to the meeting of issues or questions that they intend to bring up during the meeting. This refers to issues or questions that City staff would not normally anticipate or have researched prior to the meeting.
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D. PRESIDING OFFICER
D-1 MAYOR TO PRESIDE
The Mayor shall be the Presiding Officer at all meetings of the City Council. In the absence of the Mayor, the Mayor Pro-Tempore shall preside. In the absence of both the Mayor and Mayor Pro Tempore, the City Clerk shall call the Council to order, whereupon a temporary Presiding Officer shall be elected by the Councilmembers present to serve until the arrival of the Mayor or Mayor Pro Tempore or until adjournment.
D-2 POWERS & DUTIES OF PRESIDING OFFICER
(A) PARTICIPATION. The Presiding Officer may move, second, debate, and vote. The Presiding Officer shall not be deprived of any of the rights and privileges of a Council member by reason of acting as Presiding Officer.
(B) RESTATING OF THE QUESTION. The Presiding Officer, or such member of the City Staff as he or she may designate, may verbally restate each motion immediately prior to calling for the vote. Following the vote, the City Clerk shall announce whether the question carried or was defeated. The Presiding Officer, in his or her discretion, may publicly explain the effect of a vote for the audience, or may direct a member of the City staff to do so, before proceeding to the next item of business.
(C) MAINTAINING ORDER AND DECORUM. The Presiding Officer shall be responsible for maintaining order and decorum at all meetings. The Presiding Officer shall also decide all questions of order subject, however, to an appeal to the Council. (D) SIGNING OF DOCUMENTS. The Presiding Officer shall sign all ordinances, resolutions, and other documents requiring the Presiding Officer’s signature adopted in his or her presence, unless he or she is unavailable. If the Presiding Officer is unavailable, the alternate Presiding Officer may sign such documents.
(E) APPOINTMENTS OF COMMITTEES. The City Council may appoint such ad-hoc committees of Councilmembers, City staff and private citizens, or a combination thereof, as the City Council deems necessary and expedient to assist and advise the Council in its work.
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E. ADDRESSING THE COUNCIL
E-1 WRITTEN CORRESPONDENCE
(A) CITY MANAGER ATTENTION. The City Manager is authorized to receive and open all mail addressed to the City Council, and he shall give it immediate attention in order that all administrative business not necessarily requiring Council action may be addressed between Council meetings. All communications and any action taken pursuant thereto shall be reported to the City Council. (B) REQUIRED COUNCIL ACTION. Any communications requiring Council action shall be placed upon the agenda for the next regular meeting, together with a report and recommendation by the City Staff. All correspondence shall be answered or acknowledged as soon as possible.
E-2 RIGHT TO ADDRESS COUNCIL AT MEETING
(A) AGENDA & NON-AGENDA ITEMS. Subject to the provisions of Sections D-3, D-4 and D- 5E-3, E-4, and E-5, any interested member of the public shall have the right to address the Council on items within the subject matter jurisdiction of the Council, in accordance with Section 54954.3 and any other applicable sections of the Brown Act. If an item is on the agenda, the person shall have the right to address the Council before the Council's consideration of that item. For items on closed session, members of the public must be present to address the Council before the Council recesses into closed session. For items not on the agenda, the person shall have the right to address the Council only during the "Public Comment" portion of the agenda.
(B) SPEAKER CARDS. Persons wishing to address the Council are required requested to fill out a speaker card and submit it to the City Clerk. Speaker cards shall be submitted to the City Clerk prior to the beginning of the Public Comment period. City Council may designate a specific time, by which Speaker cards must be submitted. The City Clerk shall make speaker cards available to the public in the meeting room. For agenda items, the speaker cards may include a request to indicate whether the speaker is in favor, opposition or neither. The City Clerk shall assure that there is a sufficient amount of speaker cards available in the Council Chambers and that all of them are the same color for uniformity.
(C) EMAIL COMMUNICATION ON AN AGENDA ITEM. Members of the public may also email communications to the City Council at any time prior to a Council meeting, and all Councilmembers will make every effort to read and consider such communications prior to consideration of the specific agenda item. However, in order to ensure receipt by Councilmembers and allow for thoughtful consideration of the comments, members of the public are encouraged to submit email communications no later than 24 hours prior to the start of the meeting.
E-3 MANNER OF ADDRESSING COUNCIL,
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Any person desiring to address the Council shall submit a speaker card to the City Clerk. stand and wait to be recognized by the Presiding Officer. The Presiding Officer may determine any fair and reasonable manner in which to recognize speakers. After being recognized by the Presiding Officer, the person should state his or her name and city of residence address for the record, and proceed to address the Council. 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.
E-4 TIME LIMITATION
(A) PUBLIC COMMENT PERIOD. Every person addressing the Council on an item not on the agenda ("Public Comment" period) shall limit his or her address to three (3) minutes, unless further time is granted by the Presiding Officer. If the Presiding Officer determines it to be necessary in the interests of time and the ability of the Council to consider all items on its agenda, the Presiding Officer may do any one or more of the following: (1) require that one or more – in the discretion of the Presiding Officer - spokespersons be chosen to represent the group so as to avoid repetitive comments; (2) choose to limit the overall time for the "Public Comment" period; or (3) reduce the five (5)three (3) minutes given to each individual. Speakers shall not be allowed to yield or give their allotted time to other speakers.
(B) AGENDA ITEMS (INCLUDING PUBLIC HEARINGS). Every person addressing the Council on an item on the agenda shall limit his or her address to three (3) minutes, unless further time is granted by the Presiding Officer; provided, however, that for public hearing agenda items, the applicant shall be provided with at least five (5) minutes and may, in the determination of the Presiding Officer, be asked to respond to or address comments made by members of the public. If the Presiding Officer determines it to be necessary in the interests of time and the ability of the Council to consider all items on its agenda, the Presiding Officer may do any one or more of the following: (1) require that one or more – in the discretion of the Presiding Officer - spokespersons be chosen to represent the group so as to avoid repetitive comments; (2) choose to limit the overall time for public comments or the overall time given to those persons speaking in support and in opposition to the item,; or (3) reduce the three (3) minutes given to each individual. Speakers shall not be allowed to yield or give their allotted time to other speakers.
E-5 IMPROPER REMARKS
Any person making impertinent, slanderous, or profane remarks, or use of profane language or obscene gestures, yelling or similar demonstrations becomes unruly while addressing the Council, shall be called to order by the Presiding Officer in accordance with Section 54957.95. If such conduct continues and willfully disrupts the meeting, the Presiding Officer may, in accordance with Section 54957.9 and any other applicable sections of the Brown Act or other federal or state laws, rules or regulations, order him or her removed from the meeting room or order the room cleared. Public criticism of City policies,
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procedures, programs or services or acts or omission of the Council shall not be deemed improper.
E-6 CHALLENGING UNLAWFUL ACTIONS; LITIGATION
Pursuant to Sections 54960 and 54960.1 of the Brown Act and any other applicable law, any interested person may file litigation to obtain a determination as to whether an action taken by the City Council is null and void as having been taken in violation of the Brown Act.
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F. DEBATE AND DECORUM
Roberts Rules of Order is used by the City Council for guidance only, and shall not be strictly applied.
F-1 GETTING THE FLOOR
Councilmembers wishing to speak shall first address the Presiding Officer and gain recognition by him or her before getting the floor. Councilmembers shall confine themselves to the question under debate.
F-2 QUESTIONS TO STAFF
Councilmembers wishing to question the City Staff may, after recognition by the Presiding Officer, address questions to the City Manager, the City Clerk, or the City Attorney. The City Manager is entitled either to answer the inquiry or direct the question to the appropriate staff member for an answer.
F-3 INTERRUPTIONS
A Councilmember, once recognized, shall not be interrupted when speaking unless called to order by the Presiding Officer, a point of order or personal privilege is raised by another Councilmember, or the speaker chooses to yield to a question by another Councilmember. If a Councilmember, while speaking, is called to order, the member shall cease speaking until the question of order is determined.
If the question is determined to be in order, the Councilmember may continue speaking on the question.
After recognition by the Presiding Officer, City Staff shall hold the floor until completion of their remarks, unless recognition is withdrawn by the Presiding Officer.
F-4 POINTS OF ORDER
The Presiding Officer shall determine all points of order subject to the right of any Councilmember to appeal such determination to the Council. The Presiding Officer may request the opinion of the City Attorney in making such determination. If an appeal is taken, the question shall be: “Shall the decision of the Presiding Officer be sustained?'” The Council’s decision on this matter shall conclusively determine such question of order.
F-5 POINT OF PERSONAL PRIVILEGE
The right of a Councilmember to address the Council on a question of personal privilege shall be limited to cases in which their integrity, character or motives are questioned or where the welfare of the Council is concerned. A Councilmember raising a point of personal privilege may interrupt another Councilmember who has the floor. The Presiding Officer has the power to call the Council- memberCouncilmember out of order.
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F-6 REMARKS OF COUNCILMEMBERS AND SYNOPSIS OF DEBATE
Any Councilmember shall have the right of having an abstract of their statement and/or synopsis of the debate on any subject under consideration by the Council entered in the minutes. Such right shall be exercised by specific direction to the City Clerk at the Council meeting.
F-7 DECORUM AND ORDER - COUNCIL AND CITY STAFF
(A) GENERAL RULES OF DECORUM. While the Council is in session, the Councilmembers and City Staff shall preserve order and decorum. A Councilmember or Staff shall not interrupt, otherwise delay the proceedings or the peace of the Council, orCouncil or disturb any member while speaking. A Councilmember or City Staff shall not refuse to obey the directives of the Presiding Officer. If any Councilmember or City Staff violate these rules of decorum in a manner which willfully disrupts the meeting, the Presiding Officer may, in accordance with Section 54957.9 and any other applicable sections of the Brown Act or other federal or state laws, rules or regulations, direct the Sergeant-at- Arms to clear the room or remove such offenders from the room. (B) E-COMMUNICATION PROHIBITED. Except as specified in subdivision (C), below, Councilmembers shall not use E-Communication at any time during a meeting, including, but not limited to, Open and Closed Sessions of the City Council. The use of E-Communication is prohibited during Council meetings so that Councilmembers may remain attentive to members of the public, staff, or others as they are speaking to the City Council, should take care to prevent the perception of a Brown Act violation, ensure the integrity of quasi-judicial proceedings and to prevent the perception that other unknown parties are influencing Council decisions during the meeting. E-Communication, which includes blogging, is defined as “electronic text, audio or visual communication, and attachments distributed via e-mail, telephonic service, website, instant messaging, text messaging, Twitter, Facebook, Snapchat, Instagram, or comparable services”. Outside of City Council meetings, Councilmembers should not communicate via E-Communications with more than one other member of the City Council on any issue regarding City business. (C) EXCEPTIONS FOR EMERGENCIES. The limitation shall not apply to the receipt of telephone calls or text messages from family members in the event of an urgent family matter. Councilmembers wishing to respond to such a message during the meeting shall do so in a manner that does not disrupt the meeting. Responses to urgent matters may occur during a recess or after having been excused from the meeting by the Presiding Officer.
F-8 DECORUM AND ORDER - MEMBERS OF THE PUBLIC
(A) GENERAL RULES OF DECORUM. Public members attending Council meetings shall observe the same rules of order and decorum applicable to the Council and Staff. The Presiding Officer may, in accordance with Section 54957.9 and any other applicable sections of the Brown Act or other federal or state laws, rules or regulations, direct the Sergeant-at-Arms to
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clear the room or remove any person making impertinent and slanderous remarks that willfully disrupt the meeting or any person who becomes unruly while addressing the Council in such a manner that willfully disrupts the meeting. Such person may be barred from the remainder of the Council meeting.
(B) EXAMPLES OF POTENTIALLY DISRUPTIVE ACTIONS. Unauthorized remarks from the audience, engages in disorderly, disruptive, disturbing, delaying or boisterous conduct, such as, but not limited to, handclapping, stomping of feet, whistling, making noise, stamping of feet, whistles, yells, and similar demonstrations that willfully disrupt the meeting shall not be permitted. The Presiding Officer may, in accordance with Section 54957.9, 54957.95 and any other applicable sections of the Brown Act or other federal or state laws, rules or regulations, direct the Sergeant- at-Arms to clear the room or remove such offenders from the room. Aggravated cases may be prosecuted by appropriate complaint signed by the Presiding Officer or a Councilmember.
F-9 ENFORCEMENT OF DECORUM
The Chief of Police, or such member of the Police Department as he may designate, shall be the Sergeant-at-Arms of the City Council and shall attend meetings at the request of the Presiding Officer, City Manager or City Council. He shall be available to attend all meetings immediately upon call. He shall carry out all orders given by the Presiding Officer or Council to maintain order and decorum at the Council meetings. Any Councilmember may move to require the Sergeant-at-Arms to enforce the rules and the affirmative vote of a majority of the Councilmembers present shall require him to do so.
F-10 FAILURE TO OBSERVE RULES OF ORDER
Rules adopted to expedite the transaction of the business of the Council in an orderly fashion are deemed to be procedural only and the failure to strictly observe such rules shall not affect the authority of the Council or invalidate any action taken at a meeting that otherwise conforms with the law.
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G. M O T I O N S
G-1 PRESENTATION OF MOTIONS
(A) DEFINITION. A motion is the formal statement of a proposal or question to the Council for consideration and action.
(B) RIGHT TO MAKE A MOTION. Every Councilmember has the right to present a motion, provided they have first been formally recognized by the Presiding Officer.
G-2 PROCESSING OF MOTIONS
When a motion is made and seconded, it shall be restated by the Presiding Officer before debate. A motion may not be withdrawn by the mover without the consent of the member seconding it and the approval of the Council.
G-3 PRECEDENCE OF MOTIONS
(A) GENERAL ORDER OF PRIORITY. When a main motion is before the Council, no motion shall be entertained except the following, which shall have priority in the order listed below:
(1) Adjourn
(2) Recess
(3) Postpone temporarily or definitely (table)
(4) Previous question
(5) Limit or extend debate
(6) Refer to committee or staff
(7) Amend
(8) Postpone indefinitely
(B) RESTRICTIONS. The above order of priority is subject to the following restrictions:
(1) A motion shall not be repeated without intervening business or discussion. (2) A motion shall not be in order when the previous question has been ordered. (3) A motion shall not be in order while a vote is being taken. (4) The Presiding Officer may allow informal recognition of any Councilmember or staff at anytime, and such shall not be considered to be out-of-order.
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G-4 PARTICULAR MOTIONS, PURPOSE AND CRITERIA
The purpose and relevant criteria of the motions listed above are as follows:
(A) MOTION TO ADJOURN
(1) Purpose. To close a meeting.
(2) Debatable or Amendable. Generally, No. However, a motion to adjourn to another time is debatable and amendable as to the time to which the meeting is to be adjourned.
(B) MOTION TO RECESS
(1) Purpose. To permit an interlude in the meeting and to set a definite time for continuing the meeting.
(2) Debatable or Amendable. Yes. However, duration of recess may be restricted. (C) MOTION TO POSTPONE TEMPORARILY
(1) Purpose. To temporarily set aside a pending main motion provided that it may be taken up again for consideration during the current meeting or at the next regular meeting. It is also referred to as a motion to lay on the table. (2) Debatable or Amendable. It is debatable, but not amendable. (D) MOTION FOR PREVIOUS QUESTION (“CALL FOR THE QUESTION”) (1) Purpose. To prevent or stop discussion on the pending question and to bring such question to vote immediately. The motion must be seconded and approved by a majority of the City Council present. If the motion fails, discussion shall continue.
If the motion passes, a vote shall be taken on the pending motion. (2) Procedure. The maker of the motion shall state “Motion to call for the previous question.” The presiding officer shall then immediately seek a second for the motion. If no second is obtained, discussion may continue. If a second is obtained, a vote is taken immediately.
(3) Debatable or Amendable. No.
(E) MOTION TO LIMIT OR EXTEND DEBATE
(1) Purpose. To limit or determine the time that will be devoted to discussion of a pending motion or to extend or remove limitations already imposed on its discussion.
(2) Debatable or Amendable. This motion is not debatable. Amendments are restricted to period of time of the proposed limit or extension. (F) MOTION TO REFER TO COMMISSION OR STAFF
(1) Purpose. To refer the question before the Council to a commission or to the City Staff for the purpose of investigating or studying the proposal and to make a report
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back to the Council. If the motion fails, discussion or vote on the question resumes. (2) Debatable or Amendable. Yes.
( G ) MOTION TO AM E N D
(1) Purpose. To modify or change a motion that is being considered by the Council so that it will express more satisfactorily the will of the members. If the motion fails, discussion or vote on the main motion resumes. If the motion passes, then the main motion should be voted on as amended.
(2) Debatable or Amendable. It is debatable unless applied to a main motion that is not debatable. It is amendable.
(H) MOTION TO POSTPONE INDEFINITELY
(1) Purpose. To prevent further discussion and voting on the main motion. If the motion fails, discussion and voting on the main motion resumes. If it passes, the subject of main motion resumes. If it passes, the subject of main motion shall not be brought up again for the remainder of the meeting or the next regular meeting. (2) Debatable or Amendable. It is debatable but not amendable. (I) MOTION TO SUBSTITUTE
(1) Substitute Motions shall be considered prior to the Main Motion. If the Substitute Motion passes, the Main Motion is disregarded. If the Substitute Motion fails, the Main Motion is then considered..
(2) Debatable or Amendable. Yes.
(J) MAIN MOTION
(1) Purpose. The primary proposal or question before the Council for discussion and decision.
(2) Debatable or Amendable. Yes.
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H. V O T I N G
H-1 VOTING PROCEDURE
(A) VOICE OR ROLL CALL VOTE. When any motion is in order for the question, a vote thereon shall be taken by electronic vote, voice or roll call and entered into the record. Motions may be passed by a simple majority of the members present at a properly called meeting (3 votes sufficient if only 4 members present), except those motions on actions required by law to be adopted by a higher number of Councilmembers.
(B) ROLL CALL VOTE. A roll call vote shall be used for the enactments listed above. All other motions shall not require a roll call vote unless demanded by a Councilmember. It shall not be in order for members to explain their vote during the roll call.
H-2 CHANGE OF VOTE
A member may change his vote only if he makes a timely request to do so immediately following the announcement of the vote by the City Clerk and prior to the time that the next item in the order of business is taken up.
H-3 FAILURE TO VOTE
Every member should vote unless disqualified for cause accepted either by vote of the Council or by opinion of the City Attorney. Self-disqualification, without approval, which results in a tie vote shall be viewed as thwarting Council action. However, no Councilmember shall be forced to vote. A Councilmember who abstains shall in effect consent that a majority of the quorum may act for him.
Tie votes shall be lost motions and matters may be reconsidered upon the making of a motion to reconsider.
H-4 CONFLICT OF INTEREST
Any Councilmember who has a financial interest which requires disqualification under applicable law, including Government Code Section 1090 et seq. or the Political Reform Act, shall disclose said interest and disqualify himself or herself in accordance with applicable law. Where it is not clear whether such interest is of a disqualifying nature, the Councilmember shall confer with the City Attorney in advance of the meeting. The Councilmember shall confer with the City Attorney in sufficient time to seek research and guidance from the City Attorney, Attorney General or Fair Political Practices Commission, as necessary under the law.
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H-5 RECONSIDERATION AND RESCISSION OF PRIOR ACTION
After motion and vote by the Council, such action may be reconsidered or rescinded in the following manners:
(A) RECONSIDERATION. A motion to set aside a vote or reconsider a main motion shall always be in order at the same meeting. The motion to reconsider is amendable and debatable. Such motion can be made by a Councilmember regardless of how he previously voted on the matter.
If the motion to reconsider passes, the prior action is overruled and canceled. (B) RESCISSION. A motion to rescind repeal, cancel, or nullify prior Council action on a main motion shall be in order at any meeting of the Council. The effect of rescinding prior Council action shall operate prospectively only and not retroactively to the date of the original action.
That is, it shall not operate to adversely affect intervening legal rights which create an estoppel situation.
(C) LOST MOTIONS. A lost motion is one that fails to receive the necessary number of votes to carry the motion. Tie votes result in a lost motion. Lost motions may be renewed at any subsequent Council meeting. To revive a lost motion at the same meeting, the proper action is a motion to reconsider, discussed above.
I. MINUTES
I-1 PREPARATION OF MINUTES
The minutes shall consist of a clear and concise statement of each and every Council action including the motions made and the vote thereon. Reasons for making a motion, or voting, Council debate and audience reaction are generally irrelevant for purposes of the minutes. Such items may be included if considered to be particularly relevant or otherwise necessary by the City Clerk in the first instance and by the Council in the final instance. The City Clerk shall have exclusive responsibility for preparation of the minutes and any directions for changes in the minutes shall be made only by action of the City Council.
I-2 MINUTES OF HEARINGS
Whenever the Council acts in a quasi-judicial proceeding, such as hearings as defined in Section KJ-1, the minutes shall contain a synopsis of all evidence considered in the hearing, including statements of persons addressing the Council.
I-3 READING OF MINUTES
Unless the reading of the minutes of a Council meeting is ordered by a majority vote of the Council, such minutes may be approved without reading if the City Clerk has previously furnished each Councilmember with a copy.
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J. ORDINANCES, RESOLUTIONS AND CONTRACTS
J-1 PREPARATION OF ORDINANCES, RESOLUTIONS AND CONTRACTS (A) ORDINANCES. All ordinances shall be prepared by the City Attorney and shall be presented to the Council only when ordered by a majority of the Council, requested by the Mayor, City Manager or prepared by the City Attorney on his own initiative. (B) RESOLUTIONS. It shall be considered best practice to have all resolutions prepared or approved by the City Attorney. However, resolutions may be prepared for submission by an individual, group or organization. In matters of urgency, a resolution may be presented verbally in motion form together with instructions for written preparation for later execution. Urgency resolutions shall be avoided except when absolutely necessary and shall be avoided entirely when such resolutions are not required by law.
(C) CONTRACTS. All contracts shall be prepared or approved by the City Attorney, and shall be presented to Council only when ordered by the Council, or submitted by the Mayor, City Manager or City Attorney.
J-2 PRIOR APPROVAL BY ADMINISTRATIVE STAFF
All ordinances, resolutions and contract documents shall be approved as to form and legality by the City Attorney before presentation to the Council. Where there are substantive administrative matters involved, the City Manager or his authorized representative shall also examine and approve such ordinances, resolutions or contracts.
J-3 ENACTMENT OF ORDINANCES
(A) INTRODUCTION. Ordinances shall be introduced for first reading by motion. When ordinances, other than urgency ordinances, are altered after introduction, they shall be passed only at a regular or adjourned regular meeting held at least 5 days after alteration. Corrections or typographical or clerical errors are not considered alterations.
(B) ADOPTION. Ordinances shall be adopted by motion. Ordinances shall not be adopted within five (5) days of their introduction. Ordinances shall only be adopted at a regular or adjourned meeting. (C) READING. All ordinances shall be read in full either at the time of introduction or passage.
However, further reading may be waived, after reading the title, by regular motion adopted by majority vote of the Councilmembers present.
(D) URGENCY ORDINANCE. An urgency ordinance is an ordinance for the immediate preservation of the public peace, health or safety of the city, as provided for in applicable law. It may be passed immediately upon introduction and either at a regular or special meeting. The urgency ordinance must declare the facts constituting the urgency and it shall be passed by the number of affirmative votes required by applicable law.
(E) PUBLICATION. Within 15 days after its adoption, the City Clerk shall cause each ordinance or a summary thereof to be published as required by applicable law.
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(F) EFFECTIVE DATE. Most ordinances take effect 30 days after their final passage. However, certain ordinances shall take effect immediately, as allowed by applicable law.
J-4 ADOPTION OF RESOLUTIONS
Resolutions may be adopted by motion on the date they are first presented to the Council. It is not required that resolutions be read, either in full or by title only.
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K. H E A R I N G S
K-1 APPLICATION AND DEFINITION
The following procedural rules shall apply to all hearings before the City Council. As used here, the term "hearing" shall include all public hearings required by state law or city ordinance.
K-2 RIGHTS OF INTERESTED PERSONS
On the date and at the time and place designated in the notice, the Council shall afford any interested person and / or authorized representative, the opportunity to examine and cross examine witnesses, to present documentary evidence, to present statements, arguments, or contentions orally and/or in writing, subject to the rules on ADDRESSING THE COUNCIL, listed in Section DSection E of this manual, and rules stated below.
K-3 PRESENTATION OF EVIDENCE
(A) ORAL EVIDENCE. All oral statements which are relevant to the subject matter of the hearing may be considered by the Council. Oral evidence may be taken, on oath or affirmation, at the request of any interested party or his authorized representative. (B) EXHIBITS AND DOCUMENTS. Exhibits and documents used by the City Staff and any persons participating in the hearing may be considered as evidence. (C) COMMUNICATIONS AND PETITIONS. All communications and petitions concerning the subject matter of the hearing shall be read aloud either in full or by synopsis thereof, providing that a reading in full shall be provided at the request of any Councilmember. All such communications and petitions may be considered as evidence by the Council. (D) STAFF REPORTS. Whenever practicable, a written staff report shall be prepared and read or summarized orally as part of the staff presentation. Said report shall be considered as evidence. (E) LARGE MAPS AND DISPLAYS. Large size maps and displays presented for use at the hearing shall, whenever practicable, be displayed in full view of the participants and the audience. Said maps or displays, or authentic reductions thereof, may be considered as evidence. (F) ADMISSIBLE EVIDENCE. The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to reply in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but shall not be sufficient in itself to support a decision, unless it would be admissible over objection in civil actions. The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing, and irrelevant and unduly repetitious evidence shall be excluded.
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K-4 EVIDENCE OUTSIDE THE HEARING
Any evidence taken outside the council chambers such as field trips, views of the premises and discussion with individuals, shall not be considered by the Council in reaching its decision except under either of the following circumstances:
(A) ADJOURNED MEETING. When, during the hearing, the meeting is adjourned to a date, place and time certain for the specific purpose of taking visual or demonstrative evidence such evidence may be considered; or
(B) COUNCILMEMBER OBSERVATIONS & REPORTS. With the consent, either oral or written, of all interested persons, or their authorized representatives, appearing at the hearing, individual members of the Council may take visual or demonstrative evidence outside the council chambers, provided, that the hearing shall be continued to a date and time certain and, upon reconvening in chambers, each Councilmember shall orally report his observations of such outside evidence taken and shall be subject to examination thereon by any interested person or authorized representative.
K-5 CONTINUANCES
Any hearing being held, or noticed or ordered to be held by the Council may, by minute action, be continued to any subsequent regular or adjourned meeting of the Council, provided that if the hearing is continued to a time less than 24 hours after the time specified in the order or notice of hearing, a copy of the order or notice of continuance shall be posted outside the council chambers immediately following the meeting at which the order of continuance was made.
K-6 DECISION
The Council shall consider all evidence properly presented in accordance with the rules stated in this manual. Unless otherwise provided by law, the Council shall render a decision or determination on the matter within forty (40) days of the close of the hearing. Said decision or determination shall be by motion made and action taken thereon at a regular or adjourned meeting of the Council. Any Councilmember who was not present during the entire hearing or who, in the opinion of the City Attorney should not discuss or vote on the matter, shall disqualify himself from discussion or voting on said matter.
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K-7 RECORD OF HEARING
A verbatim mechanical (DVD)flash drive recording shall be made of the oral evidence presented at the hearing. Said recording, together with all documents, maps, exhibits and displays admitted into evidence, shall be retained by the City Clerk for a period of two (2) years from the date of the close of the hearing. In lieu of retaining said recording, the City Clerk may prepare a typewritten transcript thereof which shall also be retained for two (2) years. Said recording or transcript and evidentiary documents shall be made available for public inspection and use at reasonable times and under such reasonable conditions as may be prescribed by the City Clerk.
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L. GENERAL GUIDELINES
L-1 CITY COUNCIL OFFICE – ADMINISTRATIVE SUPPORT
Staffing of the City Council Office and administrative support to City Councilmembers is provided through the City Manager’s Office. Administrative services include scheduling of appointments, receipt of telephone messages, and word processing as needed. Sensitivity to the workload of support staff members is appreciated, and work is assigned based on priority.
L-2 SERVICE REQUESTS
Service requests should be submitted through administrative staff in the City Council and/or City Manager’s Offices. These service requests include, but are not limited to requests dealing with graffiti abatement, potholes & other street issues, street lighting, parks issues, tree trimming, and code enforcement. Requests are handled in the order received, with the exception of those which are emergency in-nature, such as those which could jeopardize public safety. Service Requests should not be submitted during City Council meetings from the dais.
L-3 REQUESTS FOR STAFF ASSISTANCE
City Councilmembers should direct all staff inquiries to the City Manager, or Department Directors.
Councilmembers should refrain from initiating contact with staff members below the Department Director level. All City Councilmember emails to Department Directors should include the City Manager.
L-4 INFLUENCE ON STAFF
City Councilmembers shall not make attempts to pressure or influence staff decisions, recommendations, workloads, schedules, or department priorities without the prior knowledge and approval of the City Council as a whole. Councilmembers should refrain from direct involvement in the day-to-day duties of staff members, and should refer all complaints to the City Manager’s Office for handling. City Councilmembers should not further involve themselves with complaints, unless all staff resources have been exhausted, including appeal to the Department Director and/or City Manager.
L-5 IMPOSITION ON STAFF RESOURCES
Requests for staff resources which require more than two (2) hours of staff time shall require approval by the City Manager. City Councilmembers should refrain from greater imposition on staff resources, pending approval by the entire City Council. This includes requests for unbudgeted special events, neighborhood meetings, individual Councilmember projects, etc.
L-6 USE OF SOCIAL MEDIA. Although social media has become an effective communication tool used by local government to provide direct communications with the community, elected officials need to be mindful to not use social media in a manner that could harm the City’s interest. In addition, Councilmembers should be cautious with their social media postings in an effort to avoid inadvertently conducting serial meetings that would violate the notice and public meeting requirements. When Councilmembers are making decisions about how to engage on social media, they should take a number
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of legal considerations into account such as; the Brown Act, the Public Records Act, due process, and First Amendment considerations. If a City Councilmember is unsure about how their particular uses of social media may or may not conflict with the current governmental regulations, it is advisable that they consult with the City Attorney.
L-7 POLICY-RELATED AND FUNDING REQUESTS. All requests from the City Council that involve policy matters, direction, or funding must be directed to the City Manager. Requests requiring funding should specifically be addressed to the City Manager, who will respond in a timely manner. For better tracking and to assist the City Manager in providing proper responses, it is preferable that requests be submitted in writing, either in memorandum form or via email. Councilmembers may also contact the City Attorney or City Clerk as needed.
L-8 DISCLOSURE OF INFORMATION. No Councilmember may, without prior formal authorization of the City Council, disclose any confidential information concerning any other official or employee, or any other person, or any property, or governmental affairs of the City.
Whether or not such information is allowed to be disclosed, no Councilmember may use or permit the use of any such confidential information to advance the financial, political, or personal interest of himself/herself or any other person. For the purposes hereof, “confidential information” shall mean information that is not generally known in the public and/or is not subject to disclosure under the California Public Records Act or other applicable law. Some examples of confidential information include attorney- client privileged communication, attorney-client work product, information shared in Closed Session, personnel, medical, or similar information – the disclosure of which would constitute an unwarranted invasion of privacy. (Govt. Code Section 6250 et seq.) L-9 COMPLAINTS AND POLICY VIOLATIONS BY COUNCILMEMBERS. (A) COMPLAINTS AGAINST COUNCILMEMBERS. A complaint naming a Councilmember regarding a violation of the Procedures contained herein or other City policies may be filed with the Mayor, the City Manager, the City Attorney, or the City’s Human Resources department. If a complaint was not filed directly with the City Attorney, it will be promptly forwarded to them. Within forty-five (45) days of receipt of the complaint, the City Attorney will bring the complaint to Council (except for the named Councilmember). The named Councilmember will have the opportunity to respond to the complaint orally or in writing as part of the Council’s review of the complaint. After reviewing the complaint and considering the response of the named Councilmember, if any, if the Council determines a policy violation occurred, it may direct the Mayor to make an Admonishment (as defined in Section
2.a. below). Or, when deemed warranted, the Council may direct the City Attorney to initiate an investigation by a neutral investigator that is authorized under the law to conduct investigations. The City Attorney will review the findings of the investigation and, within thirty (30) days of receipt of the
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investigator’s final findings, review them with Council (except for the named Councilmember). Unless otherwise relevant and allowed under open meeting laws, Council’s discussion will generally be limited to the complaint, the investigation (if any), and whether any policy violations have occurred. (B) POTENTIAL COUNCIL ACTIONS. If, after reviewing a complaint or findings of an investigation, the Council determines that a policy violation occurred, it may undertake one (1) or more of the following actions:
(a) Admonishment: This is the least severe form of action. An admonishment is a reminder directed to all Councilmembers that a particular type of behavior is in violation of City policy or these Procedures, and that, if it occurs or is found to have occurred, could make a Councilmember subject to a higher level of action. An admonition may be issued by the Council prior to any investigation into a complaint, and, because it is a warning or reminder, does not require a separate hearing to determine whether the complaint is true.
(b) Warning to Named Councilmember: This is the next most severe form of action. This warning to a particular Councilmember should be used for cases in which the Council determines, based on review of the findings of an investigation, a policy violation occurred, but the violation is considered not sufficiently serious to warrant censure. The matter will be properly agendized, and the Council will make a motion and vote during a public meeting whether to issue the warning to the named Councilmember(s). The named Councilmember(s) will be provided appropriate notice and, prior to the vote on the motion, an opportunity to provide a written or verbal response to the complaint(s). A warning to the named Councilmember(s) is distinguished from censure in that it is not a punishment. (c) Censure: Censure is the most severe form of action. Censure is a formal statement of the Council officially reprimanding one of its members and may be combined with other actions, including but not limited to, loss of committee assignments, suspension of City-sponsored attendance at conferences, meetings, workshops, seminars and similar gatherings, or removal of other privileges deemed appropriate by Council. Censure should be used for cases in which the Council determines, based on review of the findings of an investigation, the policy violation is a serious offense.
A decision to censure the named Councilmember(s) requires Council to adopt a Resolution and make findings regarding policy violations at a public meeting. Prior to the adoption of the Resolution, the named Councilmember(s) will be provided sufficient notice and the opportunity to provide a written or verbal response to the complaint. After the named Councilmember(s) provides a written or verbal response to the complaint, if any, the majority of the Council may vote not to adopt the Resolution, but may decide to issue a lower action against the named Councilmember(s).
To protect the overriding principle of freedom of speech, the Council will not impose censure on any of its members for the exercise of their First Amendment rights, no matter how distasteful the
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expression was to the Council or the City. However, nothing herein may be construed to prohibit the Council from collectively condemning and expressing their strong disapproval of such remarks. (C) DUE PROCESS. In all instances, the Council shall ensure that all due process requirements are met. The City Attorney may recommend variations to procedures to ensure due process. (D) DE-ESCALATION/INFORMAL RESOLUTION. In addition to the actions above, the Council is encouraged to take steps to de-escalate the behavior that could lead to a complaint before a complaint is filed and consider addressing the complaint informally, if appropriate, in an effort to bring the named Councilmember(s) into compliance with this Code.
(E) VIOLATIONS OF LAW. Any violations of applicable laws as referred to in these Protocols, which include, but are not limited to, violations of the United States and California Constitutions, United States and California codes, regulations, interpretive administrative findings and relevant case law, may be reported to the appropriate governing agencies.
Item: 12.
Staff Report
Meeting Date: April 7, 2026
To: City Council
From: Bill Smith, City Manager
Prepared By: Chad Blais, PW & Utility Services Director Item Name: Notice of Completion - San Bernardino Avenue Street Improvement Project - Approve the Execution and Recordation of the Notice of Completion for the San Bernardino Avenue Street Improvement Project.
Recommended Action:
Staff recommend that the City Council approve the execution and recordation of the Notice of Completion for the San Bernardino Avenue Street Improvement Project completed by Hardy & Harper, Inc.
Background:
San Bernardino Ave. is an arterial street that runs east to west on the northwest part of Colton between Meridian Ave. and west City limit. The scope of the Project included installation of missing curb and gutter (south side), ADA ramps, asphalt widening, and installation of striping and signs. The limit of the Project is between Pepper Ave. and Indigo St. as shown on the project plans.
Issues/Analysis:
On August 5, 2025, the City Council awarded a construction contract to Hardy & Harper, Inc for the San Bernardino Avenue Street Improvement Project in the amount of $401,200.00. The project incurred a change order in the amount of $3,580.72 (0.089%) which reflects minor increases to material quantities in the field, making the total cost for the project $404,780.72.
The project is completed and now ready for closeout.
Fiscal Impacts:
There is no additional fiscal impact to the record of the Notice of Completion. The San Bernardino Avenue Street Improvement Project was funded through the following sources:
Funding Account No. Contract Amount
Host City Fee Fund 240-2632-6150-3890-0000-
000
$320,000.00
Measure I Fund 218-2221-6150-3890-0000-
000
$77,186.00
Capital Improvement Fund -
CFD 87-1
450-2232-6985-3890-0000-
000
$7,594.72
Total $404,780.72
Alternatives:
1. Provide alternative direction to staff.
Attachments:
1. Exhibit A- Notice of Completion
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
Name: City of Colton
Street 650 N. La Cadena Drive
Address
City & Colton, California
State California
Zip 92324
SPACE ABOVE THIS LINE FOR RECORDER’S USE
Notice of Completion
NOTICE IS HEREBY GIVEN THAT:
1. The City of Colton is the owner of the interest or estate stated below in the property hereinafter described.
2. The full name of the undersigned is CITY OF COLTON
3. The full address of the undersigned is 650 N. La Cadena Drive, Colton, CA 92324
4. The nature of the title of the undersigned is City of Colton is the owner in fee, of a certain public improvement (E.G. owner in fee OR vender under contract of purchase OR lessee OR OTHER APPROPRIATE DESIGNATION).
5. The full names and full addresses of all persons, if any, who holds title with the undersigned as joint tenants or as tenants in common are:
Names Addresses
N/A N/A
6. The names of the predecessors in interest of the undersigned, if the property was transferred subsequent to the commencement of the work of improvement herein referred to are (OR IF NO TRANSFER WAS MADE, INSERT THE WORD “none”):
Names Addresses
N/A N/A
7. A work of improvements on the property hereinafter described was completed on DECEMBER 18, 2025
8. The name of the original contractor, if any, for the work of improvement was HARDY & HARPER, INC. The kind of work done or material furnished was the SAN BERNARDINO AVENUE STREET IMPROVEMENT.
9. The property on which the work of improvement was completed is in the CITY OF COLTON, County of SAN BERNARDINO, State of California, and is described as follows: SAN BERNARDINO AVENUE STREET IMPROVEMENT PROJECT.
The street address of the said property is various (APN is not applicable) APN-None
Dated: ______________________________________(Signature) Victor Ortiz, P.E., City Engineer, City of Colton
VERIFICATION
I, the undersigned say:
I am the person who signed the foregoing notice. I have read the above notice and know its contents, and the facts stated therein are true of my own knowledge.
I declare under penalty of perjury that the foregoing is true and correct.
Executed at _______Colton_________, California, this _____________ day of ___________, 2025.
____________________________________
Victor Ortiz, P.E., City Engineer, City of Colton
Item: 13.
Staff Report
Meeting Date: April 7, 2026
To: City Council
From: Bill Smith, City Manager
Prepared By: Chad Blais, PW & Utility Services Director Item Name: Notice of Completion - South La Cadena Bike Lane - Approve the Execution and Recordation of the Notice of Completion for the South La Cadena Bike Lane Project.
Recommended Action:
Staff recommends City Council approve the execution and recordation of the Notice of Completion for the South La Cadena Bike Lane Project completed by Cat Tracking, Inc.
Background:
The South La Cadena Bike Lane Project which is part of the City of Colton Active Transportation Plan (ATP) includes installation of a new Class 2 bike lanes along La Cadena Drive from 9th Street to Valley Blvd, and along La Cadena Drive from Valley Blvd. to Tropica Rancho Road (Santa Ana River Trail Staging Area).
Issues/Analysis:
On April 15, 2025, the City Council awarded a construction contract to CAT Tracking, Inc for the South La Cadena Bike Lane Project in the amount of $267,436.00. The project incurred a minor change order resulting in a project total cost of $271,134.25.
Fiscal Impacts:
There is no additional fiscal impact to file the Notice of Completion. The project incurred a change order, which bought the total actual cost to $271,134.25. The South La Cadena Bike Lane Project was funded as follows:
Miscellaneous Grants Account 225-2466-6150-3890-000-000 $170,179.87 Traffic Impact Fund Account 249-2466-6150-3890-000-000 $100,954.38 Total $271,134.25
Alternatives:
1. Provide alternative direction to staff.
Attachments:
1. Exhibit A- Notice of Completion
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
Name: City of Colton
Street 650 N. La Cadena Drive
Address
City & Colton, California
State California
Zip 92324
SPACE ABOVE THIS LINE FOR RECORDER’S USE
Notice of Completion
NOTICE IS HEREBY GIVEN THAT:
1. The City of Colton is the owner of the interest or estate stated below in the property hereinafter described.
2. The full name of the undersigned is Victor Ortiz, P.E
3. The full address of the undersigned is 650 N. La Cadena Drive, Colton, CA 92324
4. The nature of the title of the undersigned is City of Colton is the owner in fee, of a certain public improvement (E.G. owner in fee OR vender under contract of purchase OR lessee OR OTHER APPROPRIATE DESIGNATION).
5. The full names and full addresses of all persons, if any, who holds title with the undersigned as joint tenants or as tenants in common are:
Names Addresses
N/A N/A
6. The names of the predecessors in interest of the undersigned, if the property was transferred subsequent to the commencement of the work of improvement herein referred to are (OR IF NO TRANSFER WAS MADE, INSERT THE WORD “none”):
Names Addresses
N/A N/A
7. A work of improvements on the property hereinafter described was completed on AUGUST 24, 2025
8. The name of the original contractor, if any, for the work of improvement was CAT TRACKING, INC. The kind of work done or material furnished was the SOUTH LA CADENA BIKE LANE.
9. The property on which the work of improvement was completed is in the CITY OF COLTON, County of SAN BERNARDINO, State of California, and is described as follows: LA CADENA/ W VALLEY BLVD
SOUTH LA CADENA BIKE LANE PROJECT
The street address of the said property is various (APN is not applicable) APN-None
Dated: ______________________________________(Signature) Victor Ortiz, P.E., City Engineer, City of Colton
VERIFICATION
I, the undersigned say:
I am the person who signed the foregoing notice. I have read the above notice and know its contents, and the facts stated therein are true of my own knowledge.
I declare under penalty of perjury that the foregoing is true and correct.
Executed at _______Colton_________, California, this _____________ day of ___________, 2025.
____________________________________
Victor Ortiz, P.E., City Engineer, City of Colton
Item: 14.
Staff Report
Meeting Date: April 7, 2026
To: City Council
From: Bill Smith, City Manager
Prepared By: Chad Blais, PW & Utility Services Director Item Name: Purchase - Cummins Inc. - Approve the Purchase of One (1) Portable Generator from Cummins Inc. for the Wastewater Utilities Division of the Public Works & Utilities Department in the Amount of $87,600.
Recommended Action:
Approve the purchase of one (1) portable generator in the amount of $87,600 from Cummins Inc. via the Sourcewell Cooperative Purchasing Program, in accordance with Colton Municipal Code Section 3.08.140(N).
Background:
The City of Colton Wastewater Utilities Department operates eight sewer lift stations throughout the City’s service area. These lift stations are critical components of the wastewater collection system and rely on continuous electrical power to convey sewage flows to downstream facilities for treatment.
During electrical outages, the inability to operate these lift stations can result in sanitary sewer overflows, potential environmental impacts, and service disruptions. For this reason, the department maintains portable backup generation equipment that can be deployed to lift station locations during emergencies or extended power outages.
The City’s existing portable generator used by the Wastewater Collections Division was originally purchased in the 1990s and has recently experienced significant mechanical issues.
The unit has reached the end of its useful service life and is currently inoperable. Staff have determined that repairing the unit would require extensive repairs that exceed the current value of the equipment. In addition, replacement parts for the existing generator are increasingly difficult to obtain due to the age and obsolescence of the unit.
To ensure the reliability of the wastewater collection system during power outages, staff are
recommending the purchase of a new portable generator that can be quickly deployed to the City’s lift stations when needed.
Issues/Analysis:
Staff evaluated available portable generator options that would meet the operational needs of the Wastewater Collections Division. The recommended unit is a Cummins C70D2RE portable diesel generator, a fully integrated mobile power generation system designed for standby and prime power applications. The generator is equipped with a Tier IV compliant Cummins diesel engine, a trailer-mounted configuration, and an integrated control system designed for reliable operation in demanding environments.
The generator provides approximately 70 kW of standby power and includes multiple voltage configurations, allowing it to be used across various City facilities and lift station configurations.
The unit also includes an integrated fuel tank capable of supporting extended operation during emergencies, a sound-attenuated enclosure, and advanced control and monitoring features.
The portable configuration allows staff to transport the generator to any lift station within the City that may experience power loss. This flexibility ensures that wastewater flows can continue to be conveyed during outages, reducing the risk of sanitary sewer overflows and maintaining compliance with regulatory requirements.
Section 3.08.140(N) of the City’s Purchasing Ordinance authorizes the City to utilize cooperative purchasing by dispensing with its own competitive bidding process when a competitive procurement has been conducted by another public agency, provided the pricing and terms offered to the City are equal to or more favorable than those obtained by that agency.
As a local government unit, Sourcewell has established cooperative purchasing contracts that allow participating agencies to procure equipment through competitively bid national contracts.
The City of Colton is an active participant in the Sourcewell cooperative purchasing program.
Cummins Inc. is an approved Sourcewell contract vendor under contract No. 092222-CMM.
Staff recommends purchasing the generator through the Sourcewell Cooperative Purchasing Program, which allows the City to obtain competitively priced equipment while streamlining the procurement process.
Fiscal Impacts:
Sufficient appropriations are available in the FY2025-26 adopted Wastewater Fund Operations Equipment Account Number 522-8200-8200-4955-0000-000 to purchase this generator.
Alternatives:
1. Provide alternative direction to staff.
Attachments:
1. City of Colton 70kW Trailer Mounted Portable
2. Cummins Contract 092222
Project: City of Colton 70kW Trailer
Mounted Portable
Quotation: Q-431166-20260316–1152 Page 1
March 16, 2026
Prepared by
Steve Lee
Inside Sales Representative- PG
(949) 253-6037
[email protected]
We are pleased to provide you this quotation based on your inquiry. 70kW Trailer Mounted Portable
Item Description Qty
1 C70D2RE Trailer Mounted Portable 480V 1
2 Cummins Branding 1
3 Delivery: Excludes offloading 1
Quote value does not include any tax.
EXCEPTIONS AND CLARIFICATIONS:
This quote is based on verbal requests
Offloading, installation, air quality permits, fuel/fuel for testing, NETA, Source testing & 3rd party testing are to be provided by others.
Freight is included in this proposal to the first US destination.
Start & Test is not included. Please see adder pricing. If additional trips or trainings required we will requote.
LEAD TIME:
Generator – 2-3 weeks from receipt of approved submittals and order release for production Submittal lead time- 3-6 weeks after PO receipt
TOTAL: $87,600.00
OPTIONS:
Adders:
Start & Test 1 Trip: 1 Day 2Hr Load Test: $2,250
Project: City of Colton 70kW Trailer
Mounted Portable
Quotation: Q-431166-20260316–1152 Page 2
Please feel free to contact me if you require any additional information; or if you have any further questions or concerns that I may be of assistance with.
Thank you for choosing Cummins.
Submitted by:
Richard Antunez
Richard Antunez
Senior Sales Executive - PG
(909) 936-0024
[email protected]
SUBMITTALS. An order for the equipment covered by this quotation will be accepted on a hold for release basis. Your order will not be released and scheduled for production until written approval to proceed is received in our office. Such submittal approval shall constitute acceptance of the terms and conditions of this quotation unless the parties otherwise agree in writing.
THERE ARE ADDITIONAL CONTRACT TERMS AND CONDITIONS ATTACHED TO THIS QUOTATION, INCLUDING LIMITATIONS OF WARRANTIES AND LIABILITIES, WHICH ARE EXPRESSLY INCORPORATED HEREIN. BY ACCEPTING THIS QUOTATION,
CUSTOMER ACKNOWLEDGES THAT THE CONTRACT TERMS AND CONDITIONS HAVE BEEN READ, FULLY UNDERSTOOD AND ACCEPTED.
Authorized Signature
Date
Company Name
Printed Name & Title
Purchase Order No
<Rest of the page is intentionally left blank>
Project: City of Colton 70kW Trailer
Mounted Portable
Quotation: Q-431166-20260316–1152 Page 3
TERMS AND CONDITIONS FOR SALE OF POWER GENERATION EQUIPMENT These Terms and Conditions for Sale of Power Generation Equipment, together with the quote (“Quote”), sales order (“Sales Order”), and/or credit application (“Credit Application”) on the front side or attached hereto, are hereinafter collectively referred to as this “Agreement” and shall constitute the entire agreement between the customer identified in the Quote (“Customer”) and Cummins Inc. (“Cummins”) and supersede any previous representation, statements, agreements or understanding (oral or written) between the parties with respect to the subject matter of this Agreement. Customer shall be deemed to have made an unqualified acceptance of these Terms and Conditions and it shall become a binding agreement between the parties on the earliest of the following to occur: (i) Cummins’ receipt of Customer’s purchase order or purchase order number; (ii) Customer’s signing or acknowledgment of this Agreement; (iii) Cummins’ release of equipment to production pursuant to Customer’s oral or written instruction or direction; (iv) Customer’s payment of any amounts due to Cummins; or (v) any other event constituting acceptance under applicable law. No prior inconsistent course of dealing, course of performance, or usage of trade, if any, constitutes a waiver of, or serves to explain or interpret, the Terms and Conditions set forth in this Agreement. Electronic transactions between Customer and Cummins will be solely governed by the Terms and Conditions of this Agreement, and any terms and conditions on Customer’s website or other internet site will be null and void and of no legal effect on Cummins. In the event Customer delivers, references, incorporates by reference, or produces any purchase order or document, specifications, agreement (whether upstream or otherwise), or any other terms and conditions related thereto, then such specifications, terms, document, or other agreement: (i) shall be null and void and of no legal effect on Cummins, and (ii) this Agreement shall remain the governing terms of the transaction.
1. SCOPE. Cummins shall supply power generation equipment and any related parts, materials and/or services expressly identified in this Agreement (collectively, “Equipment”). No additional services, parts or materials are included in this Agreement unless mutually agreed upon by the parties in writing. A Sales Order for Equipment is accepted on a hold for release basis. The Sales Order will not be released and scheduled for production until written approval to proceed is received from Customer. A Quote is limited to the plans and specifications section specifically referenced in the Quote. No other sections shall apply. Additional requirements for administrative items may require additional costs. The Quote does not include off unit wiring, off unit plumbing, offloading, rigging, installation, exhaust insulation or fuel, unless otherwise stated and mutually agreed to in writing by the parties. Unless otherwise agreed by Cummins in writing, this Quote is valid for a maximum period of thirty (30) days from the date appearing on the first page of this Quote (“Quote Validation Period”). At the end of the Quote Validation Period, this Quote will automatically expire unless accepted by Customer prior to the end of the Quote Validation Period. The foregoing notwithstanding, in no event shall this Quote Validation Period be deemed or otherwise considered to be a firm offer period nor to establish an option contract, and Cummins hereby reserves its right to revoke or amend this Quote at any time prior to Customer’s acceptance.
2. SHIPPING; DELIVERY; DELAYS. Unless otherwise agreed in writing by the parties, Equipment shall be delivered FOB origin, freight prepaid to first destination. For consumer and mobile products, freight will be charged to Customer. Unless otherwise agreed to in writing by the parties, packaging method, shipping documents and manner, route and carrier and delivery shall be as Cummins deems appropriate. Cummins may deliver in installments. The purchase of Equipment is a “take or pay” obligation on the part of the Customer, such that Customer is absolutely and irrevocably required to accept and pay for the Equipment if delivery or pick-up of Equipment is delayed, deferred, or refused by Customer beyond thirty (30) days from the agreed upon delivery date. In the event Customer fails to take any or all shipments of Equipment ordered hereunder within thirty (30) days of the agreed upon delivery date, Cummins shall have the right to invoice the Customer and, upon Cummins’ sole discretion, Cummins may either: (i) deliver the Equipment to the location indicated on Customer’s purchase order (regardless of whether Customer elected to pick up the Goods at Cummins’ facility or otherwise indicated an alternate delivery method), and Customer shall assume all associated delivery costs incurred by Cummins, or (ii) charge storage fees for the additional inventory holding period, the additional inventory holding period not to exceed one hundred twenty (120) days from the agreed upon delivery date, unless otherwise agreed by Cummins in writing. A storage fee of two thousand five hundred dollars ($2,500.00) or two percent (2%) of the total quoted amount, whichever is greater, shall be assessed for any Equipment whose delivery or pick-up is delayed, deferred, or refused by Customer beyond thirty (30) days from the agreed upon delivery date. Unless otherwise agreed by Cummins in writing, in the event delivery or pick-up of Equipment is delayed, deferred, or refused by Customer beyond one hundred twenty (120) days from the agreed upon delivery or pick-up date, or date of completion of Services, then Cummins has the right, in its sole discretion, to: (i) tow, remove, or otherwise dispose of the unclaimed Equipment in accordance with applicable abandonment laws, and/or (ii) make the Equipment available for auction or sale to other customers or to the public, or (iii) otherwise use, destroy, or recycle the Equipment at Customer’s sole cost and expense. The foregoing remedies shall be without prejudice to Cummins’ right to pursue other remedies available under the law, including without limitation, recovery of costs and/or losses incurred due to the storage, auction, sale, destruction, recycling, or otherwise of the Equipment. Offloading, handling, and placement of Equipment and crane services are the responsibility of Customer and not included unless otherwise stated. All shipments are made within normal business hours, Monday through Friday. Any delivery, shipping, installation, or performance dates indicated in this Agreement are estimated and not guaranteed. Further, delivery time is subject to confirmation at time of order and will be in effect after engineering drawings have been approved for production. Cummins shall use commercially reasonable efforts to meet estimated dates, but shall not be liable to customer or any third party for any delay in delivery, shipping, installation, or performance, however occasioned, including any delays in performance that result directly or indirectly from acts of Customer or any unforeseen event, circumstance, or condition beyond Cummins’ reasonable control including, but not limited to, acts of God, actions by any government authority, civil strife, fires, floods, windstorms, explosions, riots, natural disasters, embargos, wars, strikes or other labor disturbances, civil commotion, terrorism, sabotage, late delivery by Cummins' suppliers, fuel or other energy shortages, or an inability to obtain necessary labor, materials, supplies, equipment or manufacturing facilities. AS A RESULT OF COVID-19 RELATED EFFECTS OR INDUSTRY SUPPLY CHAIN
Project: City of Colton 70kW Trailer
Mounted Portable
Quotation: Q-431166-20260316–1152 Page 4
DISRUPTIONS, TEMPORARY DELAYS IN DELIVERY, LABOR OR SERVICES FROM CUMMINS AND ITS SUB-SUPPLIERS OR SUBCONTRACTORS MAY OCCUR. AMONG OTHER FACTORS, CUMMINS’ DELIVERY OBLIGATIONS ARE SUBJECT TO
CORRECT AND PUNCTUAL SUPPLY FROM OUR SUB-SUPPLIERS OR SUBCONTRACTORS, AND CUMMINS RESERVES THE RIGHT TO MAKE PARTIAL DELIVERIES OR MODIFY ITS LABOR OR SERVICE. WHILE CUMMINS SHALL MAKE COMMERCIALLY
REASONABLE EFFORTS TO MEET THE DELIVERY, SERVICE OR COMPLETION OBLIGATIONS SET FORTH HEREIN, SUCH DATES ARE SUBJECT TO CHANGE. IN THE EVENT DELIVERY, SHIPPING, INSTALLATION, OR PERFORMANCE IS DELAYED, HOWEVER OCCASSIONED, DUE TO EVENTS BEYOND CUMMINS’ REASONABLE CONTROL, THEN THE DATE OF DELIVERY,
SHIPPING, INSTALLATION, OR PERFORMANCE FOR THE EQUIPMENT OR SERVICES SHALL BE EQUITABLY EXTENDED FOR A PERIOD EQUAL TO THE TIME LOST, PLUS REASONABLE RAMP-UP.
3. PAYMENT TERMS; CREDIT; RETAINAGE. Unless otherwise agreed to by the parties in writing and subject to credit approval by Cummins, payments are due thirty (30) days from the date of the invoice. If Customer does not have approved credit with Cummins, as solely determined by Cummins, payments are due in advance or at the time of supply of the Equipment. If payment is not received when due, in addition to any rights Cummins may have at law, Cummins may charge Customer eighteen percent (18%) interest annually on late payments, or the maximum amount allowed by law. Customer agrees to pay Cummins’ costs and expenses (including reasonable attorneys’ fees) related to Cummins’ enforcement and collection of unpaid invoices, or any other enforcement of this Agreement by Cummins. Retainage is not acceptable nor binding, unless required by statute or accepted and confirmed in writing by Cummins prior to shipment. All sales are subject to Customer’s ongoing credit approval. While Cummins may initially extend Net 30 payment terms upon Cummins' approval of Customer’s credit application, Cummins reserves the right to reassess Customer’s creditworthiness at any time prior to shipment. If, in Cummins' sole discretion, Customer’s financial condition weakens or otherwise declines, Customer has past due invoices with Cummins, or Cummins otherwise determines that extending credit terms is no longer commercially reasonable, Cummins may, upon notice to Customer, (i) require full or partial payment in advance, (ii) require an alternative form of security satisfactory to Cummins, including but not limited to a letter of credit or payment bond, or (iii) withhold shipment until such payment or security is provided. Cummins shall not be liable for any delays or damages resulting from the enforcement of this provision. If Customer fails to make any payments to Cummins when due and payable, and such failure continues for more than sixty (60) days from the date of the invoice, or less if required by applicable law, then Cummins may, at Cummins’ sole discretion and without prejudice to any other rights or remedies, either (i) terminate this Agreement; or (ii) postpone delivery of any undelivered Equipment in Cummins’ possession and/or suspend its services until payment for unpaid invoices is received.
4. TAXES; EXEMPTIONS. Unless otherwise stated, the Quote excludes all applicable local, state and federal sales and/or use taxes, permits and licensing. Customer must provide a valid resale or exemption certificate prior to shipment of Equipment or applicable taxes will be added to the invoice.
5. TITLE; RISK OF LOSS. Unless otherwise agreed in writing by the parties, title and risk of loss for the Equipment shall pass to Customer upon delivery of the Equipment by Cummins to freight carrier or to Customer at pickup at Cummins’ facility.
6. INSPECTION AND ACCEPTANCE. Customer shall inspect the Equipment upon delivery, before offloading, for damage, defects, and shortage. Any and all claims which could have been discovered by such inspection shall be deemed absolutely and unconditionally waived unless noted by Customer on the bill of lading. Where Equipment is alleged to be non-conforming or defective, written notice of defect must be given to Cummins within three (3) days from date of delivery after which time Equipment shall be deemed accepted.
Cummins shall have a commercially reasonable period of time in which to correct such non-conformity or defect. If non-conformity or defect is not eliminated to Customer’s reasonable satisfaction, Customer may reject the Equipment (but shall protect the Equipment until returned to Cummins) or allow Cummins another opportunity to undertake corrective action. In the event startup of the Equipment is included in the services, acceptance shall be deemed to have occurred upon successful startup.
7. LIEN; SECURITY AGREEMENT. Customer agrees that Cummins retains all statutory lien rights. To secure payment, Customer grants Cummins a Purchase Money Security Interest in the Equipment. If any portion of the balance is due to be paid following delivery, Customer agrees to execute and deliver such security agreement, financing statements, deed of trust and such other documents as Cummins may request from time to time in order to permit Cummins to obtain and maintain a perfected security interest in the Equipment; or in the alternative, Customer grants Cummins a power of attorney to execute and file all financing statements and other documents needed to perfect this security interest. Cummins may record this Agreement, bearing Customer's signature, or copy of this Agreement in lieu of a UCC-1, provided that it shall not constitute an admission by Cummins of the applicability or non-applicability of the UCC nor shall the failure to file this form or a UCC-1 in any way affect, alter, or invalidate any term, provision, obligation or liability under this Agreement. The security interest shall be superseded if Customer and Cummins enter into a separate security agreement for the Equipment. Prior to full payment of the balance due, Equipment will be kept at Customer’s location noted in this Agreement, will not be moved without prior notice to Cummins, and is subject to inspection by Cummins at all reasonable times.
8. CANCELLATION; CHARGES. Orders placed with and accepted by Cummins may not be cancelled except with Cummins’ prior written consent. If Customer seeks to cancel all or a portion of an order placed pursuant to this Agreement, and Cummins accepts such cancellation in whole or in part, Customer shall be assessed cancellation charges as follows: (i) 10% of total order price if cancellation is received in Cummins’ office after Cummins has provided submittals and prior to releasing equipment to be manufactured; (ii) 25% of total order price if cancellation is received in Cummins’ office after receipt of submittal release to order, after receipt of a purchase order for a generator already on order with the factory, or after Cummins is asked to make any hardware changes to the equipment already on order with the factory; (iii) 50% of total order price if cancellation is received in Cummins’ office sixty (60) or fewer days before the scheduled shipping date on the order; or (iv) 100% of total order price if cancellation is received in Cummins’ office after the equipment has shipped from the manufacturing plant.
9. TERMINATION. Cummins may, at any time, terminate this Agreement for convenience upon sixty (60) days’ written notice to Customer. If the Customer defaults by (i) breaching any term of this Agreement, (ii) becoming insolvent or declared bankrupt, or (iii)
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Mounted Portable
Quotation: Q-431166-20260316–1152 Page 5
making an assignment for the benefit of creditors, Cummins may, upon written notice to Customer, immediately terminate this Agreement. Upon such termination for default, Cummins shall immediately cease any further performance under this Agreement, without further obligation or liability to Customer, and Customer shall pay Cummins for any Equipment or services supplied under this Agreement, in accordance with the payment terms detailed in Section 3. If a notice of termination for default has been issued and is later determined, for any reason, that the Customer was not in default, the rights and obligations of the parties shall treat the termination as a termination for convenience.
10. MANUALS. Unless otherwise stated, electronic submittals and electronic operation and maintenance manuals will be provided, and print copies may be available upon Customer’s request at an additional cost.
11. TRAINING; START UP SERVICES; INSTALLATION. Startup services, load bank testing, and owner training are not provided unless otherwise stated. Site startup will be subject to the account being current and will be performed during regular Cummins business hours, Monday to Friday. Additional charges may be added for work requested to be done outside standard business hours, on weekends, or holidays. One visit is allowed unless specified otherwise in the Quote. A minimum of two-week prior notice is required to schedule site startups and will be subject to prior commitments and equipment and travel availability. A signed site check sheet confirming readiness will be required, and Cummins personnel may perform an installation audit prior to the startup being completed.
Any issues identified by the installation audit shall be corrected at the Customer's expense prior to the start-up. Portable load banks for site test (if offered in the Quote) are equipped with only 100 feet of cable. Additional lengths may be arranged at an extra cost. Cummins is not responsible for any labor or materials charged by others associated with start-up and installation of Equipment, unless previously agreed upon in writing. Supply of fuel for start-up and/or testing, fill-up of tank after start up, or change of oil is not included unless specified in the Quote. All installation/execution work at the site including, but not limited to: civil, mechanical, electrical, supply of wall thimbles, exhaust extension pipe, elbows, hangers, expansion joints, insulation and cladding materials, fuel/oil/cooling system piping, air ducts, and louvers/dampers is not included unless specified in the Quote. When an enclosure or sub-base fuel tank (or both) are supplied, the openings provided for power cable and fuel piping entries, commonly referred to as “stub-ups”, must be sealed at the site by others before commissioning. All applications, inspections and/or approvals by authorities are to be arranged by Customer.
12. MANUFACTURER’S WARRANTY. Equipment purchased hereunder is accompanied by an express written manufacturer’s warranty (“Warranty”) and, except as expressly provided in this Agreement, is the only warranty offered on the Equipment. A copy of the Warranty is available upon request. While this Agreement and the Warranty are intended to be read and applied in conjunction, where this Agreement and the Warranty conflict, the terms of the Warranty shall prevail.
13. WARRANTY PROCEDURE. Prior to the expiration of the Warranty, Customer must give notice of a warrantable failure to Cummins and deliver the defective Equipment to a Cummins location or other location authorized and designated by Cummins to make the repairs during regular business hours. Cummins shall not be liable for towing charges, maintenance items such as oil filters, belts, hoses, etc., communication expenses, meals, lodging, and incidental expenses incurred by Customer or employees of Customer, "downtime" expenses, overtime expenses, cargo damages and any business costs and losses of revenue resulting from a warrantable failure.
14. LIMITATIONS ON WARRANTIES.
THE REMEDIES PROVIDED IN THE WARRANTY AND THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES PROVIDED BY CUMMINS TO THE CUSTOMER UNDER THIS AGREEMENT. EXCEPT AS SET OUT IN THE
WARRANTY AND THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY LAW, CUMMINS EXPRESSLY DISCLAIMS ALL
OTHER REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY STATUTORY OR COMMON LAW IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PURPOSE OR MERCHANTABILITY. The limited warranty does not cover Equipment failures resulting from: (a) inappropriate use relative to designated power rating; (b) inappropriate use relative to application guidelines; (c) inappropriate use of an EPA-SE application generator set relative to EPA’s standards; (d) normal wear and tear; (e) improper and/or unauthorized installation; (f) negligence, accidents, or misuse; (g) lack of maintenance or unauthorized or improper repair; (h) noncompliance with any Cummins published guideline or policy; (i) use of improper or contaminated fuels, coolants, or lubricants; (j) improper storage before and after commissioning; (k) owner’s delay in making Equipment available after notification of potential Equipment problem; (l) replacement parts and accessories not authorized by Cummins; (m) use of battle short mode; (n) owner or operator abuse or neglect such as: operation without adequate coolant, fuel, or lubricants; over fueling; over speeding; lack of maintenance to lubricating, fueling, cooling, or air intake systems; late servicing and maintenance; improper storage, starting, warm-up, running, or shutdown practices, or for progressive damage resulting from a defective shutdown or warning device; or (o) damage to parts, fixtures, housings, attachments and accessory items that are not part of the generating set.
15. INDEMNITY. Customer shall indemnify, defend and hold harmless Cummins from and against any and all claims, actions, costs, expenses, damages and liabilities, including reasonable attorneys' fees, brought against or incurred by Cummins related to or arising out of this Agreement or the Equipment supplied under this Agreement (collectively, the “Claims”), where such Claims were caused or contributed to by, in whole or in part, the acts, omissions, fault or negligence of the Customer. Customer shall present any Claims covered by this indemnity to its insurance carrier unless Cummins directs that the defense will be handled by Cummins' legal counsel at Customer’s expense.
16. LIMITATION OF LIABILITY
NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT, IN NO EVENT SHALL CUMMINS, ITS OFFICERS, DIRECTORS,
EMPLOYEES, OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY, WHETHER IN CONTRACT OR IN TORT OR
UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY OR NEGLIGENCE), FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, LIQUIDATED, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING
WITHOUT LIMITATION DOWNTIME, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, LOSS OF OPPORTUNITY, DAMAGE TO
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Quotation: Q-431166-20260316–1152 Page 6
GOODWILL, ENHANCED DAMAGES, MONETARY REQUESTS RELATING TO RECALL EXPENSES AND REPAIRS TO PROPERTY, AND/OR DAMAGES CAUSED BY DELAY), OR IN ANY WAY RELATED TO OR ARISING FROM CUMMINS’ SUPPLY
OF EQUIPMENT UNDER THIS AGREEMENT OR THE USE OR PERFORMANCE OF EQUIPMENT SUPPLIED UNDER THIS AGREEMENT. IN NO EVENT SHALL CUMMINS’ LIABILITY TO CUSTOMER OR ANY THIRD PARTY CLAIMING DIRECTLY THROUGH CUSTOMER OR ON CUSTOMER’S BEHALF UNDER THIS AGREEMENT EXCEED THE TOTAL COST OF EQUIPMENT SUPPLIED BY CUMMINS UNDER THIS AGREEMENT GIVING RISE TO THE CLAIM. BY ACCEPTANCE OF THIS AGREEMENT, CUSTOMER ACKNOWLEDGES CUSTOMER’S SOLE REMEDY AGAINST CUMMINS FOR ANY LOSS SHALL BE THE REMEDY PROVIDED HEREIN.
17. DEFAULT; REMEDIES. Customer shall be in breach and default if: (a) any of the payments or amounts due under this Agreement are not paid; (b) Customer fails to comply, perform, or makes any misrepresentation relating to any of the Customer's obligations or covenants under this Agreement; or (c) prior to full payment of the balance due, Customer ceases to do business, becomes insolvent, makes an assignment for the benefit of its creditors, appoints a receiver, commences an action for dissolution or liquidation, or becomes subject to bankruptcy proceedings, or the Equipment is attached, levied upon, seized under legal process, is subjected to a lien or encumbrance, or transferred by operation of law or otherwise to anyone other than Cummins. Upon the occurrence of any event of Customer's default, Cummins, at its sole option and without notice, shall have the right to exercise concurrently or separately any one or all of the following remedies, which shall be cumulative and not alternative: (a) to declare all sums due, and to become due, under this Agreement immediately due and payable; (b) to commence legal proceedings, including collection actions and specific performance proceedings, to enforce performance by Customer of any and all provisions of this Agreement, and to be awarded damages or injunctive relief for the Customer's breach; (c) to require the Customer to deliver the Equipment to Cummins' branch specified on the face of this Agreement; (d) to exercise one or more of the rights and remedies available to a secured party under applicable law; and (e) to enter, without notice or liability or legal process, onto any premises where the Equipment may be located, using force permitted by law, and there to disconnect, remove and repossess the Equipment, the Customer having waived further right to possession after default. A waiver of any event of default by Cummins shall not be a waiver as to any other or subsequent default.
18. CUSTOMER REPRESENTATIONS; RELIANCE. Customer is responsible for obtaining, at its cost, permits, import licenses, and other consents in relation to the Equipment, and if requested by Cummins, Customer shall make these permits, licenses, and consents available to Cummins prior to shipment. Customer represents that it is familiar with the Equipment and understands operating instructions and agrees to perform routine maintenance services. Until the balance is paid in full, Customer shall care for the Equipment properly, maintain it in good operating condition, repair and appearance; and Customer shall use it safely and within its rated capacity and only for purpose it was designed. Even if Customer’s purchase of Equipment from Cummins under this Agreement is based, in whole or in part, on specifications, technical information, drawings, or written or verbal advice of any type from third parties, Customer has sole responsibility for the accuracy, correctness and completeness of such specifications, technical information, drawings, or advice.
Cummins make no warranties or representations respecting the accuracy, correctness and completeness of any specifications, technical information, drawings, advice or other information provided by Cummins. Cummins makes no warranties or representations respecting the suitability, fitness for intended use, compatibility, integration or installation of any Equipment supplied under this Agreement. Customer has sole responsibility for intended use, for installation and design and performance where it is part of a power, propulsion, or other system. Limitation of warranties and remedies and all disclaimers apply to all such technical information, drawings, or advice. Customer acknowledges and agrees by accepting delivery of the Equipment that the Equipment purchased is of the size, design, capacity and manufacture selected by the Customer, and that Customer has relied solely on its own judgment in selecting the Equipment.
19. CONFIDENTIALITY. Each party shall keep confidential any information received from the other that is not generally known to the public and at the time of disclosure, would reasonably be understood by the receiving party to be proprietary or confidential, whether disclosed in oral, written, visual, electronic, or other form, and which the receiving party (or agents) learns in connection with this Agreement including, but not limited to: (a) business plans, strategies, sales, projects and analyses; (b) financial information, pricing, and fee structures; (c) business processes, methods, and models; (d) employee and supplier information; (e) specifications; and (f) the terms and conditions of this Agreement. Each party shall take necessary steps to ensure compliance with this provision by its employees and agents.
20. GOVERNING LAW, VENUE, AND JURISDICTION. This Agreement and all matters arising hereunder shall be governed by, interpreted, and construed in accordance with the laws of the State of Indiana without giving effect to any choice or conflict of law provision. The parties agree that the federal and state courts of the State of Indiana shall have exclusive jurisdiction over, regarding, or relating to any dispute or claim arising in connection with this Agreement or any related matter, and hereby waive any right to claim such forum would be inappropriate, including concepts of forum non conveniens.
21. INSURANCE. Upon Customer’s request, Cummins will provide to Customer a Certificate of Insurance evidencing Cummins’ relevant insurance coverage.
22. ASSIGNMENT. This Agreement shall be binding on the parties and their successors and assigns. Customer shall not assign this Agreement without the prior written consent of Cummins.
23. INTELLECTUAL PROPERTY. Any intellectual property rights created by either party, whether independently or jointly, in the course of the performance of this Agreement or otherwise related to Cummins pre-existing intellectual property or subject matter related thereto, shall be Cummins’ property. Customer agrees to assign, and does hereby assign, all right, title, and interest to such intellectual property to Cummins. Any Cummins pre-existing intellectual property shall remain Cummins’ property. Nothing in this Agreement shall be deemed to have given Customer a license or any other rights to use any of the intellectual property rights of Cummins.
24. PRICING. To the extent allowed by law, actual prices invoiced to Customer may vary from the price quoted at the time of order
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Mounted Portable
Quotation: Q-431166-20260316–1152 Page 7
placement, as the same will be adjusted for prices prevailing on the date of shipment due to economic and market conditions at the time of shipment. Subject to local laws, Cummins reserves the right to adjust pricing on goods and services due to input and labor cost changes and/or other unforeseen circumstances beyond Cummins’ control.
25. TARIFF AND DUTY SURCHARGES. In addition to any adjustments otherwise provided for in this Agreement, in the event of any increase in the cost of purchased materials due to the impact of any tariffs, duties, levies, or similar government charges (“Tariffs”) in effect during the term of this Agreement, the parties agree that such increases shall be passed through directly to the Customer effective immediately upon Cummins’ notice to the Customer of such increases. The Customer shall pay Tariff-related increases within thirty (30) days of receipt of invoice.
26. MISCELLANEOUS. Cummins shall be an independent contractor under this Agreement. All notices under this Agreement shall be in writing and be delivered personally, mailed via first class certified or registered mail, or sent by a nationally recognized express courier service to the addresses set forth in this Agreement. No amendment of this Agreement shall be valid unless it is writing and signed by an authorized representative of the parties hereto. Failure of either party to require performance by the other party of any provision hereof shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver by a party of a breach of any of the provisions hereof constitute a waiver of any succeeding breach. Any provision of this Agreement that is invalid or unenforceable shall not affect the validity or enforceability of the remaining terms hereof. These terms are exclusive and constitute the entire agreement. Customer acknowledges that the provisions were freely negotiated and bargained for, and Customer has agreed to purchase of the Equipment pursuant to these Terms and Conditions. Acceptance of this Agreement is expressly conditioned on Customer's assent to all such Terms and Conditions. Neither party has relied on any statement, representation, agreement, understanding, or promise made by the other except as expressly set out in this Agreement. In the event Cummins incurs additional charges hereunder due to the acts or omissions of Customer, the additional charges will be passed on to the Customer, as applicable. Headings or other subdivisions of this Agreement are inserted for convenience of reference and shall not limit or affect the legal construction of any provision hereof. The Parties’ rights, remedies, and obligations under this Agreement which by their nature are intended to continue beyond the termination or cancellation of this Agreement, including but not limited to the Section 16. Limitation of Liability provision contained herein, shall survive the expiration, termination, or cancellation of this Agreement.
27. COMPLIANCE. Customer shall comply with all laws applicable to its activities under this Agreement, including, without limitation, any and all applicable federal, state, and local anti-bribery, environmental, health, and safety laws and regulations then in effect.
Customer acknowledges that the Equipment, and any related technology that are sold or otherwise provided hereunder may be subject to export and other trade controls restricting the sale, export, re-export and/or transfer, directly or indirectly, of such Equipment or technology to certain countries or parties, including, but not limited to, licensing requirements under applicable laws and regulations of the United States, the United Kingdom and other jurisdictions. It is the intention of Cummins to comply with these laws, rules, and regulations. Any other provision of this Agreement to the contrary notwithstanding, Customer shall comply with all such applicable all laws relating to the cross-border movement of goods or technology, and all related orders in effect from time to time, and equivalent measures. Customer shall act as the importer of record with respect to the Equipment and shall not resell, export, re-export, distribute, transfer, or dispose of the Equipment or related technology, directly or indirectly, without first obtaining all necessary written permits, consents, and authorizations and completing such formalities as may be required under such laws, rules, and regulations. In addition, Cummins has in place policies not to distribute its products for use in certain countries based on applicable laws and regulations including but not limited to UN, U.S., UK, and European Union regulations. Customer undertakes to perform its obligations under this Agreement with due regard to these policies. Strict compliance with this provision and all laws of the territory pertaining to the importation, distribution, sales, promotion and marketing of the Equipment is a material consideration for Cummins entering into this Agreement with Customer and continuing this Agreement for its term. Customer represents and warrants that it has not and shall not, directly or through any intermediary, pay, give, promise to give or offer to give anything of value to a government official or representative, a political party official, a candidate for political office, an officer or employee of a public international organization or any other person, individual or entity at the suggestion, request or direction or for the benefit of any of the above-described persons and entities for the purposes of inducing such person to use his influence to assist Cummins in obtaining or retaining business or to benefit Cummins or any other person in any way, and will not otherwise breach any applicable laws relating to anti-bribery. Any failure by Customer to comply with these provisions will constitute a default giving Cummins the right to immediate termination of this Agreement and/or the right to elect not to recognize the warranties associated with the Equipment. Customer shall accept full responsibility for any and all civil or criminal liabilities and costs arising from any breaches of those laws and regulations and will defend, indemnify, and hold Cummins harmless from and against any and all fines, penalties, claim, damages, liabilities, judgments, costs, fees, and expenses incurred by Cummins or its affiliates as a result of Customer’s breach.
28. To the extent applicable, this contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. The employee notice requirements set forth in 29 CFR Part 471, Appendix A to Subpart A, are hereby incorporated by reference into this contract.
092222-CMM
Rev. 3/2022 1
Solicitation Number: RFP #092222
CONTRACT
This Contract is between Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 (Sourcewell) and Cummins Inc., 500 Jackson Street, Box 3005, Columbus, IN 47201 (Supplier).
Sourcewell is a State of Minnesota local government unit and service cooperative created under the laws of the State of Minnesota (Minnesota Statutes Section 123A.21) that offers cooperative procurement solutions to government entities. Participation is open to eligible federal, state/province, and municipal governmental entities, higher education, K-12 education, nonprofit, tribal government, and other public entities located in the United States and Canada.
Sourcewell issued a public solicitation for Electrical Energy Power Generation Equipment with Related Parts, Supplies, and Services from which Supplier was awarded a contract.
Supplier desires to contract with Sourcewell to provide equipment, products, or services to Sourcewell and the entities that access Sourcewell’s cooperative purchasing contracts (Participating Entities).
1. TERM OF CONTRACT
A. EFFECTIVE DATE. This Contract is effective upon the date of the final signature below.
B. EXPIRATION DATE AND EXTENSION. This Contract expires November 22, 2026, unless it is cancelled sooner pursuant to Article 22. This Contract may be extended one additional year upon the request of Sourcewell and written agreement by Supplier.
C. SURVIVAL OF TERMS. Notwithstanding any expiration or termination of this Contract, all payment obligations incurred prior to expiration or termination will survive, as will the following: Articles 11 through 14 survive the expiration or cancellation of this Contract. All other rights will cease upon expiration or termination of this Contract.
2. EQUIPMENT, PRODUCTS, OR SERVICES
A. EQUIPMENT, PRODUCTS, OR SERVICES. Supplier will provide the Equipment, Products, or Services as stated in its Proposal submitted under the Solicitation Number listed above.
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Supplier’s Equipment, Products, or Services Proposal (Proposal) is attached and incorporated into this Contract.
All Equipment and Products provided under this Contract must be new and the current model.
Supplier may offer used, close-out or refurbished Equipment or Products if they are clearly indicated in Supplier’s product and pricing list. Unless agreed to by the Participating Entities in advance, Equipment or Products must be delivered as operational to the Participating Entity’s site.
This Contract offers an indefinite quantity of sales, and while substantial volume is anticipated, sales and sales volume are not guaranteed.
B. WARRANTY. All equipment purchased pursuant to this Contract is governed by the express written manufacturer’s warranty (the “Warranty”) and is the only warranty offered on the equipment. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE WARRANTY, THERE ARE NO
OTHER WARRANTIES, GUARANTEES, OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES PROVIDED IN THE WARRANTY SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY. Supplier further warrants that all Equipment, Products, and Services furnished are free from liens and encumbrances, and are free from defects in design, materials, and workmanship. In addition, Supplier warrants the Equipment, Products, and Services are suitable for and will perform in accordance with the ordinary use for which they are intended. Supplier’s dealers and distributors must agree to assist the Participating Entity in reaching a resolution in any dispute over warranty terms with the manufacturer. Any manufacturer’s warranty that extends beyond the expiration of the Supplier’s warranty will be passed on to the Participating Entity.
C. DEALERS, DISTRIBUTORS, AND/OR RESELLERS. Upon Contract execution and throughout the Contract term, Supplier must provide to Sourcewell a current means to validate or authenticate Supplier’s authorized dealers, distributors, or resellers relative to the Equipment, Products, and Services offered under this Contract, which will be incorporated into this Contract by reference. It is the Supplier’s responsibility to ensure Sourcewell receives the most current information.
3. PRICING
All Equipment, Products, or Services under this Contract will be priced at or below the price stated in Supplier’s Proposal.
When providing pricing quotes to Participating Entities, all pricing quoted must reflect a Participating Entity’s total cost of acquisition. This means that the quoted cost is for delivered Equipment, Products, and Services that are operational for their intended purpose, and includes all costs to the Participating Entity’s requested delivery location.
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Regardless of the payment method chosen by the Participating Entity, the total cost associated with any purchase option of the Equipment, Products, or Services must always be disclosed in the pricing quote to the applicable Participating Entity at the time of purchase.
A. SHIPPING AND SHIPPING COSTS. All delivered Equipment and Products must be properly packaged. Damaged Equipment and Products may be rejected. If the damage is not readily apparent at the time of delivery, Supplier must permit the Equipment and Products to be returned within a reasonable time at no cost to Sourcewell or its Participating Entities.
Participating Entities reserve the right to inspect the Equipment and Products at a reasonable time after delivery where circumstances or conditions prevent effective inspection of the Equipment and Products at the time of delivery. In the event of the delivery of nonconforming Equipment and Products, the Participating Entity will notify the Supplier as soon as possible and the Supplier will replace nonconforming Equipment and Products with conforming Equipment and Products that are acceptable to the Participating Entity.
Supplier must arrange for and pay for the return shipment on Equipment and Products that arrive in a defective or inoperable condition.
Sourcewell may declare the Supplier in breach of this Contract if the Supplier intentionally delivers substandard or inferior Equipment or Products.
B. SALES TAX. Each Participating Entity is responsible for supplying the Supplier with valid tax- exemption certification(s). When ordering, a Participating Entity must indicate if it is a tax- exempt entity.
C. HOT LIST PRICING. At any time during this Contract, Supplier may offer a specific selection of Equipment, Products, or Services at discounts greater than those listed in the Contract.
When Supplier determines it will offer Hot List Pricing, it must be submitted electronically to Sourcewell in a line-item format. Equipment, Products, or Services may be added or removed from the Hot List at any time through a Sourcewell Price and Product Change Form as defined in Article 4 below.
Hot List program and pricing may also be used to discount and liquidate close-out and discontinued Equipment and Products as long as those close-out and discontinued items are clearly identified as such. Current ordering process and administrative fees apply. Hot List Pricing must be published and made available to all Participating Entities.
4. PRODUCT AND PRICING CHANGE REQUESTS
Supplier may request Equipment, Product, or Service changes, additions, or deletions at any time. All requests must be made in writing by submitting a signed Sourcewell Price and Product Change Request Form to the assigned Sourcewell Supplier Development Administrator. This
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approved form is available from the assigned Sourcewell Supplier Development Administrator.
At a minimum, the request must:
x Identify the applicable Sourcewell contract number;
x Clearly specify the requested change;
x Provide sufficient detail to justify the requested change; x Individually list all Equipment, Products, or Services affected by the requested change, along with the requested change (e.g., addition, deletion, price change); and x Include a complete restatement of pricing documentation in Microsoft Excel with the effective date of the modified pricing, or product addition or deletion. The new pricing restatement must include all Equipment, Products, and Services offered, even for those items where pricing remains unchanged.
A fully executed Sourcewell Price and Product Request Form will become an amendment to this Contract and will be incorporated by reference.
5. PARTICIPATION, CONTRACT ACCESS, AND PARTICIPATING ENTITY REQUIREMENTS
A. PARTICIPATION. Sourcewell’s cooperative contracts are available and open to public and nonprofit entities across the United States and Canada; such as federal, state/province, municipal, K-12 and higher education, tribal government, and other public entities.
The benefits of this Contract should be available to all Participating Entities that can legally access the Equipment, Products, or Services under this Contract. A Participating Entity’s authority to access this Contract is determined through its cooperative purchasing, interlocal, or joint powers laws. Any entity accessing benefits of this Contract will be considered a Service Member of Sourcewell during such time of access. Supplier understands that a Participating Entity’s use of this Contract is at the Participating Entity’s sole convenience and Participating Entities reserve the right to obtain like Equipment, Products, or Services from any other source.
Supplier is responsible for familiarizing its sales and service forces with Sourcewell contract use eligibility requirements and documentation and will encourage potential participating entities to join Sourcewell. Sourcewell reserves the right to add and remove Participating Entities to its roster during the term of this Contract.
B. PUBLIC FACILITIES. Supplier’s employees may be required to perform work at government- owned facilities, including schools. Supplier’s employees and agents must conduct themselves in a professional manner while on the premises, and in accordance with Participating Entity policies and procedures, and all applicable laws.
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6. PARTICIPATING ENTITY USE AND PURCHASING
A. ORDERS AND PAYMENT. To access the contracted Equipment, Products, or Services under this Contract, a Participating Entity must clearly indicate to Supplier that it intends to access this Contract; however, order flow and procedure will be developed jointly between Sourcewell and Supplier. Typically, a Participating Entity will issue an order directly to Supplier or its authorized subsidiary, distributor, dealer, or reseller. If a Participating Entity issues a purchase order, it may use its own forms, but the purchase order should clearly note the applicable Sourcewell contract number. All Participating Entity orders under this Contract must be issued prior to expiration or cancellation of this Contract; however, Supplier performance, Participating Entity payment obligations, and any applicable warranty periods or other Supplier or Participating Entity obligations may extend beyond the term of this Contract.
Supplier’s acceptable forms of payment are included in its attached Proposal. Participating Entities will be solely responsible for payment and Sourcewell will have no liability for any unpaid invoice of any Participating Entity.
B. ADDITIONAL TERMS AND CONDITIONS/PARTICIPATING ADDENDUM. Additional terms and conditions to a purchase order, or other required transaction documentation, may be negotiated between a Participating Entity and Supplier, such as job or industry-specific requirements, legal requirements (e.g., affirmative action or immigration status requirements), or specific local policy requirements. Some Participating Entities may require the use of a Participating Addendum, the terms of which will be negotiated directly between the Participating Entity and the Supplier or its authorized dealers, distributors, or resellers, as applicable. Any negotiated additional terms and conditions must never be less favorable to the Participating Entity than what is contained in this Contract.
C. SPECIALIZED SERVICE REQUIREMENTS. In the event that the Participating Entity requires service or specialized performance requirements not addressed in this Contract (such as e- commerce specifications, specialized delivery requirements, or other specifications and requirements), the Participating Entity and the Supplier may enter into a separate, standalone agreement, apart from this Contract. Sourcewell, including its agents and employees, will not be made a party to a claim for breach of such agreement.
D. TERMINATION OF ORDERS. Participating Entities may terminate an order, in whole or in part, immediately upon notice to Supplier in the event of any of the following events:
1. The Participating Entity fails to receive funding or appropriation from its governing body at levels sufficient to pay for the equipment, products, or services to be purchased; or
2. Federal, state, or provincial laws or regulations prohibit the purchase or change the Participating Entity’s requirements.
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E. GOVERNING LAW AND VENUE. The governing law and venue for any action related to a Participating Entity’s order will be determined by the Participating Entity making the purchase.
7. CUSTOMER SERVICE
A. PRIMARY ACCOUNT REPRESENTATIVE. Supplier will assign an Account Representative to Sourcewell for this Contract and must provide prompt notice to Sourcewell if that person is changed. The Account Representative will be responsible for:
x Maintenance and management of this Contract;
x Timely response to all Sourcewell and Participating Entity inquiries; and x Business reviews to Sourcewell and Participating Entities, if applicable.
B. BUSINESS REVIEWS. Supplier must perform a minimum of one business review with Sourcewell per contract year. The business review will cover sales to Participating Entities, pricing and contract terms, administrative fees, sales data reports, performance issues, supply issues, customer issues, and any other necessary information.
8. REPORT ON CONTRACT SALES ACTIVITY AND ADMINISTRATIVE FEE PAYMENT
A. CONTRACT SALES ACTIVITY REPORT. Each calendar quarter, Supplier must provide a contract sales activity report (Report) to the Sourcewell Supplier Development Administrator assigned to this Contract. Reports are due no later than 45 days after the end of each calendar quarter. A Report must be provided regardless of the number or amount of sales during that quarter (i.e., if there are no sales, Supplier must submit a report indicating no sales were made).
The Report must contain the following fields:
x Participating Entity Name (e.g., City of Staples Highway Department); x Participating Entity Physical Street Address;
x Participating Entity City;
x Participating Entity State/Province;
x Participating Entity Zip/Postal Code;
x Participating Entity Contact Name;
x Participating Entity Contact Email Address;
x Participating Entity Contact Telephone Number;
x Sourcewell Assigned Entity/Participating Entity Number; x Item Purchased Description;
x Item Purchased Price;
x Sourcewell Administrative Fee Applied; and
x Date Purchase was invoiced/sale was recognized as revenue by Supplier.
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B. ADMINISTRATIVE FEE. In consideration for the support and services provided by Sourcewell, the Supplier will pay an administrative fee to Sourcewell on all Equipment, Products, and Services provided to Participating Entities. The Administrative Fee must be included in, and not added to, the pricing. Supplier may not charge Participating Entities more than the contracted price to offset the Administrative Fee.
The Supplier will submit payment to Sourcewell for the percentage of administrative fee stated in the Proposal multiplied by the total sales of all Equipment, Products, and Services purchased by Participating Entities under this Contract during each calendar quarter. Payments should note the Supplier’s name and Sourcewell-assigned contract number in the memo; and must be mailed to the address above “Attn: Accounts Receivable” or remitted electronically to Sourcewell’s banking institution per Sourcewell’s Finance department instructions. Payments must be received no later than 45 calendar days after the end of each calendar quarter.
Supplier agrees to cooperate with Sourcewell in auditing transactions under this Contract to ensure that the administrative fee is paid on all items purchased under this Contract.
In the event the Supplier is delinquent in any undisputed administrative fees, Sourcewell reserves the right to cancel this Contract and reject any proposal submitted by the Supplier in any subsequent solicitation. In the event this Contract is cancelled by either party prior to the Contract’s expiration date, the administrative fee payment will be due no more than 30 days from the cancellation date.
9. AUTHORIZED REPRESENTATIVE
Sourcewell's Authorized Representative is its Chief Procurement Officer.
Supplier’s Authorized Representative is the person named in the Supplier’s Proposal. If Supplier’s Authorized Representative changes at any time during this Contract, Supplier must promptly notify Sourcewell in writing.
10. AUDIT, ASSIGNMENT, AMENDMENTS, WAIVER, AND CONTRACT COMPLETE
A. AUDIT. Pursuant to Minnesota Statutes Section 16C.05, subdivision 5, the books, records, documents, and accounting procedures and practices relevant to this Contract are subject to examination by Sourcewell or the Minnesota State Auditor for a minimum of six years from the end of this Contract. This clause extends to Participating Entities as it relates to business conducted by that Participating Entity under this Contract.
B. ASSIGNMENT. Neither party may assign or otherwise transfer its rights or obligations under this Contract without the prior written consent of the other party and a fully executed
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assignment agreement. Such consent will not be unreasonably withheld. Any prohibited assignment will be invalid.
C. AMENDMENTS. Any amendment to this Contract must be in writing and will not be effective until it has been duly executed by the parties.
D. WAIVER. Failure by either party to take action or assert any right under this Contract will not be deemed a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right. Any such waiver must be in writing and signed by the parties.
E. CONTRACT COMPLETE. This Contract represents the complete agreement between the parties. No other understanding regarding this Contract, whether written or oral, may be used to bind either party. For any conflict between the attached Proposal and the terms set out in Articles 1-22 of this Contract, the terms of Articles 1-22 will govern.
F. RELATIONSHIP OF THE PARTIES. The relationship of the parties is one of independent contractors, each free to exercise judgment and discretion with regard to the conduct of their respective businesses. This Contract does not create a partnership, joint venture, or any other relationship such as master-servant, or principal-agent.
11. INDEMNITY AND HOLD HARMLESS
Supplier must indemnify, defend, save, and hold Sourcewell and its Participating Entities, including their agents and employees, harmless from any third party claims or causes of action, including attorneys’ fees incurred by Sourcewell or its Participating Entities, arising out of any negligent act or omission or willful misconduct in the performance of this Contract by the Supplier or its agents or employees; this indemnification includes injury or death to person(s) or property alleged to have been caused by some defect in the Equipment, Products, or Services under this Contract to the extent the Equipment, Product, or Service has been used according to its specifications. To the maximum extent permitted by law, in no event will Supplier be liable under this Contract for consequential, incidental, or special damages, including without limitation any lost opportunity damages or lost profits, or savings, loss of use, loss of data, or downtime, even if it has been advised of their possible existence. Sourcewell’s responsibility will be governed by the State of Minnesota’s Tort Liability Act (Minnesota Statutes Chapter 466) and other applicable law.
12. GOVERNMENT DATA PRACTICES
Supplier and Sourcewell must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to all data provided by or provided to Sourcewell
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under this Contract and as it applies to all data created, collected, received, maintained, or disseminated by the Supplier under this Contract.
13. INTELLECTUAL PROPERTY, PUBLICITY, MARKETING, AND ENDORSEMENT
A. INTELLECTUAL PROPERTY
1. Grant of License. During the term of this Contract:
a. Sourcewell grants to Supplier a royalty-free, worldwide, non-exclusive right and license to use the trademark(s) provided to Supplier by Sourcewell in advertising and promotional materials for the purpose of marketing Sourcewell’s relationship with Supplier.
b. Supplier grants to Sourcewell a royalty-free, worldwide, non-exclusive right and license to use Supplier’s trademarks in advertising and promotional materials for the purpose of marketing Supplier’s relationship with Sourcewell.
2. Limited Right of Sublicense. The right and license granted herein includes a limited right of each party to grant sublicenses to their respective subsidiaries, distributors, dealers, resellers, marketing representatives, and agents (collectively “Permitted Sublicensees”) in advertising and promotional materials for the purpose of marketing the Parties’ relationship to Participating Entities. Any sublicense granted will be subject to the terms and conditions of this Article. Each party will be responsible for any breach of this Article by any of their respective sublicensees.
3. Use; Quality Control.
a. Neither party may alter the other party’s trademarks from the form provided and must comply with removal requests as to specific uses of its trademarks or logos.
b. Each party agrees to use, and to cause its Permitted Sublicensees to use, the other party’s trademarks only in good faith and in a dignified manner consistent with such party’s use of the trademarks. Upon written notice to the breaching party, the breaching party has 30 days of the date of the written notice to cure the breach or the license will be terminated.
4. Termination. Upon the termination of this Contract for any reason, each party, including Permitted Sublicensees, will have 30 days to remove all Trademarks from signage, websites, and the like bearing the other party’s name or logo (excepting Sourcewell’s pre-printed catalog of suppliers which may be used until the next printing). Supplier must return all marketing and promotional materials, including signage, provided by Sourcewell, or dispose of it according to Sourcewell’s written directions.
B. PUBLICITY. Any publicity regarding the subject matter of this Contract must not be released without prior written approval from the Authorized Representatives. Publicity includes notices, informational pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Supplier individually or jointly with others, or any subcontractors, with respect to the program, publications, or services provided resulting from this Contract.
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C. MARKETING. Any direct advertising, marketing, or offers with Participating Entities must be approved by Sourcewell. Send all approval requests to the Sourcewell Supplier Development Administrator assigned to this Contract.
D. ENDORSEMENT. The Supplier must not claim that Sourcewell endorses its Equipment, Products, or Services.
14. GOVERNING LAW, JURISDICTION, AND VENUE
The substantive and procedural laws of the State of Minnesota will govern this Contract. Venue for all legal proceedings arising out of this Contract, or its breach, must be in the appropriate state court in Todd County, Minnesota or federal court in Fergus Falls, Minnesota.
15. FORCE MAJEURE
Neither party to this Contract will be held responsible for delay or default caused by acts of God or other conditions that are beyond that party’s reasonable control. A party defaulting under this provision must provide the other party prompt written notice of the default.
16. SEVERABILITY
If any provision of this Contract is found by a court of competent jurisdiction to be illegal, unenforceable, or void then both parties will be relieved from all obligations arising from that provision. If the remainder of this Contract is capable of being performed, it will not be affected by such determination or finding and must be fully performed.
17. PERFORMANCE, DEFAULT, AND REMEDIES
A. PERFORMANCE. During the term of this Contract, the parties will monitor performance and address unresolved contract issues as follows:
1. Notification. The parties must promptly notify each other of any known dispute and work in good faith to resolve such dispute within a reasonable period of time. If necessary, Sourcewell and the Supplier will jointly develop a short briefing document that describes the issue(s), relevant impact, and positions of both parties.
2. Escalation. If parties are unable to resolve the issue in a timely manner, as specified above, either Sourcewell or Supplier may escalate the resolution of the issue to a higher level of management. The Supplier will have 30 calendar days to cure an outstanding issue.
3. Performance while Dispute is Pending. Notwithstanding the existence of a dispute, the Supplier must continue without delay to carry out all of its responsibilities under the Contract that are not affected by the dispute. If the Supplier fails to continue without delay to perform its responsibilities under the Contract, in the accomplishment of all undisputed
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work, the Supplier will bear any additional costs incurred by Sourcewell and/or its Participating Entities as a result of such failure to proceed.
B. DEFAULT AND REMEDIES. Either of the following constitutes cause to declare this Contract, or any Participating Entity order under this Contract, in default:
1. Nonperformance of contractual requirements, or
2. A material breach of any term or condition of this Contract.
The party claiming default must provide written notice of the default, with 30 calendar days to cure the default. Time allowed for cure will not diminish or eliminate any liability for liquidated or other damages. If the default remains after the opportunity for cure, the non-defaulting party may:
x Exercise any remedy provided by law or equity, or
x Terminate the Contract or any portion thereof, including any orders issued against the Contract.
18. INSURANCE
A. REQUIREMENTS. At its own expense, Supplier must maintain insurance policy(ies) in effect at all times during the performance of this Contract with insurance company(ies) licensed or authorized to do business in the State of Minnesota having an “AM BEST” rating of A- or better, with coverage and limits of insurance not less than the following:
1. Workers’ Compensation and Employer’s Liability.
Workers’ Compensation: As required by any applicable law or regulation.
Employer's Liability Insurance: must be provided in amounts not less than listed below:
Minimum limits:
$500,000 each accident for bodily injury by accident
$500,000 policy limit for bodily injury by disease
$500,000 each employee for bodily injury by disease
2. Commercial General Liability Insurance. Supplier will maintain insurance covering its operations, with coverage on an occurrence basis, and must be subject to terms no less broad than the Insurance Services Office (“ISO”) Commercial General Liability Form CG0001 (2001 or newer edition), or equivalent. At a minimum, coverage must include liability arising from premises, operations, bodily injury and property damage, independent contractors, products-completed operations including construction defect, contractual liability, blanket contractual liability, and personal injury and advertising injury. All required limits, terms and conditions of coverage must be maintained during the term of this Contract.
Minimum Limits:
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$1,000,000 each occurrence Bodily Injury and Property Damage $1,000,000 Personal and Advertising Injury
$2,000,000 aggregate for products liability-completed operations $2,000,000 general aggregate
3. Commercial Automobile Liability Insurance. During the term of this Contract, Supplier will maintain insurance covering all owned, hired, and non-owned automobiles in limits of liability not less than indicated below. The coverage must be subject to terms no less broad than ISO Business Auto Coverage Form CA 0001 (2010 edition or newer), or equivalent.
Minimum Limits:
$1,000,000 each accident, combined single limit
4. Umbrella Insurance. During the term of this Contract, Supplier will maintain umbrella coverage over Employer’s Liability, Commercial General Liability, and Commercial Automobile.
Minimum Limits:
$2,000,000
5. Professional/Technical, Errors and Omissions, and/or Miscellaneous Professional Liability. During the term of this Contract, Supplier will maintain coverage for all claims the Supplier may become legally obligated to pay resulting from any actual or alleged negligent act, error, or omission related to Supplier’s professional services required under this Contract.
Minimum Limits:
$2,000,000 per claim or event
$2,000,000 – annual aggregate
6. Network Security and Privacy Liability Insurance. During the term of this Contract, Supplier will maintain coverage for network security and privacy liability. The coverage may be endorsed on another form of liability coverage or written on a standalone policy. The insurance must cover claims which may arise from failure of Supplier’s security resulting in, but not limited to, computer attacks, unauthorized access, disclosure of not public data – including but not limited to, confidential or private information, transmission of a computer virus, or denial of service.
Minimum limits:
$2,000,000 per occurrence
$2,000,000 annual aggregate
Failure of Supplier to maintain the required insurance will constitute a material breach entitling Sourcewell to immediately terminate this Contract for default.
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B. CERTIFICATES OF INSURANCE. Prior to commencing under this Contract, Supplier must furnish to Sourcewell a certificate of insurance, as evidence of the insurance required under this Contract. Prior to expiration of the policy(ies), renewal certificates must be mailed to Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 or sent to the Sourcewell Supplier Development Administrator assigned to this Contract. The certificates must be signed by a person authorized by the insurer(s) to bind coverage on their behalf.
Failure to request certificates of insurance by Sourcewell, or failure of Supplier to provide certificates of insurance, in no way limits or relieves Supplier of its duties and responsibilities in this Contract.
C. ADDITIONAL INSURED ENDORSEMENT AND PRIMARY AND NON-CONTRIBUTORY INSURANCE CLAUSE. Supplier agrees to list Sourcewell and its Participating Entities, including their officers, agents, and employees, as an additional insured under the Supplier’s commercial general liability insurance policy with respect to liability arising out of activities, “operations,” or “work” performed by or on behalf of Supplier, and products and completed operations of Supplier. The policy provision(s) or endorsement(s) must further provide that coverage is primary and not excess over or contributory with any other valid, applicable, and collectible insurance or self-insurance in force for the additional insureds.
D. WAIVER OF SUBROGATION. Supplier waives and must require (by endorsement or otherwise) all its insurers to waive subrogation rights against Sourcewell and other additional insureds for losses paid under the insurance policies required by this Contract or other insurance applicable to the Supplier or its subcontractors. The waiver must apply to all deductibles and/or self-insured retentions applicable to the required or any other insurance maintained by the Supplier or its subcontractors. Where permitted by law, Supplier must require similar written express waivers of subrogation and insurance clauses from each of its subcontractors.
E. UMBRELLA/EXCESS LIABILITY/SELF-INSURED RETENTION. The limits required by this Contract can be met by either providing a primary policy or in combination with umbrella/excess liability policy(ies), or self-insured retention.
19. COMPLIANCE
A. LAWS AND REGULATIONS. All Equipment, Products, or Services provided under this Contract must comply fully with applicable federal laws and regulations, and with the laws in the states and provinces in which the Equipment, Products, or Services are sold.
B. LICENSES. Supplier must maintain a valid and current status on all required federal, state/provincial, and local licenses, bonds, and permits required for the operation of the business that the Supplier conducts with Sourcewell and Participating Entities.
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20. BANKRUPTCY, DEBARMENT, OR SUSPENSION CERTIFICATION
Supplier certifies and warrants that it is not in bankruptcy or that it has previously disclosed in writing certain information to Sourcewell related to bankruptcy actions. If at any time during this Contract Supplier declares bankruptcy, Supplier must immediately notify Sourcewell in writing.
Supplier certifies and warrants that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from programs operated by the State of Minnesota; the United States federal government or the Canadian government, as applicable; or any Participating Entity. Supplier certifies and warrants that neither it nor its principals have been convicted of a criminal offense related to the subject matter of this Contract. Supplier further warrants that it will provide immediate written notice to Sourcewell if this certification changes at any time.
21. PROVISIONS FOR NON-UNITED STATES FEDERAL ENTITY PROCUREMENTS UNDER
UNITED STATES FEDERAL AWARDS OR OTHER AWARDS
Participating Entities that use United States federal grant or FEMA funds to purchase goods or services from this Contract may be subject to additional requirements including the procurement standards of the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, 2 C.F.R. § 200. Participating Entities may have additional requirements based on specific funding source terms or conditions. Within this Article, all references to “federal” should be interpreted to mean the United States federal government.
The following list only applies when a Participating Entity accesses Supplier’s Equipment, Products, or Services with United States federal funds.
A. EQUAL EMPLOYMENT OPPORTUNITY. Except as otherwise provided under 41 C.F.R. § 60, all contracts that meet the definition of “federally assisted construction contract” in 41 C.F.R. § 60-
1.3 must include the equal opportunity clause provided under 41 C.F.R. §60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. §, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 C.F.R. § 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” The equal opportunity clause is incorporated herein by reference.
B. DAVIS-BACON ACT, AS AMENDED (40 U.S.C. § 3141-3148). When required by federal program legislation, all prime construction contracts in excess of $2,000 awarded by non- federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. § 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 C.F.R. § 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to
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laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-federal entity must report all suspected or reported violations to the federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by Department of Labor regulations (29 C.F.R. § 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-federal entity must report all suspected or reported violations to the federal awarding agency. Supplier must be in compliance with all applicable Davis-Bacon Act provisions.
C. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (40 U.S.C. § 3701-3708). Where applicable, all contracts awarded by the non-federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. §§ 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. § 5).
Under 40 U.S.C. § 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. § 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. This provision is hereby incorporated by reference into this Contract. Supplier certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Supplier must comply with applicable requirements as referenced above.
D. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT. If the federal award meets the definition of “funding agreement” under 37 C.F.R. § 401.2(a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the recipient or subrecipient must comply with the requirements of 37 C.F.R. § 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency. Supplier certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Supplier must comply with applicable requirements as referenced above.
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E. CLEAN AIR ACT (42 U.S.C. § 7401-7671Q.) AND THE FEDERAL WATER POLLUTION CONTROL ACT (33 U.S.C. § 1251-1387). Contracts and subgrants of amounts in excess of $150,000 require the non-federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. § 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. § 1251- 1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).
Supplier certifies that during the term of this Contract will comply with applicable requirements as referenced above.
F. DEBARMENT AND SUSPENSION (EXECUTIVE ORDERS 12549 AND 12689). A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 C.F.R. §180 that implement Executive Orders 12549 (3 C.F.R. § 1986 Comp., p. 189) and 12689 (3 C.F.R. § 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. Supplier certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency.
G. BYRD ANTI-LOBBYING AMENDMENT, AS AMENDED (31 U.S.C. § 1352). Suppliers must file any required certifications. Suppliers must not have used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Suppliers must disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the non-federal award. Suppliers must file all certifications and disclosures required by, and otherwise comply with, the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352).
H. RECORD RETENTION REQUIREMENTS. To the extent applicable, Supplier must comply with the record retention requirements detailed in 2 C.F.R. § 200.333. The Supplier further certifies that it will retain all records as required by 2 C.F.R. § 200.333 for a period of 3 years after grantees or subgrantees submit final expenditure reports or quarterly or annual financial reports, as applicable, and all other pending matters are closed.
I. ENERGY POLICY AND CONSERVATION ACT COMPLIANCE. To the extent applicable, Supplier must comply with the mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act.
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J. BUY AMERICAN PROVISIONS COMPLIANCE. To the extent applicable, Supplier must comply with all applicable provisions of the Buy American Act. Purchases made in accordance with the Buy American Act must follow the applicable procurement rules calling for free and open competition.
K. ACCESS TO RECORDS (2 C.F.R. § 200.336). Supplier agrees that duly authorized representatives of a federal agency must have access to any books, documents, papers and records of Supplier that are directly pertinent to Supplier’s discharge of its obligations under this Contract for the purpose of making audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to Supplier’s personnel for the purpose of interview and discussion relating to such documents.
L. PROCUREMENT OF RECOVERED MATERIALS (2 C.F.R. § 200.322). A non-federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. § 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
M. FEDERAL SEAL(S), LOGOS, AND FLAGS. The Supplier cannot use the seal(s), logos, crests, or reproductions of flags or likenesses of Federal agency officials without specific pre-approval.
N. NO OBLIGATION BY FEDERAL GOVERNMENT. The U.S. federal government is not a party to this Contract or any purchase by a Participating Entity and is not subject to any obligations or liabilities to the Participating Entity, Supplier, or any other party pertaining to any matter resulting from the Contract or any purchase by an authorized user.
O. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS. The Contractor acknowledges that 31 U.S.C. 38 (Administrative Remedies for False Claims and Statements) applies to the Supplier’s actions pertaining to this Contract or any purchase by a Participating Entity.
P. FEDERAL DEBT. The Supplier certifies that it is non-delinquent in its repayment of any federal debt. Examples of relevant debt include delinquent payroll and other taxes, audit disallowance, and benefit overpayments.
Q. CONFLICTS OF INTEREST. The Supplier must notify the U.S. Office of General Services, Sourcewell, and Participating Entity as soon as possible if this Contract or any aspect related to
092222-CMM
Rev. 3/2022 18
the anticipated work under this Contract raises an actual or potential conflict of interest (as described in 2 C.F.R. Part 200). The Supplier must explain the actual or potential conflict in writing in sufficient detail so that the U.S. Office of General Services, Sourcewell, and Participating Entity are able to assess the actual or potential conflict; and provide any additional information as necessary or requested.
R. U.S. EXECUTIVE ORDER 13224. The Supplier, and its subcontractors, must comply with U.S.
Executive Order 13224 and U.S. Laws that prohibit transactions with and provision of resources and support to individuals and organizations associated with terrorism.
S. PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT. To the extent applicable, Supplier certifies that during the term of this Contract it will comply with applicable requirements of 2 C.F.R. § 200.216.
T. DOMESTIC PREFERENCES FOR PROCUREMENTS. To the extent applicable, Supplier certifies that during the term of this Contract will comply with applicable requirements of 2 C.F.R. § 200.322.
22. CANCELLATION
Sourcewell or Supplier may cancel this Contract at any time, with or without cause, upon 60 days’ written notice to the other party. However, Sourcewell may cancel this Contract immediately upon discovery of a material defect in any certification made in Supplier’s Proposal. Cancellation of this Contract does not relieve either party of financial, product, or service obligations incurred or accrued prior to cancellation.
Sourcewell Cummins Inc.
By: __________________________ By: __________________________ Jeremy Schwartz James Stalnaker
Title: Chief Procurement Officer Title: National Accounts Sales Director
Date: ________________________
Date: ________________________
092222-CMM
Rev. 3/2022 19
Approved:
By: __________________________
Chad Coauette
Title: Executive Director/CEO
Date: ________________________
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Bid Number: RFP 092222 Vendor Name: Cummins Inc.