Tuesday, February 14, 2023
7:00 PM
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Revised Agenda
Ord. No. 1912 Reso. No. 2023-008
Grover W. Taylor Council Chambers
City Council Meeting
Acquanetta Warren - Mayor
Peter A. Garcia - Mayor Pro Tem
John B. Roberts - Council Member
Jesus "Jesse" Sandoval - Council Member
Phillip Cothran - Council Member
Germaine McClellan Key - City Clerk
Janet Koehler-Brooks, City Treasurer
1 City Council Meeting Revised Agenda February 14, 2023 Welcome to a meeting of the Fontana City Council.
Welcome to a meeting of the Fontana City Council. A complete agenda packet is located in the binder on the table in the lobby of the Grover W. Taylor Council Chambers 8353 Sierra Avenue Fontana, CA 92335. To address the Council, please fill out a card located at the entrance to the right indicating your desire to speak on either a specific agenda item or under Public Communications and give it to the City Clerk. Your name will be called when it is your turn to speak. In compliance with Americans with Disabilities Act of 1990 (42 USC § 12132), the Grover W. Taylor Council Chambers 8353 Sierra Avenue Fontana, CA 92335 is wheelchair accessible, and a portable microphone is available. Upon request, this agenda will be made available in appropriate alternative forms to persons with disabilities, as required by Section 12132 of the Americans with Disabilities Act of 1990. Any person with a disability who requires a modification or accommodation in order to participate in a meeting should direct such a request to the City Clerk ’s Office at ( 909) 350-7602 at least 48 hours before the meeting, if possible. Any public record, relating to an open session agenda item, that is distributed within 72 hours prior to the meeting is available for public inspection in the Grover W. Taylor Council Chambers 8353 Sierra Avenue Fontana, CA 92335.
Traduccion en Espa ñol disponible a peticion. Favor de notificar al Departamento "City Clerk".
Para mayor informacion, favor de marcar el numero (909) 350-7602.
PUBLIC COMMUNICATION - CLOSED SESSION:
This is an opportunity for citizens to speak to the City Council for up to 3 minutes on the following Closed Session. The Mayor and City Council reserve the right to adjust this time limit based on the number of speakers who wish to address the Mayor and City Council.
A. Public Communications - Closed Session
CLOSED SESSION:
A. 6:00 P.M. CLOSED SESSION
2 City Council Meeting Revised Agenda February 14, 2023 A. CONFERENCE WITH LEGAL COUNSEL – EXISTING
LITIGATION
(Gov. Code Section 54956.9(d)(1))
Name of case: Samir Marroush v. David Michael Goodland, City of Fontana, et al.
Case #: CIVDS2011421
CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED
LITIGATION
(Gov. Code Section 54956.9(d)(4))
Initiation of Litigation: One Potential Case
PUBLIC EMPLOYEE APPOINTMENT
(Gov. Code Section 54957(b)(1))
Title: Police Chief
CONFERENCE WITH LEGAL COUNSEL - EXISTING
LITIGATION
(Gov. Code section 54956.9(d)(1))
David Moore/Andrew Anderson, et al. v. City of Fontana, et al.,
San Bernardino County Superior Court
Case No. CIVDS 1610471
21-2011
CALL TO ORDER/ROLL CALL:
A. 7:00 P.M. Call To Order/Roll Call:
INVOCATION/PLEDGE OF ALLEGIANCE:
A. Invocation/Pledge of Allegiance:
SPECIAL PRESENTATIONS:
3 City Council Meeting Revised Agenda February 14, 2023 A. A. Mayor Warren and City Council to recognize outgoing Planning Commissioner Matthew Gordon and outgoing Parks, Community and Human Services Commissioner's Ricardo
Quintana and Anahi Perez (Mayor Warren to present).
B. Mayor Warren and City Council to recognize Sergeant's Brandon Bowie and Kyle Guthrie; Corporal Tyler Burton;
Officer's Andrew Davis, Nolan Falconieri, Adrian Garcia, Jose Morales, and Alex Yanez as the Fontana Police Department 2022 Employees of the Year (Captain Burton to present).
C. Mayor Warren to swear in Officers Nathaniel Beltran, Albert Charco Jr ., Dominick Delgado-Oramas, Benjamin Eguabor, Cassandra Gonzalez, Gustavo Lazcano, Cipriano Lopez,
Manuel Munoz, Kyrha Radford, and Brian Zozaya (Chief Green to present).
D. Police Chief Green to present the Police Department 2022 Annual Report.
21-1998
PUBLIC COMMUNICATIONS:
This is an opportunity for members of the public to address the City Council for up to three ( 3) minutes total on items either on the Agenda or items not on the Agenda, but within the City Council's jurisdiction. Note that Public Hearing items have individual and specific public input opportunities during the public hearing and testimony on those items will only be taken during the public hearing. The Council is prohibited by law from discussing or taking immediate action on non-agendized items. The Mayor and City Council reserve the right to adjust this time limit based on the number of speakers who wish to address the Mayor and City Council .
A. Public Communications
CONSENT CALENDAR:
All matters listed under CONSENT CALENDAR will be enacted by one motion in the form listed below. There will be no separate discussion on these items prior to the time Council votes on them, unless a member of the Council requests a specific item be removed from the Consent Calendar for discussion.
A. Approval of Minutes 21-1992
January 24, 2023 City Council Meeting Minutes.pdfAttachments:
4 City Council Meeting Revised Agenda February 14, 2023 B. Amend Administrative Policy 20-13, Public Records Policy to the City of Fontana’s Administrative Policy and Procedures. 21-1959
Reso 2023-008.docx
Administrative Policy PRAdocx.docx
Attachments:
C. Award bid for Classification and Compensation Study
Services (SP-04-HR-23) for Human Resources
21-1962
Scoring Matrix.pdf
Fontana Proposal Public Sector Personnel Consultants-2.pdf Attachments:
D. Approve Replacement of Securities for Tract No. 20230 Located East of Palmetto Avenue and North of Merrill Avenue 21-1988
Subdivision Improvement AgreementAttachments:
E. Final Acceptance of Sierra Avenue and Segovia Lane Offsite Improvements for Tract No. 18944 Located East of Sierra Avenue and North of Segovia Lane
21-1772
Tract Map
Vicinity Map
Resolution 2023-009
Attachments:
F. Approve Replacement of Securities for Tract No. 16898 Located South of Merrill Avenue and East of Catawba Avenue 21-1989
Subdivision Improvement AgreementAttachments:
G. Conveyance Agreement - Homeless Prevention and Resource Center property (APNs: 0232-171-09, - 12, - 13, - 14 and 0232-171-05, - 06, - 07, and - 08); and make findings of exemption under the California Environmental Quality Act (CEQA).
21-2002
Conveyance Agreement with VulcanAttachments:
H. Agreement for Exchange of Real Property and Joint Escrow Instructions - NH Southridge LLC ; and make findings of exemption under the California Environmental Quality Act (CEQA).
21-1993
Southridge - Agreement for Exchange of Real PropertyAttachments:
5 City Council Meeting Revised Agenda February 14, 2023 I. Award bid for Third Party Administrator for Workers ’ Compensation Program
21-1999
CC Reso 2023-010; RFP-TPA Award Letter to JT2.doc
Scoring Matrix.pdf
Scope of Work.pdf
JT2 Agreement SP-90-HR-22.pdf
Attachments:
Approve Consent Calendar Items as recommended by staff.
CITY MANAGER COMMUNICATIONS:
A. City Manager Communications
ELECTED OFFICIALS COMMUNICATIONS/REPORTS:
A. Elected Officials Communications/Reports
ADJOURNMENT:
A. Adjournment
Adjourn to the next Regular City Council Meeting on February 28, 2023, at 7:00 p.m. in the Grover W. Taylor Council Chambers located at 8353 Sierra Avenue, Fontana, California.
6 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2011 Agenda Date: 2/14/2023
Agenda #: A. Category: Closed Session
Closed Session
Tuesday, February 14, 2023
6:00 P.M.
City Hall - Executive Conference Room
City Council
Acquanetta Warren, Mayor
Peter Garcia, Mayor Pro Tem
John Roberts, Council Member
Jesus “Jesse” Sandoval, Council Member
Phillip W. Cothran., Council Member
City of Fontana Printed on 2/8/2023Page 1 of 1
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7 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1998 Agenda Date: 2/14/2023
Agenda #: A. Category: Special Presentation
Special Presentations
Tuesday, February 14, 2023
7:00 P.M.
Grover W. Taylor Council Chambers
City Council
Acquanetta Warren, Mayor
Peter Garcia, Mayor Pro Tem
John Roberts, Council Member
Jesus “Jesse” Sandoval, Council Member
Phillip W. Cothran., Council Member
City of Fontana Printed on 2/6/2023Page 1 of 1
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8 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1992 Agenda Date: 2/14/2023
Agenda #: A. Category: Consent Calendar
FROM:
City Clerk
SUBJECT:
Approval of Minutes
RECOMMENDATION:
Approve the minutes of the January 24, 2023, Regular City Council Meeting COUNCIL GOALS:
· Create and maintain a dynamic team by supporting the decisions of the majority once made.
· Create and maintain a dynamic team by promoting stability and predictability by providing consistent policy direction.
DISCUSSION:
The City Council will consider approval of the minutes of the January 24, 2023, City Council Meeting.
The draft minutes are attached to this report for Council review and approval.
FISCAL IMPACT:
None.
MOTION:
Approve staff recommendation
City of Fontana Printed on 2/6/2023Page 1 of 1
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9 Tuesday, January 24, 2023
7:00 PM
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Grover W. Taylor Council Chambers
City Council Meeting
Acquanetta Warren - Mayor
Peter A. Garcia - Mayor Pro Tem
John B. Roberts - Council Member
Jesus "Jesse" Sandoval - Council Member
Phillip Cothran - Council Member
Germaine McClellan Key - City Clerk
Janet Koehler-Brooks, City Treasurer
Minutes
10 WORKSHOP:
A. 5:00 P.M. City Council Workshop
The Workshop meeting of the Fontana City Council was held on Tuesday, January 24, 2023, in the Grover W. Taylor Council Chambers at 8353 Sierra Avenue, Fontana, CA 92335. Mayor Pro Tem Garcia called the meeting to order at 5:02 p.m., with all members of the City Council present with the exception of Mayor Warren who was excused.
No items were pulled for agenda review.
No members of the public were present for public communications.
Public Works Director / City Engineer Gia Kim introduced Arlene Chun, San Bernardino County Engineering Manager to present the NPDES MS4 Permit Overview.
Following this presentation, Deputy City Manager Ray Ebert provided a brief Strategic Plan on the Municipal Code Review.
The workshop adjourned at 5:28 p.m.
CLOSED SESSION:
A. 6:00 P.M. CLOSED SESSION
The Closed Session meeting of the Fontana City Council was held on Tuesday, January 24, 2023, in the Executive Conference Room at 8353 Sierra Avenue, Fontana, CA 92335.
Mayor Warren called the meeting to order at 6:00 p.m., with all members of the City Council present.
PUBLIC COMMUNICATION - CLOSED SESSION:
11 City Council Meeting Minutes January 24, 2023
A. Public Communications - Closed Session
There were no public communications received on the following Closed Session items:
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
(Gov. Code Section 54956.9(d)(1))
Name of Case: City of Fontana vs. Jonathan Cory
Claim #: 190600049
CONFERENCE WITH REAL PROPERTY NEGOTIATORS
(Gov. Code section 54956.8)
Property: APN # 0191-162-35 and 0191-162-34
City Negotiator: Phillip Burum, Deputy City Manager
Negotiating Party: Michael D Gay
Under Negotiating: Price and Terms of payment
CONFERENCE WITH REAL PROPERTY NEGOTIATORS
(Gov. Code section 54956.8)
Property: APN # 0191-151-08
City Negotiator: Phillip Burum, Deputy City Manager
Negotiating Party: Wilen Family Trust
Under Negotiating: Price and Terms of payment
CONFERENCE WITH REAL PROPERTY NEGOTIATORS
(Gov. Code section 54956.8)
Property: APN’s 1108-072-01 thru -16 and 1108-074-01 thru -16 City Negotiator: Ray Ebert, Deputy City Manager
Negotiating Parties: Diversified Pacific Communities
Under Negotiation: Price and terms of payment
CALL TO ORDER/ROLL CALL:
A. 7:00 P.M. Call To Order/Roll Call:
The Regular meeting of the Fontana City Council was held on Tuesday, January 24, 2023, in the Grover W. Taylor Council chambers located at 8353 Sierra Avenue, Fontana, CA 92335.
Mayor Warren called the meeting to order at 7:07 p.m.
ROLL CALL:
PRESENT: Mayor Warren, Mayor Pro Tem Garcia, Council Members Cothran, Roberts, and Sandoval
ABSENT: None
City Clerk Key and City Treasurer Koehler-Brooks were also in attendance.
12 City Council Meeting Minutes January 24, 2023
INVOCATION/PLEDGE OF ALLEGIANCE:
A. Invocation/Pledge of Allegiance:
The invocation was led by Fontana Police Department Chaplain Deylyne McCampbell, followed by the Pledge of Allegiance led by Mayor Pro Tem Garcia.
PROCLAMATION:
A. 21-1934
1. Mayor Warren and City Council to proclaim the month of January 2023 as National Mentoring Month (Marina Uriarte, Senior Regional Director of Big Brother, Big Sister to present).
Senior Regional Director Marina Uriarte accepted the proclamation from the Mayor and City Council.
SPECIAL PRESENTATIONS:
A. 21-1935
1. Mayor Warren and City Council to recognize Officer Gus Moreno, Administrative Analyst I Justice Montgomery, and Administrative Technician's Cassandra Pimentel and Taryn Sandford as the Fontana Police Department December 2022 Employees of the Month (Captain Michael Dorsey and Administrative Support Services Manager Michelle Blank to present).
Mayor Warren and City Council recognized the December 2022 Employees of the Month, thanking them for their service to the community.
2. Mayor Warren and City Council to recognize Scarlett Harrod for community clean up efforts (Mayor Warren
to present).
Mayor Warren, City Council and City staff recognized Scarlett Harrod for her acts of kindness.
Mayor Warren announced that the City Council will be adjourning tonight's meeting in honor of the victims of the recent mass shootings in Monterey Park and Half Moon Bay, along with Riverside County Sheriff Deputies Darnell Calhoun and Isaiah Cordero.
PUBLIC COMMUNICATIONS:
13 City Council Meeting Minutes January 24, 2023
A. Public Communications
The following individuals spoke under public communications:
1. Beto Hernandez, sent his condolences to the victims and families of the most recent mass shootings.
2. Alex Rivera, spoke on unsafe streets in neighborhood due to lack of sidewalks.
3. Carlos Rodriquez, representative of BIA, spoke in support of Consent Calendar Item 'H'.
4. Bobbi Jo Chavarria, commented on asking for better collaboration with local groups on housing and mentioned recent County appointments.
5. Christopher Martinez, commented on Consent Calendar Item 'C' asking for more research and partnership with social equity programs.
CLOSED SESSION ANNOUNCEMENT
City Attorney Duran reported that the City Council met in Closed Session on the items listed on the agenda and took no reportable action.
14 City Council Meeting Minutes January 24, 2023
CONSENT CALENDAR:
City Clerk Key noted for the record that staff received one (1) letter in support of Consent Calendar Item 'H'.
Mayor Pro Tem Garcia asked for Consent Calendar Item 'H' to be pulled for questions of staff .
Deputy City Manager Phil Burum clarified comments regarding scope and timeline.
Mayor Pro Tem Garcia placed a recommendation on the floor for Consent Calendar Item 'H' as follows:
'to include building permits that were pulled as of October 1, 2022' City Attorney Duran noted for the record that staff has provided Council with a memo on Consent Calendar Item 'H' for modifications to the Resolution presented in the staff report .
Such memo was also made available to the public in the foyer.
Council Member Cothran asked a clarifying question around the reduction of 50%. Deputy City Manager Burum clarified that the 50% would be complimented to any existing agreement.
City Attorney Duran noted that the change from Mayor Pro Tem would alter Section 5 in the Resolution to read as follows, 'This program will apply to all residential permits issued between the dates of October 1, 2022, and July 31, 2023...'
Mayor Warren than identified that Section 6 would also now include the multifamily projects, as outlined in red from staff's memo.
Deputy City Manager Burum also identified the change in Section 2 from six (6) months to ten (10) months.
Council Member Sandoval asked for clarification on potential impact to the general fund going 10 months back, rather than the initial proposed 6 months. Deputy City Manager Burum provided comments.
ACTION: Motion was made by Mayor Pro Tem Garcia, seconded by Council Member Cothran, and passed unanimously by a vote of 5-0 to approve Consent Calendar Items 'A-O' with the modifications to Consent Calendar Item 'H'. The motion carried by the following vote: AYES: Warren, Garcia, Cothran, Roberts, and Sandoval; NOES: None; ABSTAIN: None
A. Approval of Minutes 21-1961
Approve the minutes of the December 12, 2022, Special City Council Meeting and the December 13, 2022, Regular City Council Meeting.
15 City Council Meeting Minutes January 24, 2023
B. Acceptance of Final Map for Parcel Map No. 20250 and Abandonment of a Certain Portion of Right of Way of Boyle Avenue 21-1892
Accept Parcel Map No. 20250 located north of Slover Avenue, west of Juniper Avenue, east of Cypress Avenue, and south of the I-10 Freeway; accept as public dedicated streets and easements; and authorize the Mayor and City Clerk to certify the abandonment of a certain portion of right of way of Boyle Avenue.
C. Resolutions Establishing Cannabis Hours of Operation and Permit Integrity Process Standards
21-1900
1. Adopt Resolution 2023-002, Establishing Cannabis Hours of Operation; and,
2. Adopt Resolution 2023-003, Establishing Cannabis Permit Integrity Process Standards
3. Find that these actions are not a project subject to the California Environmental Quality Act (CEQA)
D. Police Department Donations July - December 2022 21-1940 Accept monetary and gift donations from multiple donors including community programs, businesses, and citizens.
E. Authorize the purchase of a CNG Freightliner M2 Dump Body Claw Truck.
21-1941
Authorize the Purchasing Office to use the Sourcewell Cooperative Purchasing Agreement (Contract #40621-PII) for the purchase of one (1) 2024 Freightliner 114SD from Municipal Maintenance Equipment in the amount of $315,156.58, plus sales tax $24,424.63 and CA tire fee $10.50 for a total of $339,591.71.
F. Officer Wellness and Mental Health Grant Award 21-1943 · Accept the Officer Wellness and Mental Health Grant Award in the amount of $136,204.04 from BSCC (Board of State and Community Corrections).
· Increase revenues in the amount of $136,204.04; and appropriate $136,204.04 in Grant Fund #301, Project #40100002-301-A.
G. Award Center Stage Audio Visual System Update..End
RECOMMENDATION:
21-1945
Award bid and authorize the City Manager to execute a contract with Matrix Audio Visual Designs to provide equipment and services to upgrade the audio and video technology located in the Center Stage Theater in the amount of $935,183.87 and a 6.5% Contingency in the amount of $60,786.96.
H. Temporary Reduction of Development Impact Fees 21-1946 Adopt Resolution No. 2023-004, a resolution of the City Council of the City of Fontana temporarily reducing existing development impact fees for residential construction within the City.
16 City Council Meeting Minutes January 24, 2023
I. 2021 Edward Bryne Memorial Justice Assistance Grant (JAG) 21-1952
1. Approve the Interlocal Agreement with the Town of Apple Valley, the Cities of Adelanto, Apple Valley, Barstow, Chino, Colton, Fontana, Hesperia, Highland, Montclair, Ontario, Rancho Cucamonga, Redlands, Rialto, San Bernardino, Upland, Victorville, and the County of San Bernardino, concerning distribution of the 2021 Edward Byrne Memorial Justice Assistance Grant (JAG) in the amount of $54,155;
2. Authorize the City Manager to sign the Interlocal Agreement on behalf of the City of Fontana for the 2021 Justice Assistance Grant and any other documents and/or amendments required to comply with this grant award;
3. Approve allocation of funds to purchase law enforcement equipment to assist in responding to or investigate crimes.
4. Increase revenues in the amount of $51,447; and appropriate $51,447 in Grant Fund #301, Project #40200004-301-A.
J. 2022 Edward Bryne Memorial Justice Assistance Grant (JAG) 21-1953
1. Approve the Interlocal Agreement with the Town of Apple Valley, the Cities of Adelanto, Apple Valley, Barstow, Chino, Colton, Fontana, Hesperia, Highland, Montclair, Ontario, Rancho Cucamonga, Redlands, Rialto, San Bernardino, Upland, Victorville, and the County of San Bernardino, concerning distribution of the 2022 Edward Byrne Memorial Justice Assistance Grant (JAG) in the amount of $54,036;
2. Authorize the City Manager to sign the Interlocal Agreement on behalf of the City of Fontana for the 2022 Justice Assistance Grant and any other documents and/or amendments required to comply with this grant award;
3. Approve allocation of funds to purchase law enforcement equipment to assist in responding to or investigate crimes.
4. Increase revenues in the amount of $51,334 and appropriate $51,334 in Grant Fund #301, Project #40300007-301-A.
17 City Council Meeting Minutes January 24, 2023
K. Approve Resolution Authorizing the City of Fontana to pick-up certain Employee Contributions to the City’s PTS-OBRA Plan pursuant to IRS Code Section 414(h)(2)
21-1955
1. Adopt Resolution No. 2023-005, for the employer pick-up of certain employee contributions to the City ’s PTS-OBRA Plan pursuant to Internal Revenue Code section 414(h)(2).
2. Authorize the City Manager and appropriate members of City staff to execute any and all plan documents, subsequent agreements and any other related items, and to take all reasonable and necessary actions, on behalf of the City to carry out and implement the resolution
L. City of Fontana's Single Audit Report (SAR) for Fiscal Year ended June 30, 2021.
21-1958
Receive and File the City of Fontana’s Single Audit Financial Report for Fiscal Year ended June 30, 2021.
M. Pre-Paid Card Marketing and Processing Agreement - FiCentive, Inc.
21-1960
To approve the card processing vendor agreement for the Fontana Eats resident grant program and assign delegation authority to the City Manager and appointee for program implementation.
N. Adding Eligible Capital Improvement Project to Development Impact Fee Project ListK
21-1965
Adopt Resolution No. 2023-006, a resolution of the City Council of the City of Fontana delegating authority to the City Manager or their designee to add eligible Capital Improvement Projects (CIP) to the Development Impact Fee Project List (DIF LIST) and taking other actions relating thereto.
O. Purchase and Sale agreement for Parcels 0232-201-012 and 0232-201-013
21-1964
1. Approve a Purchase & Sale Agreement for the purchase of vacant land located South of Arrow Blvd between Tokay Avenue and Citrus Avenue in the city of Fontana, more specifically described as APNs #0232-201-012, 0232-201-013 in the amount of $3,040,000 plus interest.
2. Authorize the City Manager to execute any documents necessary or appropriate to effectuate said approvals and/or Purchase & Sale Agreement.
3. Authorize the City Manager, in coordination with the City Attorney, to make non-material, clarifying and conforming changes as needed to complete signing.
PUBLIC HEARINGS:
18 City Council Meeting Minutes January 24, 2023
A. Resolution Establishing Cannabis Fees 21-1899
Mayor Warren opened the public hearing.
City Clerk Key noted for the record that there were no written correspondences received.
Deputy City Manager Burum provided the staff report.
The following individuals spoke on this item:
1. Bobbi Jo Chavarria, commented on SB 1439 and concerning conflicts of interest.
City Attorney Duran interjected and clarified that the FPPC has provided a letter declaring that SB 1439 does not apply to campaign contributions received before January 1, 2023.
Bobbi Jo Chavarria continued with her comments on the process and tailoring for larger businesses over small businesses.
2. Pedro Ordonis, cannabis owner and operator, stated that the business license fee is too high; and suggested that the renewal fee be higher to offset start up costs for businesses. Clarified that he's in support of the item but opposes the fee calculations.
3. Beto Hernadnez, spoke in opposition of this item for the children.
4. Evan Webb, spoke in opposition of this item due to the fee structure .
5. Christopher Martinez, spoke in support of this item.
Following public communication, Deputy City Manager Burum clarified the reasoning of the fee selection and Council Member Cothran asked for clarification on refunds to applicants that are not selected.
Mayor Warren closed the public hearing.
ACTION: Motion was made by Mayor Pro Tem Garcia, seconded by Council Member Roberts, and passed by a vote of 4-1 to approve Public Hearing Item 'A' as follows:
Adopt Resolution No. 2023-001, Establishing Cannabis Fees; and Find that the activity is not a project subject to the California Environmental Quality Act (CEQA).
19 City Council Meeting Minutes January 24, 2023
The motion carried by the following vote: AYES: Warren, Garcia, Cothran and Roberts; NOES: Sandoval; ABSTAIN: None
B. 21-1924
Conduct Public Hearing, Hear and Pass on Protests, Determine Whether to Discontinue and Abandon Certain Parkland or to Terminate Discontinuance Proceedings
Mayor Warren opened the public hearing.
City Clerk Key noted for the record that staff received one (1) letter in support and twenty-nine (29) letters in opposition of this item.
Deputy City Manager Burum presented the staff report and answered questions of the City Council.
The following individuals spoke in opposition of this item:
1. Neredia Gonzalez
2. Angel Ramirez
3. Joaquin Castellejos
4. Evan Webb
5. Samantha Herrera
6. Bobbi Jo Chavarria
7. Elizabeth Sena
The following individual spoke in support of this item:
8. Matt Slowick
Following public comment, Deputy City Manager Burum provided some clarifying remarks following comments made.
ACTION: Motion was made by Council Member Roberts, seconded by Mayor Pro Tem Garcia, and passed by a vote of 4-1 to approve Public Hearing Item 'B' as follows:
Adoption of a Resolution No. 2023-007, of the City Council of the City of Fontana Discontinuing and Abandoning Certain Parkland to Allow for the Conveyance of Park Property in Exchange for Privately Owned Property (Government Code Section 38440 et seq.)
Determination that the City Council’s actions are exempt from CEQA.
The motion carried by the following vote: AYES: Warren, Garcia, Cothran and Roberts; NOES: Sandoval; ABSTAIN: None
20 City Council Meeting Minutes January 24, 2023
NEW BUSINESS:
A. Appointment of Mayor Pro Tem 21-1831
Consider an appointment of a Council Member to the position of Mayor Pro Tem for a one-year term.
ACTION: Motion was made by Mayor Warren, seconded by Council Member Cothran, and passed by a vote of 4-1 to approve New Business Item 'A' as follows:
Appoint Peter Garcia as Mayor Pro Tem for a term of one-year The motion carried by the following vote:AYES: Warren, Garcia, Cothran and Roberts; NOES: Sandoval; ABSTAIN: None
CITY MANAGER COMMUNICATIONS:
A. City Manager Communications
City Manager Ballantyne announced upcoming community events.
In addition, the following two ad hoc advisory boards have been created at the request of City Manager Ballantyne:
1. Finance Sub-Committee (Members: Mayor Warren and Mayor Pro Tem Garcia)
2. Infrastructure Sub-Committee (Members: Mayor Pro Tem Garcia and Council Member Cothran)
ELECTED OFFICIALS COMMUNICATIONS/REPORTS:
21 City Council Meeting Minutes January 24, 2023
A. 21-1982
Discussion and Possible Action Regarding Appointment to the Parks, Community, and Human Services Commission and Planning Commission for a two-year term
The following applicants were slated for appointment:
Parks, Community, and Human Services Commission
1. Fay Glass
2. Armando Valles
3. Dylan Kettle
4. Torrie Lozano
5. Benjamin Alba
Planning Commission
1. Cathline Fort
2. Raj Sangha
3. Idilio Sanchez
4. Ralph Thrasher
5. Ricardo Quintana
ACTION: Motion was made by Mayor Warren, seconded by Mayor Pro Tem Garcia to approve the appointments of said individuals for a two-year term. The motion carried by a 4-1 vote as follows: AYES: Warren, Garcia, Cothran and Roberts; NOES: Sandoval; ABSTAIN: None
22 City Council Meeting Minutes January 24, 2023
B. 21-1939
23 City Council Meeting Minutes January 24, 2023
Discussion and Possible Action Regarding Appointing Regular and Alternate Members to Local Agencies / Regional Boards
The following item was to appoint a Regular and Alternate member for local organizations for a term of one-year:
1. SBCTA & SBCOG
ACTION: Motion was made by Council Member Cothran, seconded by Council Member Roberts, to appoint Mayor Warren as the Regular Member. The motion carried by a vote of 4-1 as follows: AYES: Warren, Garcia, Cothran, and Roberts; NOES: Sandoval; ABSTAIN: None
ACTION: Motion was made by Mayor Warren, seconded by Council Member Roberts, to appoint Mayor Pro Tem Garcia, as Alternate Member. The motion carried by a vote of 4-1 as follows: AYES: Warren, Garcia, Cothran, and Roberts; NOES: Sandoval; ABSTAIN: None
2. Inland Empire Utility Agency (IEUA) - Regional Sewage Program Policy Committee
ACTION: Motion was made by Mayor Warren, seconded by Mayor Pro Tem Garcia, to appoint Council Member Cothran as the Regular Member. The motion carried by a vote of 4-1 as follows: AYES: Warren, Garcia, Cothran, and Roberts; NOES: Sandoval; ABSTAIN: None
ACTION: Motion was made by Mayor Warren, seconded by Council Member Cothran, to appoint Council Member Roberts as the Alternate Member. The motion carried by a unanimous vote of 5-0 as follows: AYES: Warren, Garcia, Cothran, Roberts, and Sandoval; NOES: None; ABSTAIN: None
3. Omintrans Board of Directors
ACTION: Motion was made by Mayor Warren, seconded by Council Member Cothran, to appoint Council Member Roberts as the Regular Member. The motion carried by a unanimous vote of 5-0 as follows: AYES: Warren, Garcia, Cothran, Roberts, and Sandoval; NOES: None; ABSTAIN: None ACTION: Motion was made by Mayor Warren, seconded by Council Member Roberts, to appoint Council Member Cothran as the Alternate Member. The motion carried by a vote of 4-1 as follows: AYES: Warren, Garcia, Cothran, and Roberts; NOES: Sandoval; ABSTAIN: None
4. San Bernardino County Flood Control Zone 1 and 2 Advisory Committees (ZAC)
ACTION: Motion was made by Mayor Warren, seconded by Council Member Cothran, to appoint Council Member Roberts as the Regular Member. The
24 City Council Meeting Minutes January 24, 2023
motion carried by a unanimous vote of 5-0 as follows: AYES: Warren, Garcia, Cothran, Roberts, and Sandoval; NOES: None; ABSTAIN: None ACTION: Motion was made by Mayor Warren, seconded by Council Member Roberts, to appoint Mayor Pro Tem Garcia, as Alternate Member. The motion carried by a vote of 4-1 as follows: AYES: Warren, Garcia, Cothran, and Roberts; NOES: Sandoval; ABSTAIN: None
5. San Bernardino County Solid Waste Advisory Task (SWAT) Force ACTION: Motion was made by Mayor Warren, seconded by Council Member Cothran, to appoint Mayor Pro Tem Garcia, as Regular Member. The motion carried by a vote of 4-1 as follows: AYES: Warren, Garcia, Cothran, and Roberts; NOES: Sandoval; ABSTAIN: None
ACTION: Motion was made by Council Member Cothran, seconded by Council Member Roberts, to appoint Mayor Warren, as Alternate Member. The motion carried by a vote of 4-1 as follows: AYES: Warren, Garcia, Cothran, and Roberts; NOES: Sandoval; ABSTAIN: None
6. Southern California Association of Governments (SCAG) ACTION: Motion was made by Council Member Roberts, seconded by Mayor Pro Tem Garcia, to appoint Mayor Warren as the Regular Member. The motion carried by a vote of 4-1 as follows: AYES: Warren, Garcia, Cothran, and Roberts; NOES: Sandoval; ABSTAIN: None
ACTION: Motion was made by Mayor Warren, seconded by Council Member Roberts, to appoint Council Member Cothran as the Alternate Member. The motion carried by a vote of 4-1 as follows: AYES: Warren, Garcia, Cothran, and Roberts; NOES: Sandoval; ABSTAIN: None
25 City Council Meeting Minutes January 24, 2023
21-2003
City Treasurer Koehler-Brooks wished Council Member Cothran and Council Member Sandoval a happy birthday and wished everyone a Happy New Year.
City Clerk Key wished Council Member Cothran and Council Member Sandoval a happy birthday, along with sending condolences to the victims families of the recent mass shootings in Monterey Park and Half Moon Bay.
Council Member Cothran thanked everyone for the birthday wishes, commented on recent IEUA Board activities, and provided a brief update on the contract with the Fire District and SB County Fire.
Council Member Cothran gave a quick shout out to Finance Director Jessica Brown for ensuring that the City budget and finances are running smoothly.
Thanked staff for a great 2022 and looking forward to working along side the community and staff in 2023. Closed with wishing Council Member Sandoval a happy birthday.
Mayor Pro Tem Garcia wished Council Member Cothran and Council Member Sandoval a happy birthday and mentioned recent attendance at an event that provided a home to a deserving veteran, sponsored by Lennar Homes for their operation 'Finally Home'. Provided a shout out to the Police Department for their assistance in selecting this veteran for this deserving reward.
Council Member Sandoval wished Council Member Cothran a happy birthday; welcomed his daughter Theresa; sends his condolences to the victims families involved in the recent mass shootings in Monterey Park and Half Moon Bay; sends his condolences to the law enforcement family for the recent loss of Riverside County Sheriff Deputies Darnell Calhoun and Isaiah Cordero.
Council Member Roberts wished Council Member Cothran and Council Member Sandoval a happy birthday and sent his condolences to the victims families involved in the recent mass shootings in Monterey Park and Half Moon Bay; and sends his condolences to the law enforcement family for the recent loss of Riverside County Sheriff Deputies Darnell Calhoun and Isaiah Cordero.
Mayor Warren noted that tonight's meeting will be adjourned in honor of the victims involved in the recent mass shootings in Monterey Park and Half Moon Bay, recent honor of performing the commencement speech at the San Bernardino County Sheriff Department; commented on unity with law enforcement; spoke on Consent Calendar Item 'M'; announced recent attendance at the U.S. Conference of Mayors; spoke on recent community events; and highlighted the upcoming State of the City event.
ADJOURNMENT:
26 City Council Meeting Minutes January 24, 2023
A. Adjournment
Mayor Warren and City Council led a moment of silence in memory of the victims of the recent mass shootings in Monterey Park and Half Moon Bay; David W. Long, Etiwanda School District Board of Trustees, along with the Riverside County Sheriff Deputies Darnell Calhoun and Isaiah Cordero.
Mayor Warren adjourned the meeting at 9:38 p.m. to the next Regular City Council Meeting on Tuesday, February 14, 2023, at 7:00 p.m. in the Grover W. Taylor Council Chambers located at 8353 Sierra Avenue, Fontana, California. ______________________________
Ashton R. Arocho, MMC
Deputy City Clerk
THE FOREGOING MINUTES WERE ADOPTED AND APPROVED BY THE FONTANA CITY COUNCIL MEETING OF FEBRUARY 14, 2023.
_____________________________
Germaine Key
City Clerk
27 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1959 Agenda Date: 2/14/2023
Agenda #: B. Category: Consent Calendar
FROM:
City Clerk
SUBJECT:
Amend Administrative Policy 20-13, Public Records Policy to the City of Fontana’s Administrative Policy and Procedures.
RECOMMENDATION:
Adopt Resolution 2023-008 of the City of Fontana, amending Administrative Policy Section 20-13 (Public Records).
COUNCIL GOALS:
· To operate in a businesslike manner by becoming more service oriented. · To create a team by working together to provide stability and consistent policy direction. · To create a team by ensuring commissions work within clear guidelines to achieve Council goals.
· To operate in a businesslike manner by improving services through the effective use of technology.
DISCUSSION:
On July 26, 2022, the City Council amended Administrative Policy 20-13 establishing guidelines for the handling of public records requests. The action before the City Council, is to consider the amendment to remove CD/ DVD/ Flash Drive copy fees from the policy. The recommended change is needed as the City no longer supports these features within IT.
With the attached resolution, staff is recommending updating the Administrative Policy, section 20-13, Public Records.
FISCAL IMPACT:
None.
MOTION:
Approve staff recommendation.
City of Fontana Printed on 2/6/2023Page 1 of 1
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28 Resolution No. 2022-068
Attachment A
Purpose:
To establish a procedure and policy for handling public records request s under the California Public Records Act,: to ensure thorough, timely, and coordinated responses to public records requests and provide guidelines for providing information requested under the Cal ifornia Public Records Act.
General Policy:
Requests for records will be processed in accordance with the laws governing the release of public information. It will be the responsibility of the Deputy City Clerk to administer the public records request policy for all departments except the Police Department. All records requests shall be forwarded to the Deputy City Clerk for review and response; the Police Department shall handle records request pursuant to their Police Department Policy.
General Guidelines:
A. The City shall always make public records open for inspection during the City’s regular business hours. Under enumerated provisions of the California Public Records Act, certain public records may be exempt from disclosure. Public records which are determined by the Deputy City Clerk to be exempt from disclosure will not be made available for public inspection.
B. All persons seeking to review records may submit a request using the City’s official website.
The City will also accept written requests on a form provided by the City. The City will also accept records request that are: (1) submitted through email, (2) received by telephone, or (3) verbal requests. City staff may suggest that the requestor complete the City public records form. However, the requestor is not required to complete the form in order to inspect public records or receive copies of public records.
C. The City must reply to the requester, no later than 10 calendar days from receipt of the request, and provide a written determination for the request . If the request is received after business hours or on a weekend or holiday, the next business day will be considered the official date of
SECTION
City of Fontana
ADMINISTRATIVE PROCEDURE
Administration 20-13
APPROVED
SUBJECT:
Public Records Requests
PAGE 1 of 2 Resolution 2022-068
LAST UPDATED July 26.2022
29 receipt. If the tenth calendar day falls on a weekend or holiday, the next business day will be the deadline for responding to the request. If the City exercises the right to extend the date for providing a written determination for a records request beyond the 10-day period, the City must do so in writing, stating the reason(s) for the extension and the anticipated date of the response within the 14 -day extension period, pursuant to the criteria in Government Code section 6253© and beginning January 1, 2023, Government Code section 7922.535 ©.
D. If there is a question about the clarity of the request, City staff are encouraged to contact the requester at the earliest opportunity to clarify the request. City staff must assist the member of the public to make a focused and effective request.
E. The City is not legally required under the Public Records Act to, create any new records or information, including a privilege log in response to a Public Records Request.
F. The CPRA does not create an obligation to answer questions presented by a requester. It merely requires the City to provide existing public records that are not otherwise exempt from disclosure.
G. Email and text messages will be treated the same as other public records. If an email or text message is kept according to the City’s records retention policy in the ordinary course of business, and it constitutes a public record, it is subject to disclosure, unless it falls within an exemption.
H. Copies of an official buildi ng plan will not be produced by the City until the City receives written permission to duplicate the plans from (i) the licensed professional who prepared the plan(s) and (ii) the building owner. However, building plans are open to inspection during regula r business hours at the City’s Building Department.
I. Copy Fees (Cash payment or check payment made payable to City of Fontana)
Election Filing Forms
Per Resolution 1992-60
$0.10 per page
Photocopies-Black & White
Per Resolution 1998-117
Copied Using Copier Feeder $0.20 for the first page and $0.05 for each additional page
Photocopies-Color
Per Resolution 2010-122
Copied Using Copier Feeder $0.50 for the first page and $0.40 for each additional page
CD/DVD/Flash Drive
Actual cost of the item
Electronic Format
There is no fee for providing records in electronic format via email. The City may, however, charge for the cost of duplication if a requester wishes to have a physical copy of records.
30 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1962 Agenda Date: 2/14/2023
Agenda #: C. Category: Consent Calendar
FROM:
Human Resources
SUBJECT:
Award bid for Classification and Compensation Study Services (SP-04-HR-23) for Human Resources RECOMMENDATION:
1. Award bid (SP-04-HR-23) and authorize the City Manager to execute a contract with Public Sector Personnel Consultants for the amount of not to exceed $250,000 for the Classification and Compensation Study.
2. Approve and authorize the City Manager to execute any future amendments to the contract.
COUNCIL GOALS:
· Operate in a businesslike manner by ensuring that the public debate is based on accurate information.
· Practice sound fiscal management by living within our means while investing in the future.
· Create and maintain a dynamic team by promoting stability and predictability by providing consistent policy direction.
DISCUSSION:
The City provides compensation and job descriptions for all full-time and part-time staff. The comprehensive compensation and classification study will involve the review and evaluation of the classification structure; make recommendations on appropriate updates; draft classification specifications to meet standards; conduct compensation and positions analysis; assess operational efficiency to make recommendations to enhance usage of existing personnel; and report findings.
The Purchasing Office issued an RFP for Classification and Compensation Study Services (SP-04- HR-23), 113 vendors were notified from the city's online bid system and three (3) submitted proposals. The Evaluation Committee reviewed the proposals based on the criteria outlined in the RFP (Qualifications of Firm, Technical Approach, and Fee Structure).
Staff is recommending Public Sector Personnel Consultants to be awarded the contract for the Compensation and Classification Study. Staff is impressed with credentials and services that Public Sector Personnel Consultants provides including their references of recent studies and services rendered to other municipal agencies that the City compares salary analysis and surveys.
FISCAL IMPACT:
Funds have been budgeted in the Human Resources Department for Fiscal Year 2022/23.
City of Fontana Printed on 2/6/2023Page 1 of 2
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31 File #: 21-1962 Agenda Date: 2/14/2023
Agenda #: C. Category: Consent Calendar
MOTION:
Approve staff recommendation.
City of Fontana Printed on 2/6/2023Page 2 of 2
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32 Firms Total Score
Public Sector Personnel Consultants
Los Angeles, CA
$250,000
86%
The Segal Group
Glendale, CA
$270,000
61%
Evergreen Solutions
Tallahassee, FL
$94,000
59%
Classification and Compensation Study
SP-04-HR-23
33 FACTOR WEIGHT SCORE
(0-4)
WEIGHT SCORE
1. QUALIFICATIONS OF
COMPANY/CONSULTANT
Relevant Experience of Firm 20% 2.0 10%
Reputation of Firm (Based on
references) 5% 2.0 3%
Qualifications of Personnel
(Experience, training, etc.) 25% 2.5 16%
2. TECHNICAL APPROACH
Responsiveness to meet or
exceed scope of services 25% 3.0 19%
Ability to communicate service
in an organized, clear, and
concise manner
10% 2.0 5%
3. SERVICE SCHEDULE
List of Ancillary Services they
Provided are Disclosed 15% 2.0 8%
TOTAL 100% 2.3 59%
SCORING MATRIX
Classification and Compensation Study
SP-04-HR-23
Evergreen Solutions
Please rate the proposal for each criterion below, using a scale of 0 through 4, where 0=unacceptable; 1=poor; 2=fair; 3=good; 4=excellent. Provide details on each criterion scored 0 or 1.
SCORE: 0=Unacceptable 1=Poor 2=Fair 3=Good 4= Excellent 34 FACTOR WEIGHT SCORE
(0-4)
WEIGHT SCORE
1. QUALIFICATIONS OF
COMPANY/CONSULTANT
Relevant Experience of Firm 20% 4.0 20%
Reputation of Firm (Based on
references) 5% 4.0 5%
Qualifications of Personnel
(Experience, training, etc.) 25% 3.5 22%
2. TECHNICAL APPROACH
Responsiveness to meet or
exceed scope of services 25% 3.5 22%
Ability to communicate service
in an organized, clear, and
concise manner
10% 3.0 8%
3. SERVICE SCHEDULE
List of Ancillary Services they
Provided are Disclosed 15% 2.5 9%
TOTAL 100% 3.4 86%
Please rate the proposal for each criterion below, using a scale of 0 through 4, where 0=unacceptable; 1=poor; 2=fair; 3=good; 4=excellent. Provide details on each criterion scored 0 or 1.
SCORE: 0=Unacceptable 1=Poor 2=Fair 3=Good 4= Excellent Public Sector Personnel Consultants
SCORING MATRIX
Classification and Compensation Study
SP-04-HR-23
35 FACTOR WEIGHT SCORE
(0-4)
WEIGHT SCORE
1. QUALIFICATIONS OF
COMPANY/CONSULTANT
Relevant Experience of Firm 20% 2.0 10%
Reputation of Firm (Based on
references) 5% 2.0 3%
Qualifications of Personnel
(Experience, training, etc.) 25% 2.5 16%
2. TECHNICAL APPROACH
Responsiveness to meet or
exceed scope of services 25% 3.0 19%
Ability to communicate service
in an organized, clear, and
concise manner
10% 2.0 5%
3. SERVICE SCHEDULE
List of Ancillary Services they
Provided are Disclosed 15% 2.5 9%
TOTAL 100% 2.3 61%
The Segal Group
Please rate the proposal for each criterion below, using a scale of 0 through 4, where 0=unacceptable; 1=poor; 2=fair; 3=good; 4=excellent. Provide details on each criterion scored 0 or 1.
SCORE: 0=Unacceptable 1=Poor 2=Fair 3=Good 4= Excellent
SCORING MATRIX
Classification and Compensation Study
SP-04-HR-23
36 PROPOSAL TO CONDUCT A
CLASSIFICATION AND COMPENSATION STUDY
FOR THE
CITY OF FONTANA
JULY 2022
PREPARED BY
Matthew Weatherly, President
37 PROPOSAL TO CONDUCT A
CLASSIFICATION AND COMPENSATION STUDY
FOR THE CITY OF FONTANA
TABLE OF CONTENTS
Section Page
1 LETTER OF TRANSMITTAL 1
2 QUALIFICATIONS OF OUR FIRM
HISTORY AND FACTS ABOUT OUR FIRM 2
RECENT CALIFORNIA EMPLOYERS SERVED 3
RECENT MUNICIPAL EMPLOYERS SERVED 3
3 QUALIFICATIONS OF OUR STAFF
PROJECT TEAM ORGANIZATION CHART 4
RESUMES OF PROJECT TEAM MEMBERS 4
4 CLIENT REFERENCES 7
5 WORK STATEMENT - SCOPE OF WORK
SUMMARY OF SERVICES 8
PROJECT SCOPE AND METHODOLOGY 9
A. OBJECTIVES OF THE PROJECT 9
B. SCOPE OF THE PROJECT 9
C. PROJECT METHODOLOGY 9
1. Quality Assurance 9
2. Project Planning Meetings and Communication Plan Development 9 D. POSITION CLASSIFICATION ANALYSIS 10
1. Review of Essential Tasks – Job Analysis Questionnaire 10
2. Employee Job Information Interviews 10
3. FLSA Status Determination 10
4. Position Classification 10
5. Updated Job Descriptions 11
6. Draft Classification Plan Reviews 11
E. TOTAL COMPENSATION SURVEY AND ANALYSIS 11
1. City Involvement in Compensation Plan Development 11
2. Comprehensive Compensation Surveys 11
3. Prevailing Rates Calculation 12
4. Compensation Competitiveness Comparison 12
F. COMPENSATION PLAN DEVELOPMENT 12
1. Compensation Competitiveness Policy 12
2. Salary Plan Structure Development 12
3. Salary Range Assignment Development 13
4. Implementation Plan Development 13
G. ENSURING THE CITY’S SELF-SUFFICIENCY 13
H. EXTENSIVE EMPLOYEE INCLUSION AND COMMUNICATION 13
I. MINIMAL CITY SUPPORT REQUIRED 13
J. FINAL REPORTS AND PRESENTATIONS 14
PROJECT TIMELINE ILLUSTRATION – GANTT CHART 15
6 AUTHORIZED AGENT 16
COST PROPOSAL (separate file) -
PSPC BROCHURES – COMMUNICATING THE PROJECT; EZ COMPTM APPLICATION
Please visit www.pspc.us for work samples and additional resources
PUBLIC SECTOR PERSONNEL CONSULTANTS
38 PROPOSAL TO CONDUCT A
CLASSIFICATION AND COMPENSATION STUDY
FOR THE CITY OF FONTANA
LETTER OF TRANSMITTAL
________________________________________________
PUBLIC SECTOR PERSONNEL CONSULTANTS
39 July 7, 2022
*Addendum 7/7/2022 acknowledged
Project Selection Team
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Dear Selection Team,
Pursuant to your request, we are pleased to provide you with a proposal and qualifications to assist the City with a classification and compensation study. We specialize in the se services and have implemented classif ication and compensation plans for more than 1, 100 public employers nationwide, includi ng more than 450 municipal employers and over 100 public employers in California.
Current and recently completed stud ies include tho se for the Cit ies of Riverside, Colt on, San Bernardino , Banning, Ventura, Huntington Beach, Escondido, San Clemente, San Juan Capistrano , Montebello, Thousand Oaks, Bell Gardens, La Verne, Westlake Village, Azusa, and Salinas.
We believe our firm is uniquely qualified for thi s study. We will utilize only full -time, certified Human Resources professionals for the study, with combined greater than 100 years of experience in the fields of human resources, compensation, and labor relations. We have been providing customized classification and consulting services to the public sector since 1991.
Our proposed approach will be customize d to meet the City’s needs. We are confident tha t our extensive public employers classification and compensation experience , knowledge of public employe rs in California, la rge specialized and highly qualified full-time staff, p roven methods, unique EZ COMP TM application to ensure your self-sufficiency, and one year of implementation support and assistance at no cost, will achi eve all of the City’s objectives for an important project of this nature.
Thank you for your interest in ou r firm’s services. If we can provide any additional information, such as samples of recent similar studi es, or if you would like to visit further or in person about the City’s p roject needs, please contact me at any time.
Sincerely,
Matthew Weatherly, President
(888) 522-7772
[email protected]
Regionally: 149 S. Barrington Avenue #726 Los Angeles, CA 90049 888.522.7772 • www.pspc.us
40 PROPOSAL TO CONDUCT A
CLASSIFICATION AND COMPENSATION STUDY
FOR THE CITY OF FONTANA
QUALIFICATIONS OF OUR FIRM
HISTORY AND FACTS ABOUT OUR FIRM
RECENT CALIFORNIA EMPLOYERS SERVED
RECENT MUNICIPAL EMPLOYERS SERVED
________________________________________________
PUBLIC SECTOR PERSONNEL CONSULTANTS
41 HISTORY AND FACTS ABOUT OUR FIRM
• HISTORY OF OUR FIRM
Public Sect or Personnel Con sultants (PSPC) originated i n 1972 with the Pub lic Sector Group of the international human resources c onsulting fir m of Hay Associates. PSPC was established as an independent firm in 1982. We are a single-owner, debt-free subchapter-S corporation.
• REGIONAL STAFF
We have regional o ffices or affiliate s in Los An geles, C A, Sacramento, CA, Austin, TX, Dallas , TX, Chicago, IL, St. Paul, MN, and Phoenix (Mesa), AZ.
• SPECIALIZED IN COMPENSATION SERVICES
We are “super -specialists" in compensation, providing se rvices in job analysis, posi tion classification , job content evalu ation, compensation, and directly related service s. Over 98% of our classification and compensation studies have been successfully implemented by our clients.
• SPECIALIZED IN PUBLIC SECTOR CLIENTS
We provide services exclusively to publ ic sect or employers including municipalities, counties, utility districts, library districts, special districts, s tate governments, housing and redevelopment agencies, airport authorities, school districts, higher education, and tribal governments.
• SPECIALIZED COMPENSATION STAFF
Our staff is comprised of eight (8) full t ime and an additional five (5) part time senio r human resources professionals with ve ry extensive experience as compensation managers and con sultants for public employers. Our staff has mo re than 100 years of combined experience working for and consulting to public sector employers.
• OVER 1,100 PUBLIC EMPLOYERS SERVED
Our staff members have provided compensation, human resources, training and related consulting services to more than 1,100 public and 200 private employers throughout the U.S.
• AMERICAN COMPENSATION ASSOCIATION PARTICIPATION (ACA) (NOW WORLDATWORK)
Our consultan ts are active members of ACA, including serving as in structors for th e ACA certification courses.
• SPECIALIZED COMPENSATION AND RELATED RESOURCES
We utilize our EZ COMP TM salary surv ey and plan program, modified FES point-factor job evaluation system, AEPTM performance evaluation plan, and SNAPTM staffing needs analysis program.
• FIRST YEAR IMPLEMENTATION WARRANTY
We provi de our clien ts with extensive implementation support during t he first year, and we will analyze, evaluate, classify, and provide a sa lary range re commendation for any new o r changed position or entire job class, at no additional cost.
PUBLIC SECTOR PERSONNEL CONSULTANTS
2 42
RECENT CALIFORNIA EMPLOYERS SERVED BY MEMBERS OF OUR STAFF
Apple Valley, Town of Sacramento Housing Authority
Azusa, City of Salinas, City of
Bell Gardens, City of San Bernardino, City of
Banning, City of San Clemente, City of
Capitol Area Development Authority San Juan Capistrano, City of Colton, City of, CA Santa Ana, City of (SEIU)
Commerce, City of Santa Cruz Port District
Culver City, City of South Gate, City of
Indian Wells, City of Upland, City of
Monterey/Salinas Transit Vernon, City of
Monterey, City of Victorville, City of
Riverside, City of Westlake Village, City of
Active 2022: Huntington Beach, Escondido, Ventura, Rancho Palos Verdes
ADDITIONAL RECENT MUNICIPAL EMPLOYERS SERVED BY OUR STAFF
Addison, Town of, TX Frisco, City of, TX Odessa, City of, TX Aliso Viejo, City of, CA Georgetown, City of, TX Pearland, City of, TX Allen, City of, TX Grand Forks, City of, ND Plano, City of, TX Benbrook, City of, TX Grapevine, City of, TX Prosper, Town of, TX Bothell, City of, WA Haltom City, City of, TX Rio Rancho, City of, NM Bozeman, City of, MT Highland Park, Town of, TX Rockwall, City of, TX Carrollton, City of, TX Kerrville, City of, TX Roswell, City of, NM Casa Grande, City of, AZ Killeen, City of, TX Rowlett, City of, TX Centralia, City of, WA Lamar, City of, CO Scottsdale, City of, AZ Dallas, City of, TX Las Cruces, City of, NM Tomball, City of, TX Denton, City of, TX Lisle, Village of, IL Winslow, City of, AZ Edmonds, City of, WA Maricopa, City of, AZ Woodlands Township, TX El Paso, City of, TX Minot, City of, ND University Park, City of, TX Fairview, Town of, TX Mountain Village, Town of, CO
Fort Worth, City of, TX Oak Brook, Village of, IL
PUBLIC SECTOR PERSONNEL CONSULTANTS
3 43
PROPOSAL TO CONDUCT A
CLASSIFICATION AND COMPENSATION STUDY
FOR THE CITY OF FONTANA
QUALIFICATIONS OF OUR STAFF
PROJECT TEAM ORGANIZATION CHART
RESUMES OF PROJECT TEAM MEMBERS
________________________________________________
PUBLIC SECTOR PERSONNEL CONSULTANTS
44 Human Resources Department
City Officials / Project Team
PSPC
PROJECT DIRECTOR
Matthew Weatherly
DEPARTMENT DIRECTORS
Quality Control
Client Communication
Project Management
Implementation Support
CITY EMPLOYEES
PROJECT TEAM ORGANIZATION CHART
COUNCIL
PROJECT STAFF
COMPENSATION PLAN
IMPLEMENTATION PLAN
L. Talamonti, CCP
M. Weatherly
B. Longmire, PMP
K. Tilzer, SPHR
M. Weatherly
B. Longmire, PMP
L. Talamonti, CCP
K. Tilzer, SPHR
S. Heinz, PHR, MPA
COMPENSATION SURVEY
SURVEY ANALYSIS
POSITION CLASSIFICATION
REVIEW AND DESIGN
Review Job Description Questionnaires
Desk Audits / Interviews
Updated Job Descriptions
Job Analysis and Position Classification
Implementation Support
Competitiveness Strategy
Salary Range Assignments
Fiscal Impact Analysis Scenarios
EZ COMP Installation
Staff Training
Implementation Support
Market Definition
Benchmark Definitions
Data Collection & Validation
Statistical Reports
Market Comparison
Implementation Support
CITY OF FONTANA
CLASSIFICATION AND COMPENSATION STUDY
MATTHEW E. WEATHERLY, PRESIDENT, PROJECT LEADER
Overall Project Communication, Compensation Survey QC and Review; Presentations Mr. Weatherly h as over 20 years of experie nce as a human resources manage ment prof essional and consultant, specializing in position classificat ion, compensation, recruitment and selection. He has served as a Human Resources Manager with Employee Solutions, Inc. and Staffing Consultant with Initial Staffing Services.
He has co mpleted p rojects in staff develo pment, r ecruitment, selection, job des criptions, salary survey, and salary plan development. Among his current and recently completed consulting projects are those for:
Banning, City of, CA Monterey, City of, CA Salinas, City of, CA Big Bear Lake, City of, CA North County Fire, CA San Clemente, City of, CA Commerce, City of, CA Redwood City, City of CA Scottsdale, City of, AZ Inglewood, City of, CA Rialto, City of, CA Westlake Village, City of, CA
Mr. Weatherly holds a BS degree in Human Resources M anagement from Arizona State University’s WP Carey School of Business. He has been a featured speaker at City Manager and HR meetings throughout the US.
CFCA PUBLIC SECTOR PERSONNEL CONSULTANTS 7/22
4 45
ELIZABETH J. LOCURTO, CCP, VICE PRESIDENT
Position Classification; Compensation Survey QC and Review Ms. LoCurto has over 30 years of experience as a compensation manager and consu ltant for public and private employers, speciali zing in job analysis, salar y surveys , and salary plan developm ent. Sh e has se rved as Compensation Research Associate for Hayes/Hill, Inc ., Senior Com pensation Analyst for AON Corp oration, Compensation Manage r fo r Loyola Univers ity, and Project Manager for the American Compensation Association.
She has conducted pro jects in job aud its, job descriptions, salary surveys, compensation databas e management, compensation plan dev elopment, compensation training cour se development, and compensation trend research. Among her consulting projects are:
Apple Valley, Town of, CA Highland, City of, CA Sacramento, City of, CA California Family Health Council Midland, City of, TX Seaside, City of, CA El Paso, City of, TX Oakland, City of, CA State Bar of Texas Fresno, City of, CA Pomona, City of, CA Stockton, City of, CA
Ms. LoCurto holds a B S degree in Business Administration from Arizona State Univ ersity. She h olds the Certified Compensation Professional (CCP) designation from the American Compensation Association.
KATHERINE TILZER, SPHR, VICE PRESIDENT
Position Classification; Job Description Writing Supervision; Career Ladders and Job Families Ms. Tilzer has more than 25 years of experience as a human resources man ager and consultant, specializing in employee re lations, compensation, and recruitment. She has served as Pers onnel Ma nager for Laboratory Corporation of America, Director of Human Resources for Plaza Healthcare, Inc., and Director of Human Resources for American Baptist Homes.
Agoura Hills, City of, CA Indian Wells, City of, CA Sacramento City Schools, CA Azusa, City of, CA Lake Havasu City, AZ San Bernardino Assn of Govt’s, CA Castro Valley Sanitary Dist., CA Monterey Transit Dist., CA Victorville, City of, CA Culver City, City of, CA Pacific Grove, City of Water Facilities Authority, CA
She holds a BS deg ree in Management from the University of Phoenix, and certification as Senior Professional in Human Resources from the Society for Human Resources Management.
BOB LONGMIRE, PMP, PROJECT LEADER
Total Compensation Survey; Data Integrity; Project Communication Mr. Longmire has more than 1 5 years of project management experience and consult ing for public employers, specializing in employee development, classification, and compensation. He ha s serve d as N ational Sales Director for Connexion Technologies and Brand Marketing Manager for Plink.
He has completed projects in job analysis, position classification, compensation surveys and plan development.
Among his consulting projects are those for:
Bell Gardens, City of, CA Montebello, City of, CA Pitkin County, CO Colton, City of, CA Salinas, City of CA Riverside, City of, CA La Verne, City of, CA Greater Orlando Airport, FL San Bernardino, City of, CA Monterey, City of, CA King County Library Systems, WA Santa Ana, City of, CA
Mr. Longmire holds a BS degree in Administration from Colorado Christian University and designation as Project Management Professional from the Project Management Institute.
CFCA PUBLIC SECTOR PERSONNEL CONSULTANTS 7/22
5 46
SAMUEL HEINZ, MPA, PHR
Position Classification; Job Description Writing Supervision; Career Ladders and Job Families Mr. Heinz has conducted projects in job analysis, position classification, job evaluation, compensation surveys, and compensation plan development. Among his recent client projects are those for:
Addison, Town of, TX DeSoto, City of, TX Prosper, Town of, TX Apache Junction, City of, AZ Galveston, City of, TX Teton County, WY Bismarck, City of, ND Midland, City of, TX The Colony, City of, TX Carrollton, City of, TX Odessa, City of, TX Williston, City of, ND
Mr. Heinz holds a MA degree in Public Administration from Texas Tech.
PUBLIC SECTOR PERSONNEL CONSULTANTS proposes to utilize only full -time members of ou r firm to complete all of the pr oject tasks a nd objectives. In or der to m aintain complete control of the project tasks and deadlines, we will not utilize subcontractors for the completion of the project.
CFCA PUBLIC SECTOR PERSONNEL CONSULTANTS 7/22
6 47
PROPOSAL TO CONDUCT A
CLASSIFICATION AND COMPENSATION STUDY
FOR THE CITY OF FONTANA
REFERENCES
COUNTY GOVERNMENTS SERVED BY OUR STAFF
1,000+ PUBLIC EMPLOYERS SERVED
________________________________________________
PUBLIC SECTOR PERSONNEL CONSULTANTS
48 REPRESENTATIVE PROJECT REFERENCES
Following is a listing of agencies which are representative of more than 1,1 00 employers, for whom members of our firm have services similar to those requested by the City.
MONTEBELLO, CITY OF, CA
Mr. Nicholas Razo, Director of HR
1600 W. Beverly Blvd
Montebello, CA 90640
(323) 887-1377
[email protected]
FY 2021/22 Classification and Comp Study
SAN JUAN CAPISTRANO, CITY OF, CA
Mr. Sam Penrod, HR / Risk Manager
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
(949) 234-4565
[email protected]
Classification and FY 2017 Compensation Study
RIVERSIDE, CITY OF, CA
Ms. Miriana Gonzalez, Deputy HR Director
3900 Main Street
Riverside, CA 92522
(951) 826-5808
[email protected]
FY 2020 SEIU, POA Compensation Study
ESCONDIDO, CITY OF, CA
Ms. Jessica Perpetua, HR Director
201 N. Broadway
Escondido, CA 92025
(760) 839-4016
[email protected]
FY 2022 Classification and Compensation Study
DALLAS, CITY OF, TX
Ms. Carmel Fritz, Deputy Director
1500 Marilla Street
Dallas, TX 75201
(214) 670-7391
[email protected]
FY 2022 Class and Compensation Study
SCOTTSDALE, CITY OF, AZ
Mr. Jim Thompson, City Manager
3939 N. Drinkwater Blvd
Scottsdale, AZ 85251
(480) 312-2800
[email protected]
FY 2022 Compensation Study Update
FY 2018 Class and Compensation Study
CFCA PUBLIC SECTOR PERSONNEL CONSULTANTS 7/22 7 49
PROPOSAL TO CONDUCT A
CLASSIFICATION AND COMPENSATION STUDY
FOR THE CITY OF FONTANA
WORK PLAN
SUMMARY OF SERVICES AND APPROACH
________________________________________________
PUBLIC SECTOR PERSONNEL CONSULTANTS
50 SUMMARY OF SERVICES FOR THE CITY OF FONTANA
PUBLIC SECTOR PERSONNEL CONSULTANTS (PSPC) proposes the following program of consulting services and implementation support to conduct a classification and compensation study.
Project Planning and Communication
1. Project planning and scheduling meetings with the City’s Human Resources Staff, project designee(s)
2. Policy input and project direction meeting and briefing with Council, Human Resources and designee(s)
3. Project briefing presentation for all employees, Council, City officials, City’s project leaders
4. Management and employee communication, progress reports throughout all project phases
5. Assistance with development and communication with a committee of employee representatives
Classification Project Tasks
6. Occupational familiarization by review of City’s current class specifications and compensation plans
7. Organizational familiarization by review of City organization charts, budgets, and annual reports
8. Position Analysis Questionnaire (PAQ) customized for gathering City employee occupation data
9. Meetings to distribute and explain the PAQ and the project for all City officials and employees
10. Job interviews, desk audits / field observations with representatives of each class
11. Recommended title modifications and reclassifications for consideration by department heads
12. Modeling of job families and career ladders to include possible job title consolidation / clean up
13. Review of position classification recommendations with City’s project staff and respective departments
14. Facilitation of employee participation and feedback process on any proposed classification changes
15. Preparation of updated job descriptions for each included job classification
Compensation Survey(s)
16. Confirmation of survey cities to include in external total compensation comparisons
17. Identification of City occupations to utilize as survey benchmark job classifications
18. Solicitation of comparator employers and agencies for participation in external compensation surveys
19. Extraction of data from public employer compensation plans, questionnaires, reliable published surveys
20. Optional total compensation and benefits survey by bargaining unit for comparisons
21. Consolidation of data from all sources and calculation of prevailing rates for benchmark jobs
22. Computation of extent City’s compensation offerings vary from external prevailing rates and practices
23. Review of competitiveness analysis with Human Resources, City Officials and City’s project designees
Compensation Plan Development
24. Construction of optional salary range structures for review and selection by City’s project leaders
25. Assignment of job classes to salary ranges by internal equity and external competitiveness
26. Assistance with City Council identification of desired, affordable salary competitiveness policy
27. Fiscal impact estimates at various levels of external prevailing rates competitiveness policies
28. Review and critique of draft salary and implementation plans with Human Resources, project leaders
Communication of Results and Implementation Strategies
29. Preparation and presentation of final project reports for the City Council, staff, and City Officials
30. Development of a plan for the implementation of City’s updated classification and compensation plan
31. Uploading of EZ COMPTM program files on a Human Resources Department computer, staff training
32. Development and provision of process for ongoing plan maintenance and subsequent plan updates
33. Assistance with communicating the City’s updated plans for all City officials and employees TS 7/22
All services available in person or virtual
CFCA PUBLIC SECTOR PERSONNEL CONSULTANTS 7/22
8 51
PROJECT APPROACH AND METHODOLOGY
Following is o ur overall work plan and approach to ach ieving the City’s objectives for the conduct of a classification and compensation study.
A. OBJECTIVES OF THE PROJECT
The reco mmended plans, pr ograms, systems and administrative procedures will meet thes e ten most important criteria.
- Internally equitable - Financially responsible
- Externally competitive - Efficiently administered
- Readily understood - Inclusive of employee input
- Easily updated & maintained - Reflective of City's values - Legally compliant & defensible - Reflective of prevailing “best practices”
B. SCOPE OF THE PROJECT
The pro ject could include: a management and employee communication p lan; par tnership with the City’s Human Resources staff, City Manager, Council, and pr oject designee(s); occupational, organizational, a nd operational familiarization; Position Analysis Ques tionnaire (PAQ) and job analys is for all c lassifications; worksite job information interviews ; position classification and job title recommendations for all employees and classifications; FLSA interpretations; updated job descriptions; EZ COMP™; internal equity and external competitiveness evaluation; total compensation survey and c ompetitiveness analysis ; salary range recommendations; fiscal impact estimates and multiple implementation scenarios ; updated classification and compensation plan and classification and co mpensation plan implem entation support fo r all included employees in all job classifications.
C. PROJECT METHODOLOGY
1. Quality Assurance
To ensure a high-quality project, we have built in several layers of procedural and statistical controls, in addition to those already in EZ COMP™ . Internally, we follow a prescribed ser ies of steps in each project phase, which are reviewed by our P roject Director. We request that the Human Resources and City’s Project Manager(s) review our work to minimize t he chance of errors and to ensure that it reflects the City's organizational values.
2. Project Planning Meetings and Communication Plan Development
We will consult with the Human Resources Team and City Officials or representatives on a communication strategy, plan, a nd materials, beginning prior to the project and e xtending to the post- project info rmation meetings. We plan to conduct group pr e-project meetings for all City officials and employees where we will discuss the project’s scope, answer questi ons, and distribute and expla in the Position Analysis Questionnaire.
CFCA PUBLIC SECTOR PERSONNEL CONSULTANTS 7/22
9 52
D. POSITION CLASSIFICATION ANALYSIS
1. Review of Essential Tasks – Position Analysis Questionnaire
We will review and analyze the current essen tial tasks, duties and respons ibilities, and min imum qualifications of each included position t hrough the Position Analysis Questionnai re (PAQ) to be completed by each employee (or gr oup of employees with identical jobs) in print or elect ronic format. If the information on t he PAQ does not clearly delin eate the position’s scope of responsibilities, we may return the PAQ to the position’s incumbent for additional information or focus on the data gap during a worksite job information interview.
2. Employee Worksite Job Information Interviews
We can conduct a worksite job information interview with a representative incumbent of every requested job classification or for those we propose to change. The purpose of these interviews is to verif y the data on the PAQ, obtain additional insight into the scope a nd complexity of the job duties, observe technical processes and working conditions, an d to provide employees with an additional method of participation in the project. This process also ensu res that we make a ll internal and external comparisons on the basis of actual job content and not merely job title.
3. FLSA Status Interpretation
We will review the essential tasks and minimum quali fications of each of the City's job classifications and subject them to the Fair Labor Standards Act tests to determine their exempt or non-exempt status.
4. Position Classification
Each of the City’s positions will be analyzed and evaluated to determi ne their primary characteristics, including:
- Is t here a c urrent City occupational job group comprised of j ob class es with essent ial functions similar to the subject position; if so:
- To which of t he group’s job classes, and at what level, are th e subject position’s essential functions similar to the subject position, and if so:
- Are they sufficiently co mparable (+/- 20% guid eline) to be alloca ted to that job class, utilize the same job title, require the same minimum qualifications, and be assigned to the same salary range.
- If the City does not currently have a sufficiently comparable job class, what should be the subject position’s occupational job class and title, and:
- What should the recommended occupational classification action be, No Change (N), Title Change (T), Merge With Other Job Class (M), New Job Class (J).
- We may find that a job clas s is ove rly broad and encompasses several job a ctivities which are regarded with significant sa lary difference in the marketplace. In such an in stance, we will recommend "splitting" the job class int o the cu rrent job class and a new job class which encompasses the different job activities.
CFCA PUBLIC SECTOR PERSONNEL CONSULTANTS 7/22 10 53
5. Updated Job Descriptions
We can prepare an updated job de scription in the City’s standard or ot her selected format for e ach occupational job class. Focus will be on the Essentia l Functions and Minimum Qualifications . The specifications or descriptions may include (not limited to) the following components:
Job Title – Definition Education, Training and Experience Physical Requirements Distinguishing Characteristics Licenses and Certifications Non-Essential Functions Essential Functions FLSA Exempt/Non-Exempt Status Mental Requirements Desired Knowledge and Skills Supervision Exercise/Received Working Conditions
6. Draft Classification Plan Review with Human Resources and Department Heads
We will conduct a review of our initial po sition classification recommendations and draft job descriptions with the City’s Pr oject Team and respective depa rtment head s to identify possible errors, obtain feedback, and solicit suggestions for clarification.
E. COMPENSATION SURVEY AND ANALYSIS
1. City Involvement in Compensation Plan Development
We will obtain policy direction from the City Council, Human Resources staff, and/or City Officials on the following key components of the salary plan development process:
- Comparator Employer Selection - Job Evaluation Method-Salary Plan Linkage - Benchmark Job Class Selection - Draft Compensation Plan Review / Critique - Compensation Competitiveness Policy - Total Compensation Points for Analysis - Salary Structure Selection - Project Implementation Plan
2. Comprehensive Compensation Survey
We wi ll collec t the complete pay plans fr om each of the City’s comparators an d build a custom survey database to ensure accuracy and completeness, unique to the City’s job classifications.
a. Data Coll ection Prot ocol will be developed in cons ultation with the City’s pr oject leaders to determine which salary data elements to include, such as:
Total Compensation Information (including items contained in RFP) - Salary grade/step or open range salary plan structure - Salary range structure Minimum, Midpoint, and Maximum - City-supported benefits such as health insurance premiums and pension contributions - Paid time off, add pay, certification pay, longevity, flexible work, telework
b. Benchmark Job Selection will be made by identifying City job classes common to its employment- competitive public and private employers in the immediate area and throughout the region or State , clearly identifiable, and representative of standard occupational job groups.
c. Comparator Employers Identification or Confirmation will be made in partnership with City staff, or per agreed upon lists from bargaining, and/or by research and input from PSPC.
CFCA PUBLIC SECTOR PERSONNEL CONSULTANTS 7/22 11 54
d. Compensation Data Collection will be made by one or more of the following methods.
- Pre-survey contac t w ith the selected comparator employers to solic it p articipation i n the City’s compensation survey(s)
- Extraction from the pay plans of designated public employers.
- Customized salary and total co mpensation an d benefit s survey requests for local governme nts and other public employers, distributed by mail, fax, and e-mail.
- As desired, additional d ata extraction from establ ished s alary surveys and commercial surv ey sources such as Watson Wyatt, ERI, etc.
e. Data Quality Control includes editing data for accuracy and proper matching to the City’s survey benchmark jobs, and phone/fax/E-mail follow -ups for data clarification and to o btain compara tors’ benchmark job descriptions.
3. Prevailing Rates Calculation
We will consolidate the compensa tion data from all sources, enter the information into the EZ COMP™ program, and compute the prevailing rates, inclusive of cost-of-living differentials, as the statistical mean of the sur vey data for each benchmark job cla ss. Data will be projected forwar d from the date of collection to a common date relating to the City’s salary plan year by the annual Prevaili ng Rate Increase Factor (PRI) applicable at that time.
4. Compensation Competitiveness Comparison
We wil l provi de the City with charts comparing its current salary structure s to those of the selected public and private comparator employers. We will calc ulate the extent that the City’s offerings vary from the prevailing rates and practices of other relevant employers.
F. PAY PLAN DEVELOPMENT
1. Compensation Competitiveness Policy
We will assist the City to select a compensation competitiveness policy which best fits its compensa tion strategy and financial resou rces, by prov iding f iscal impact estimate s at v arious per centage relationships to the prevailing rates.
2. Salary Plan Structure Development
We will review th e City’s current wage plans and 1) utilize the City’s current wage plan str uctures to identify internally equitable and externally competitive salary ranges for each City job class or 2) prepare alternative salary range structures and schedules for the City to select the best fit for its competitiveness strategy, with these optional criteria:
- Method of administration, i.e.: measured job performance, longevity, or skill - Width of the salary ranges, grades, or broad bands, from Minimum to Maximum - Varying salary range widths for FLSA non-exempt or exempt positions - Open salary ranges for pay-for-performance or variable compensation plan - If steps within the salary ranges, number of steps, percentage separation - Number of salary ranges, grades, or broad bands in the salary schedule - Percentage of separation between salary ranges, grades or broad bands - Recognition for longevity, unique assignments, and special skill requirements
CFCA PUBLIC SECTOR PERSONNEL CONSULTANTS 7/22 12 55
3. Salary Range Assignment Development
We will as sign each job classification to a salary range i n the City’s cur rent or selected new salary structure on the basis of a combination of factors, including:
- the prevailing rates for the benchmark job classes
- its current relationship to similar or occupationally related job classes - the 15% guideline for salary range separation between sequential job classes - the 25% guideline for salary separation of a department head job class
4. Implementation Plan Development
We will consult wi th the Human Res ources and Project T eam on a plan for transition to the recommended plan, i ncluding a timetable for the principal activities , employee comm unication, impact on budget processes, and estimates of required financial resources.
G. ENSURING THE CITY’S SELF-SUFFICIENCY
The C ity wi ll be sel f-sufficient in al l aspect s of maintenance of the updated position classification and compensation plan through these services.
1. Procedure Manuals
- PSPC Position Classification Procedure Guide
- PSPC Salary Administration Procedure Guide
- City of Fontana EZ COMP™ Procedure Guide
2. Training Workshop – for City staff in position classification, job evaluation, c ompensation surveys, and compensation plan design and administration.
3. Electronic Class S pecification Library – we can provide t he City with a ll updated classification specifications in hard copy and electronic library format for internal maintenance.
4. EZ COMP™ – program and project files on one of the City’s computers, a custom user’s manual, and system training for key City and Human Resources staff.
5. Initial Year’s Implementation Warranty Support – we will analyze, evaluate, classify, and provide a salary range recommendation for any new or changed position or entire job classification, at no cost to the City for one year.
H. EXTENSIVE EMPLOYEE INCLUSION AND COMMUNICATION
Very important factors for s uccessful implementation of new or upd ated classification and com pensation plans are 1) extensive employee inclusion, and 2) extensive employee communication. City officia ls and employees will participate in one or more of the following activities:
- Attending pre-project briefings and question and answer sessions - Completing a Position Analysis Questionnaire (PAQ) describing their position - Elaborating on their jobs in individual or group job information interviews
I. MINIMAL CITY SUPPORT REQUIRED
We are completely self -sufficient in p rojects of this nature and do not require any substantive staf f support from the City other t han payroll data, and arrangements for group and individual meetings and int erviews.
We appr eciate, but do not require, any office space, telephone, clerical assis tance, co mputers, or office equipment. We will provide all data entry, data processing, duplicating, and report preparation functions.
CFCA PUBLIC SECTOR PERSONNEL CONSULTANTS 7/22 13 56
J. REPORTS AND PRESENTATIONS
1. Draft and Final Report Preparation
We will provide the City’s project leader(s) with a dra ft of our rep ort for review and critiq ue, including the classification plan, compensation market data, salar y comparison tables, fisc al estimates, salary range listings, and implementation procedures. We will incorpor ate their cri tique into the de velopment of a final r eport summarizing the pro ject’s findings, recommendations, and detailed description of the City’s updated position classification and compensation plans.
2. Final Report Presentations
We will conduct a workshop or f ormal presentatio n of our final report and recommendations to th e Human Resources staff, City Officials, and employees.
3. EZ COMP™ Program Installation
We w ill install our EZ COMP™ program and project fi les on one of the Human Resources Department's com puters and provid e training to key staf f in the maintenance and update of the classification and compensation plan.
4. Implementation Warranty
To ensure effe ctive implementation of the new plan, we will a nalyze, evaluate, and provide a salar y range recommendation for any new or changed job class, at no cost to the City for one year.
CFCA PUBLIC SECTOR PERSONNEL CONSULTANTS 7/22 14 57
TASK NAME ELAPSED WEEKS:
1. PROJECT COMMUNICATION,
QUALITY ASSURANCE,
PROJECT STATUS REPORTS
2. REVIEW OF JAQ’S; INTERVIEWS; TITLING;
ORGANIZATIONAL DATA COLLECTION
CLASSIFICATION RECOMMENDATIONS
3. POSITION CLASSIFICATION/EVALUATION;
HR STAFF QUALITY ASSURANCE REVIEW;
DRAFT REVIEW WITH HR, DEPTS
4. PREPARATION OF UPDATED CLASS
SPECIFICATIONS AND REVIEWS WITH
DEPARTMENTS, FINALIZATION
COMPENSATION SURVEY, BENCHMARK
5. SELECTION, DATA COLLECTION,
COMPARABILITY ASSURANCE REVIEW
6. PREVAILING RATES COMPUTATION,
MARKET COMPETITIVENESS ANALYSIS,
DRAFT COMPENSATION METHODOLOGY
7. SALARY RANGE ASSIGNMENTS ON BASIS
OF INTERNAL EQUITY AND EXTERNAL
COMPETITIVENESS
8. SALARY RANGE TABLES, FISCAL IMPACT
ESTIMATES, REVIEW OF DRAFT PLANS
WITH CITY OFFICIALS, DESIGNEE(S)
PREPARATION AND PRESENTATION OF
9. FINAL REPORT TO HR, COMMITTEES,
EXECUTIVE TEAM, EMPLOYEES
10. EZ COMP INSTALLATION, STAFF
TRAINING ONE YEAR OF CLASS/COMP
PLAN IMPLEMENTATION ASSISTANCE
1 4 8 12 16 20+
* Progress reviews with the City
*
*
*
ESTIMATED PROJECT ELAPSED TIME CHART
*
Job descriptions likely require additional 180 days
We estimate that we could start project activities in September 2022 CFCA PUBLIC SECTOR PERSONNEL CONSULTANTS 7/22 15 58
PROPOSAL TO CONDUCT A
CLASSIFICATION AND COMPENSATION STUDY
FOR THE CITY OF FONTANA
COST PROPOSAL
1,000+ PUBLIC EMPLOYERS SERVED
________________________________________________
PUBLIC SECTOR PERSONNEL CONSULTANTS
59 PROJECT RATES BY MAJOR TASK
A. PROJECT COST ESTIMATE
We estimate that the project's total cost, including al l fees for professional services and r eimbursement for out-of-pocket expenses, will not exceed the indicated amounts.
Major Project Components
- Planning Meetings, Kick Off, Communication and PAQ Intro $ 15,000 - Job Information Interviews / Desk Audits (max cost for 250) $ 30,000 - Position Classification, Job Titling, FLSA Review; “Appeals” $ 30,000 - Updated Job Descriptions (max cost for 250) $ 25,000
- Total Compensation Survey $ 90,000
- Pay Plan Modeling, Implementation Options and Costing $ 20,000 - Reporting, Presentations, Contingent Placeholder for Other $ 40,000 Total Not To Exceed: $ 250,000
B. FLEXIBLE WORK PLAN, NEGOTIABLE TOTAL COST, TERMS
Our work plan is flexible and total project cost negotiable, and we will discuss, modify, add or delete, any work task to increase the project's responsi veness to the City’s needs and fi nancial resources. We will provide the City with monthly invoices f or the pr ofessional services provided and out -of-pocket expenses incurred during the month. We request that the City pay the invoices within thirty (30) days of their receipt.
C. ESTIMATED TIMELINES
We estimate that th e project can b e completed in 175-200 days; job descriptions often require an additional 120+ days to complete.
CFCA PUBLIC SECTOR PERSONNEL CONSULTANTS 7/22
60 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1988 Agenda Date: 2/14/2023
Agenda #: D. Category: Consent Calendar
FROM:
Engineering
SUBJECT:
Approve Replacement of Securities for Tract No. 20230 Located East of Palmetto Avenue and North of Merrill Avenue
RECOMMENDATION:
Approve replacement of securities for infrastructure improvements of Tract No. 20230 and authorize the City Manager to enter into a Subdivision Agreement with HMZ Holdings, LLC for construction of infrastructure improvements.
COUNCIL GOALS:
· Invest in the City’s infrastructure (streets, sewers, parks, etc.) by maintaining and improving the city's existing infrastructure.
· Invest in the City’s infrastructure (streets, sewers, parks, etc.) by providing for the development of new infrastructure.
DISCUSSION:
Tentative Tract No. 20230 was approved by Planning Commission on February 19, 2019. As a requirement of the project, the developer was conditioned to build infrastructure improvements of Tentative Tract No. 20230 located east of Palmetto Avenue and North of Merrill Avenue. Core Equity Properties, LLC posted a Subdivision Improvement Agreement and Securities for infrastructure improvements on October 29, 2019. Recently, HMZ Holdings, LLC purchased the development from Core Equity Properties, LLC and has posted a Subdivision Improvement Agreement and Securities in the amount of $526,169.00 to complete the required infrastructure improvements. Therefore, this action will allow the securities from HMZ Holdings, LLC to replace securities from Core Equity Properties, LLC which will be released. The requirements for the development of the subdivision have not changed.
FISCAL IMPACT:
There is no fiscal impact.
MOTION:
Approve staff recommendation.
City of Fontana Printed on 2/8/2023Page 1 of 1
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61 Revised – RP -09/22/2022
SUBDIVISION IMPROVEMENT AGREEMENT
Tract Map No.:
THIS AGREEMENT is between the City of Fontana, a municipal corporation, County of San Bernardino, State of California ("City") and
("Subdivider" ):
WHEREAS, the application for tentative Tract Map No. , was conditionally approved on ; and
WHEREAS, Subdivider is the owner of that certain parcel of land defined by the Final Map and Subdivider proposes to do and perform certain work of improvement thereon as set forth in this agreement; and
WHEREAS, City desires to assure that the proposed improvements will be done in a good workmanlike manner and in accordance with the laws and standards now in force and effect in the City, the terms and conditions of which are incorporated herein by reference; and
WHEREAS, Subdivider declares acknowledgement the pertinent regulations contained in the City Code and in the Subdivision Map Act (Government Code Sections 66410 to 66500) and agrees to comply therewith; and
WHEREAS, a Fi nal Map of the subdivision, prepared in accordance with the City's Subdivision Ordinance, has been filed by Subdivider with City for approval by the City Council;
NOW THEREFORE, in consideration of the approval and acceptance of the Final Map by the City Council and the acceptance of easements therein offered for dedication for street, utility, and other public purposes and the covenants herein contained, the parties hereto mutually covenant and agree as follows:
1. General requirements:
Subdivider shall, at its own cost and expense, provide all required tests, design work, equipment, materials and labor in order to complete all of the improvements as associated with the requirements per the approved project or to the satisfac tion of the City Engineer of the City of Fontana.
All required improvements have an estimated cost of construction totaling ____________________________________________________________ ($ ) as shown on Exhibit " A".
Improvements are shown on approved plans on file with City Engineer.
The estimated cost of construction set forth in Exhibit “A” is for estimation purposes only, and for calculation of the amount of securities 20230
HMZ HOLDINGS, LLC
JUNE 21, 2022
20230
FIVE HUNDRED AND TWENTY-SIX THOUSAND, ONE HUNDRED AND SIXTY-NINE DOLLARS 526,169.00
62 Revised – RP -09/22/2022
required pursuant to the provisions of section (2), below. Subdivider’s obligation to complete the improvements, or any portion of them, is not limited in any way by the estimated cost of construction, and the obligation of Subdivider’s surety in connection with the securities required pursuant to the provisions of section (2), below.
2. Security:
Subdivider shall, at all times, guarantee its performance of this agreement by furnishing to City and maintaining good and sufficient security as required by the State Subdivision Map Act on forms approved by City for the purposes and in the amounts as follows:
a. To ensure a faithful performance of this agreement in regard to the improvements in the amount of 100% of the estimated cost of construction of the improvements; and
b. To secure payment to any contractor, sub- contractor, pers ons renting equipment or furnishing labor or materials for the improvements required to be constructed or installed pursuant to this agreement in the additional amount of 100% of the estimated cost of construction of the improvements; and
c. To guarantee or warranty the work done pur suant to this agreement for a period of one (1) year following acceptance thereof by City Council of the City of Fontana against any defective work or labor done or defective materials furnished in the amount of 20% of the esti mated cost of construction of the improvements; and
d. To warranty the setting of required subdivision monuments within one - year following recordation of the Final Map in the amount of 100% of the estimated cost of setting subdivision monuments as shown in Exhibit "A".
e. To guarant ee the landscape maintenance of all landscape improvements for a period of one year (1) year following acceptance of thereof by the City.
The securities required by this agreement shall be kept on file with the City Clerk.
The terms of the security documents required by this agreement are hereby incorporated in this agreement by reference and copies attached hereto.
The security, which guarantees performance, can be released upon acceptance of the improvements by the City Council. The security which guarantees payment to contractor, sub- contractors and to persons furnishing labor, materials or equipment will be released 6 months after acceptance of the improvements by the 63 Revised – RP -09/22/2022
City Council, less the total of all claims to which the City has been given proper notice.
Securities may be released upon the final completion and acceptance of the work subject to the provisions herein. The City Council, in its absolute discretion, may release a portion of the security given for faithful performance of the improvement work as the improvement progresses upon application thereof by the Subdivider.
3. Time of Completion:
All of the required improvements shall be completed within 24 months from the effective date of this agreement. If the work is not completed within the specified time period because of acts of God, the public enemy, the City, or because of fire, flood, epidemic, quarantine restrictions, strikes or freight embargoes, the Subdivider shall be entitled to an extension beyond the specified time period for a period equal to the length of such delay within ten days from the beginning of such delay.
In addition to the extension for the reasons referenced in the foregoing paragraph, Subdivider may submit a written request , Exhibit “B” , for a discretionary extension of the time for completion of the improvements to the City Engineer.
The City Engineer may grant or reject such extension, in whole or in part or with conditions, in his sole discretion. If an extension of time is granted it shall in no way af fect the validity of this contract or release the surety on the securities referenced herein.
In the event that Subdivider fails to complete the improvements within the required period or any approved extension, the City may complete the work and shall be entitled to recover the full cost and expenses thereof from Subdivider, or his surety as herein provided. If City pursues completion of the improvement work, it may require Subdivider, or his surety, to pay the City in advance, sufficient monies to cover the City's cost in completing construction of the improvements.
Any limitations period provided by law related to breach of this Agreement or the terms thereof shall not commence running until Subdivider, or Subdivider’s surety pursuant to Section 2 of this Agreement, has provided the City Engineer with written notice of Subdivider’s intent to abandon or otherwise not complete the improvements.
4. Effective Date of Agreement:
This Agreement shall not become effective unless and until the Subdivision Ma p has been approved by the City Council of the City of Fontana and also accepted 64 Revised – RP -09/22/2022
the Final Map for reco rdation by the County Recorder of the County of San Bernardino.
5. Utility Deposits - Statements:
Prior to the commencemen t of any work to be performed within the area delineated on the Final Map, the Subdivider must file a written statement with the City Clerk and the City Engineer, signed by the Subdivider, and each public utility involved, to the effect that Subdivider has made all deposits legally required by such public utility for the connection/extension of any and all public serving utilities to be provided to or within the subdivision.
6. Permits - Compliance with Law:
Subdivider shall, at Subdivider's expense, obt ain all necessary permits and licenses, pay all charges, fees and taxes, and give all necessary and incidental notices to the due and lawful prosecution of the work.
7. Definition and Ownership of Improvements:
The term "improvements" means: grading, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities as shown in detail upon plans, profiles and specifications which have been prepared or are now in final preparation by engineers acting for Subdivider subject to approval by the City Engineer of the City of Fontana. No work on the improvements shall be commenced until plans and/or profiles therefore have been submitted, approved and permitted by the City Engineer. All required public improvements constructed or installed pursuant to this Agreement shall become the sole exclusive property of the City, without payment therefore, upon acceptance of the improvements by the City Council.
8. Obligations of Subdivider:
Notwithstanding the fact that Subdivider's plans and specifications, completion of the work, and other acts are subject to approval of the City, it is understood and agreed that any approval by the City thereof shall in no way relieve Subdivider of satisfactorily performing all work on the related obligations hereunder. The construction shall be done strictly in accordance with the plans and specifications prepared by Subdivider or its engineer, and as approved by the City as being consistent with the City Code and Standards. Subdivider warrants that its plans and specifications conform as a minimum to all City codes and standards and that they are adequate to accomplish the work in a good workmanlike manner and in accordance with responsible construction practices.
65 Revised – RP -09/22/2022
9. Superintendence by Subdivider:
Subdivider shall personally supervise all work involved in the improvements, or shall designate a competent foreman or superintendent, satisfactory to the City Engineer, to supervise the work at all times during progress, with authority to act for Subdivider. In the event satisfactory superintendence is not being exercised by the Subdivider, the City Engineer may order suspension of all work within the subdivision until the deficiency is adequately corrected.
10. Repair and Replacements:
Subdivider shall replace, or have replaced, or repair, or have repaired, as the case may be, or pay to the owner the entire cost of replacement or repairs, for all survey monuments or for any and all property damaged or destroyed by reason of any work done hereunder, whether such property be owned by the United States or any agency thereof, or by the City or by any public or private corporation, or by any person whomsoever or by combination of such owners. Any such re pair or replacement shall be completed in a reasonable manner and subject to the approval of the City Engineer and affected property owner.
11. Inspection by City:
Subdivider shall at all times maintain proper facilities a nd provide safe access for inspection by City to all parts of the work and to the shops where the work is in preparation. The cost of inspections shall be paid by the Subdivider.
12. Approval by City Engineer.
All required improvements shall be constructed under the inspection of and subject to approval of the City Engineer. Therefore, it is mutually agreed by the parties hereto that the City Engineer shall have the right to reject any or all of the work to be performed under this contract if such work does not conform to the plans and specifications set forth herein or the City's Codes and standards. Any damage to the improvements (existing or new) that occurs during the course of work performed under this Agreement shall be repaired or replaced, by the Subdivider, to the satisfaction of the City Engineer before the final acceptance of completed work and release of security.
13. Liability for Performance Injury or Damage:
Neither the City nor any of its officers or agents shall be liable to Subdivider or its contractors for any error or omission arising out of or in connection with any work to be performed under this contract. Additionally, the City shall not be liable to the Subdivider or to any other person, firm, or corporation whatsoever, for any injury or damage that may result to any person or property by or from any 66 Revised – RP -09/22/2022
cause whatsoever in, on, or about the subdivision of said land covered by this Agreement, or any part thereof.
14. Indemnification and Release:
Prior to the commencement of any work pursuant to this contract, Subdivider's contractors shall furnish to City satisfactory evidence of an insurance policy written upon a form and by a company (which meets with the approval of City) insuring City, its officers, agents, and employees agains t loss or liability which may ar ise during the work or which may result from any of the work herein required to be done, including all costs of defending and claim arising as a result thereof. Minimum liability and property damage insurance shall not be less than $250,000 for all damages arising out of bodily injury to a death of one person and not less than $1,000,000 for all damages arising out of bodily injuries to or death of more than one person in any occurrence; and not less than $250,000 for all damages and/or destruction of property in any one occurrence and not less than $500,000 for all damages and/or destruction of property during the policy period.
Such policy shall be in favor of Subdivider or its contractors and of the City, its officers, agents, and employees and shall be maintained in full force and effect during the life of this contract. The policy shall state by its terms and by an endorsement that it shall not be cancelled until City shall have had at least ninety (90) days' notice in writing of such cancellation.
The Subdivider hereby releases and agrees to indemnify and save the City harmless from and against any and all injuries to and deaths of persons and injuries to property, and all claims, demands, costs, loss, damage and liabi lity, howsoever the same may be caused and whensoever the same may appear, resulting directly or indirectly from the performance or non- performance of any of or all work to be done in and upon premises adjacent thereto pursuant to this Agreement, and also from any and all injuries to and deaths of persons and injuries to property or other interests and all claims, demands, costs, loss, damage, and liability, howsoever same may be caused and whensoever the same may appear, either directly or indirectly made or suffered by the Subdivider, t he Subdivider's agents, employees, and sub- contractors, while engaged in the performance if the work.
15. Liability of Subdivider:
The Subdivider agrees that the use for any purpose and by any person of any and all of the streets, easements and improvements herein specified shall be at the sole and exclusive risk of the Subdivider at all times prior to final acceptance by the City of the completed street and other improvements thereon and therein; provided that acceptance by the City shall in no way eliminate or lessen any of Subdivider's obligations or undertakings contained in this Agreement. The issuance of any occupancy permits (if granted) by the City for buildings located within the subdivision shall not be construed in any manner to constitute an 67 Revised – RP -09/22/2022
acceptance and approval of any or all of the required improvements in said subdivision.
16. Relationship of Contractors:
It is hereby mutually covenanted and agreed by the parties hereto that Subdivider's contractors are not agents of the City, if any, are those of independent contractors.
17. Repair or Reconstruction of Defective Work:
If, within a period of up to one year after City Council acceptance of the improvement work performed under this Agreement, any of the improvements for work done under t his Agreement fails to fulfill any of the requirements of this Agreement, or the specifications referred to herein, Subdivider shall without delay and without any cost to the City (upon receipt of written notice from the Cit y), repair or replace or reconst ruct any defective of otherwise unsatisfactory part or parts of the work or structure. Should Subdivider fail to act promptly or in accordance with this requirement, or should the exigencies of the case require repairs or replacements to be made before Su bdivider can be notified, City may, at its own option, make the necessary repairs or replacements or perform the necessary work and offset that amount against any security pledged by Subdivider for faithful performance, labo r and materials, or warranty obl igations under this agreement.
18. Warranty:
Without limiting the foregoing, Subdivider warrants and guarantees: materials used and workmanship performed on said work for a period of one (1) year after completion and accep tance thereof by the City, and t he setting of all required Final Map monuments.
19. Assignment:
This agreement shall not be assignable by Subdivider without written consent of City.
68 Revised – RP -09/22/2022
IN WITNESS WHEREOF, this agreement shall for all purposes be deemed an original thereof, having been duly executed by the Subdivider herein named on the day of , 20 being duly signed by its undersigned representative(s) pursuant to authority of its governing body.
SUBDIVIDER CITY OF FONTANA
By: By:
City Manager
Name ___________________________ Print Name
Title
By: Attest:
City Clerk
______________________________
Name _____________________________ Print Name
Title
APPROVED AS TO FORM:
By:
Best Best & Krieger LLP
City Attorney
Print Name
APPROVED AS TO CONTENT:
By:
City Engineer
_____________________________
Print Name
Matthew C. Ballantyne
Germaine McClellan Key
Ruben Duran
Gia Kim
Zaid Hakkak
JANUARY
23 69
Revised – RP -09/22/2022
Attachments: (1) Exhibit "A" – Cost Estimate
(2) Exhibit "B" – Time Extension
(3) Securities
70 Revised – RP -09/22/2022
Exhibit “A”
INSERT ENGINEER’S
COST ESTIMATE
IN THIS SPOT
71 72
73 74
75 Revised – RP -09/22/2022
SUBDIVISON IMPROVEMENT AGREEMENT
Tract Map No.:
Exhibit “B”
I,
(Subdivider’s name here)
am the owner of the property to which this Request is being made for of a Time Extension for Project No. .
Name:
Subdivider’s Signature:
Subdivider’s Address:
Date:
(Attached Notary Acknowledgment)
CITY OF FONTANA
BY: DATE:
City Engineer
Print Name
[ ] DENY
[ ] APPROVED
NEW DATE:
76 77
78 79
80 81
82 83
84 85
86 87
88 89
90 91
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1772 Agenda Date: 2/14/2023
Agenda #: E. Category: Consent Calendar
FROM:
Engineering
SUBJECT:
Final Acceptance of Sierra Avenue and Segovia Lane Offsite Improvements for Tract No. 18944 Located East of Sierra Avenue and North of Segovia Lane RECOMMENDATION:
1. Accept as complete the Sierra Avenue and Segovia Lane offsite improvements for Tract No. 18944.
2. Adopt Resolution No. 2023-009, accepting sewer in Sierra Avenue for Tract 18944 as part of the City sewer system.
COUNCIL GOALS:
· Invest in the City’sinfrastructure (streets, sewers, parks, etc.) by maintaining and improving the city's existing infrastructure.
· Invest in the City’sinfrastructure (streets, sewers, parks, etc.) by providing for the development of new infrastructure.
DISCUSSION:
LCD Sierra Crest, LLC constructed Sierra Avenue and Segovia Lane offsite improvements for Tract No. 18944 located east of Sierra Avenue and north of Segovia Lane.
Upon completion of the offsite improvements, acceptance by the City Council is required pursuant to Fontana Municipal Code, Section 26-184(b). The remaining in-tract public infrastructure improvements are not part of this action and will be considered for acceptance by a separate future action.
The offsite improvements, such as paving, curb and gutter, sewer, and storm drain have been completed to the satisfaction of the Department of Engineering. By accepting the improvements as complete, the City will be taking over the maintenance of these improvements.
This action will also authorize the release of the Faithful Performance Bond, which was posted to guarantee performance of the Subdivision Agreement. It will also authorize the release of the Labor and Material Bond after six months and the Warranty Bond after twelve months, less the total of any claims received by this date.
Tract Map Number Bond Number Bond Amount
18944 379777S $1,321,000
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92 File #: 21-1772 Agenda Date: 2/14/2023
Agenda #: E. Category: Consent Calendar
.
FISCAL IMPACT:
As part of the action to accept as complete Sierra Avenue and Segovia Lane offsite improvements for Tract No. 18944, these improvements will be deemed complete and the City will take over operation of this public infrastructure.
MOTION:
Approve staff recommendation.
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93 94
CITY OF FONTANA, CALIFORNIATRACT MAP NO. 18944
95 RESOLUTION NO. 2023-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FONTANA ACCEPTING THE OFFSITE SEWER FOR TRACT NO . 18944 AS
PART OF THE CITY’S SEWER SYSTEM
WHEREAS, Section 23 -388 of the Code of the City of Fontana provides that each addition to or extension of the sewer systems shall be accepted by Resolution of the City Council; and
WHEREAS, the Resolution of Acceptance shall contain the terms of any special consideration which shall apply to the sewer so accepted; and
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Fontana hereby accepts as a part of the City’s sewer system the sewer main and laterals constructed as part of Tract No. 18944 located east of Sierra Avenue and north of Segovia Lane. No special consideration shall apply to any lots in Tract No. 18944
APPROVED AND ADOPTED this 14th day of February, 2023.
____________________________________
City Attorney
I, Germaine McClellan Key , City Clerk and Ex -Officio Cl erk of the City of Fontana, C alifornia, do hereby certify that the foregoing Resolution is the actual Resolution duly and regularly adopted by the City Council at a regular meeting of said City Council on the 14th day of February, 2023, by the following to-wit:
AYES:
NOES:
ABSENT:
City Clerk of the City of Fontana
Mayor of the City of Fontana
ATTEST:
City Clerk
96 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1989 Agenda Date: 2/14/2023
Agenda #: F. Category: Consent Calendar
FROM:
Engineering
SUBJECT:
Approve Replacement of Securities for Tract No. 16898 Located South of Merrill Avenue and East of Catawba Avenue
RECOMMENDATION:
Approve replacement of securities for infrastructure improvements of Tract No.16898 and authorize the City Manager to enter into a Subdivision Agreement with Citrus Merrill, LLC for construction of infrastructure improvements.
COUNCIL GOALS:
· Invest in the City’s infrastructure (streets, sewers, parks, etc.) by maintaining and improving the city's existing infrastructure.
· Invest in the City’s infrastructure (streets, sewers, parks, etc.) by providing for the development of new infrastructure.
DISCUSSION:
Tentative Tract No. 16898 was approved by Planning Commission on May 24, 2004. As a requirement of the project, the developer was conditioned to build infrastructure improvements of Tentative Tract No. 16898 located south of Merrill Avenue and east of Catawba Avenue. Chan Ho Yang posted a Subdivision Improvement Agreement and Securities for infrastructure improvements on March 23, 2006. Recently, Citrus Merrill, LLC purchased the development from Chan Ho Yang and has posted a Subdivision Improvement Agreement and Securities in the amount of $229,341.00 to complete the required infrastructure improvements. Therefore, this action will allow the securities from Citrus Merrill, LLC to replace securities from Chan Ho Yang which will be released. The requirements for the development of the subdivision have not changed.
FISCAL IMPACT:
There is no fiscal impact.
MOTION:
Approve staff recommendation.
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SUBDIVISION IMPROVEMENT AGREEMENT
Tract Map No.:
THIS AGREEMENT is between the City of Fontana, a municipal corporation, County of San Bernardino, State of California ("City") and
("Subdivider" ):
WHEREAS, the application for tentative Tract Map No. , was conditionally approved on ; and
WHEREAS, Subdivider is the owner of that certain parcel of land defined by the Final Map and Subdivider proposes to do and perform certain work of improvement thereon as set forth in this agreement; and
WHEREAS, City desires to assure that the proposed improvements will be done in a good workmanlike manner and in accordance with the laws and standards now in force and effect in the City, the terms and conditions of which are incorporated herein by reference; and
WHEREAS, Subdivider declares acknowledgement the pertinent regulations contained in the City Code and in the Subdivision Map Act (Government Code Sections 66410 to 66500) and agrees to comply therewith; and
WHEREAS, a Fi nal Map of the subdivision, prepared in accordance with the City's Subdivision Ordinance, has been filed by Subdivider with City for approval by the City Council;
NOW THEREFORE, in consideration of the approval and acceptance of the Final Map by the City Council and the acceptance of easements therein offered for dedication for street, utility, and other public purposes and the covenants herein contained, the parties hereto mutually covenant and agree as follows:
1. General requirements:
Subdivider shall, at its own cost and expense, provide all required tests, design work, equipment, materials and labor in order to complete all of the improvements as associated with the requirements per the approved project or to the satisfac tion of the City Engineer of the City of Fontana.
All required improvements have an estimated cost of construction totaling ____________________________________________________________ ($ ) as shown on Exhibit " A".
Improvements are shown on approved plans on file with City Engineer.
The estimated cost of construction set forth in Exhibit “A” is for estimation purposes only, and for calculation of the amount of securities TR 16898
CITRUS MERRILL, LLC
16898
MAY 24, 2004
TWO HUNDRED TWENTY-NINE THOUSAND THREE HUNDRED FORTY-ONE DOLLARS 229,341
98 Revised – RP -09/22/2022
required pursuant to the provisions of section (2), below. Subdivider’s obligation to complete the improvements, or any portion of them, is not limited in any way by the estimated cost of construction, and the obligation of Subdivider’s surety in connection with the securities required pursuant to the provisions of section (2), below.
2. Security:
Subdivider shall, at all times, guarantee its performance of this agreement by furnishing to City and maintaining good and sufficient security as required by the State Subdivision Map Act on forms approved by City for the purposes and in the amounts as follows:
a. To ensure a faithful performance of this agreement in regard to the improvements in the amount of 100% of the estimated cost of construction of the improvements; and
b. To secure payment to any contractor, sub- contractor, pers ons renting equipment or furnishing labor or materials for the improvements required to be constructed or installed pursuant to this agreement in the additional amount of 100% of the estimated cost of construction of the improvements; and
c. To guarantee or warranty the work done pur suant to this agreement for a period of one (1) year following acceptance thereof by City Council of the City of Fontana against any defective work or labor done or defective materials furnished in the amount of 20% of the esti mated cost of construction of the improvements; and
d. To warranty the setting of required subdivision monuments within one - year following recordation of the Final Map in the amount of 100% of the estimated cost of setting subdivision monuments as shown in Exhibit "A".
e. To guarant ee the landscape maintenance of all landscape improvements for a period of one year (1) year following acceptance of thereof by the City.
The securities required by this agreement shall be kept on file with the City Clerk.
The terms of the security documents required by this agreement are hereby incorporated in this agreement by reference and copies attached hereto.
The security, which guarantees performance, can be released upon acceptance of the improvements by the City Council. The security which guarantees payment to contractor, sub- contractors and to persons furnishing labor, materials or equipment will be released 6 months after acceptance of the improvements by the 99 Revised – RP -09/22/2022
City Council, less the total of all claims to which the City has been given proper notice.
Securities may be released upon the final completion and acceptance of the work subject to the provisions herein. The City Council, in its absolute discretion, may release a portion of the security given for faithful performance of the improvement work as the improvement progresses upon application thereof by the Subdivider.
3. Time of Completion:
All of the required improvements shall be completed within 24 months from the effective date of this agreement. If the work is not completed within the specified time period because of acts of God, the public enemy, the City, or because of fire, flood, epidemic, quarantine restrictions, strikes or freight embargoes, the Subdivider shall be entitled to an extension beyond the specified time period for a period equal to the length of such delay within ten days from the beginning of such delay.
In addition to the extension for the reasons referenced in the foregoing paragraph, Subdivider may submit a written request , Exhibit “B” , for a discretionary extension of the time for completion of the improvements to the City Engineer.
The City Engineer may grant or reject such extension, in whole or in part or with conditions, in his sole discretion. If an extension of time is granted it shall in no way af fect the validity of this contract or release the surety on the securities referenced herein.
In the event that Subdivider fails to complete the improvements within the required period or any approved extension, the City may complete the work and shall be entitled to recover the full cost and expenses thereof from Subdivider, or his surety as herein provided. If City pursues completion of the improvement work, it may require Subdivider, or his surety, to pay the City in advance, sufficient monies to cover the City's cost in completing construction of the improvements.
Any limitations period provided by law related to breach of this Agreement or the terms thereof shall not commence running until Subdivider, or Subdivider’s surety pursuant to Section 2 of this Agreement, has provided the City Engineer with written notice of Subdivider’s intent to abandon or otherwise not complete the improvements.
4. Effective Date of Agreement:
This Agreement shall not become effective unless and until the Subdivision Ma p has been approved by the City Council of the City of Fontana and also accepted 100
Revised – RP -09/22/2022
the Final Map for reco rdation by the County Recorder of the County of San Bernardino.
5. Utility Deposits - Statements:
Prior to the commencemen t of any work to be performed within the area delineated on the Final Map, the Subdivider must file a written statement with the City Clerk and the City Engineer, signed by the Subdivider, and each public utility involved, to the effect that Subdivider has made all deposits legally required by such public utility for the connection/extension of any and all public serving utilities to be provided to or within the subdivision.
6. Permits - Compliance with Law:
Subdivider shall, at Subdivider's expense, obt ain all necessary permits and licenses, pay all charges, fees and taxes, and give all necessary and incidental notices to the due and lawful prosecution of the work.
7. Definition and Ownership of Improvements:
The term "improvements" means: grading, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities as shown in detail upon plans, profiles and specifications which have been prepared or are now in final preparation by engineers acting for Subdivider subject to approval by the City Engineer of the City of Fontana. No work on the improvements shall be commenced until plans and/or profiles therefore have been submitted, approved and permitted by the City Engineer. All required public improvements constructed or installed pursuant to this Agreement shall become the sole exclusive property of the City, without payment therefore, upon acceptance of the improvements by the City Council.
8. Obligations of Subdivider:
Notwithstanding the fact that Subdivider's plans and specifications, completion of the work, and other acts are subject to approval of the City, it is understood and agreed that any approval by the City thereof shall in no way relieve Subdivider of satisfactorily performing all work on the related obligations hereunder. The construction shall be done strictly in accordance with the plans and specifications prepared by Subdivider or its engineer, and as approved by the City as being consistent with the City Code and Standards. Subdivider warrants that its plans and specifications conform as a minimum to all City codes and standards and that they are adequate to accomplish the work in a good workmanlike manner and in accordance with responsible construction practices.
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9. Superintendence by Subdivider:
Subdivider shall personally supervise all work involved in the improvements, or shall designate a competent foreman or superintendent, satisfactory to the City Engineer, to supervise the work at all times during progress, with authority to act for Subdivider. In the event satisfactory superintendence is not being exercised by the Subdivider, the City Engineer may order suspension of all work within the subdivision until the deficiency is adequately corrected.
10. Repair and Replacements:
Subdivider shall replace, or have replaced, or repair, or have repaired, as the case may be, or pay to the owner the entire cost of replacement or repairs, for all survey monuments or for any and all property damaged or destroyed by reason of any work done hereunder, whether such property be owned by the United States or any agency thereof, or by the City or by any public or private corporation, or by any person whomsoever or by combination of such owners. Any such re pair or replacement shall be completed in a reasonable manner and subject to the approval of the City Engineer and affected property owner.
11. Inspection by City:
Subdivider shall at all times maintain proper facilities a nd provide safe access for inspection by City to all parts of the work and to the shops where the work is in preparation. The cost of inspections shall be paid by the Subdivider.
12. Approval by City Engineer.
All required improvements shall be constructed under the inspection of and subject to approval of the City Engineer. Therefore, it is mutually agreed by the parties hereto that the City Engineer shall have the right to reject any or all of the work to be performed under this contract if such work does not conform to the plans and specifications set forth herein or the City's Codes and standards. Any damage to the improvements (existing or new) that occurs during the course of work performed under this Agreement shall be repaired or replaced, by the Subdivider, to the satisfaction of the City Engineer before the final acceptance of completed work and release of security.
13. Liability for Performance Injury or Damage:
Neither the City nor any of its officers or agents shall be liable to Subdivider or its contractors for any error or omission arising out of or in connection with any work to be performed under this contract. Additionally, the City shall not be liable to the Subdivider or to any other person, firm, or corporation whatsoever, for any injury or damage that may result to any person or property by or from any 102
Revised – RP -09/22/2022
cause whatsoever in, on, or about the subdivision of said land covered by this Agreement, or any part thereof.
14. Indemnification and Release:
Prior to the commencement of any work pursuant to this contract, Subdivider's contractors shall furnish to City satisfactory evidence of an insurance policy written upon a form and by a company (which meets with the approval of City) insuring City, its officers, agents, and employees agains t loss or liability which may ar ise during the work or which may result from any of the work herein required to be done, including all costs of defending and claim arising as a result thereof. Minimum liability and property damage insurance shall not be less than $250,000 for all damages arising out of bodily injury to a death of one person and not less than $1,000,000 for all damages arising out of bodily injuries to or death of more than one person in any occurrence; and not less than $250,000 for all damages and/or destruction of property in any one occurrence and not less than $500,000 for all damages and/or destruction of property during the policy period.
Such policy shall be in favor of Subdivider or its contractors and of the City, its officers, agents, and employees and shall be maintained in full force and effect during the life of this contract. The policy shall state by its terms and by an endorsement that it shall not be cancelled until City shall have had at least ninety (90) days' notice in writing of such cancellation.
The Subdivider hereby releases and agrees to indemnify and save the City harmless from and against any and all injuries to and deaths of persons and injuries to property, and all claims, demands, costs, loss, damage and liabi lity, howsoever the same may be caused and whensoever the same may appear, resulting directly or indirectly from the performance or non- performance of any of or all work to be done in and upon premises adjacent thereto pursuant to this Agreement, and also from any and all injuries to and deaths of persons and injuries to property or other interests and all claims, demands, costs, loss, damage, and liability, howsoever same may be caused and whensoever the same may appear, either directly or indirectly made or suffered by the Subdivider, t he Subdivider's agents, employees, and sub- contractors, while engaged in the performance if the work.
15. Liability of Subdivider:
The Subdivider agrees that the use for any purpose and by any person of any and all of the streets, easements and improvements herein specified shall be at the sole and exclusive risk of the Subdivider at all times prior to final acceptance by the City of the completed street and other improvements thereon and therein; provided that acceptance by the City shall in no way eliminate or lessen any of Subdivider's obligations or undertakings contained in this Agreement. The issuance of any occupancy permits (if granted) by the City for buildings located within the subdivision shall not be construed in any manner to constitute an 103
Revised – RP -09/22/2022
acceptance and approval of any or all of the required improvements in said subdivision.
16. Relationship of Contractors:
It is hereby mutually covenanted and agreed by the parties hereto that Subdivider's contractors are not agents of the City, if any, are those of independent contractors.
17. Repair or Reconstruction of Defective Work:
If, within a period of up to one year after City Council acceptance of the improvement work performed under this Agreement, any of the improvements for work done under t his Agreement fails to fulfill any of the requirements of this Agreement, or the specifications referred to herein, Subdivider shall without delay and without any cost to the City (upon receipt of written notice from the Cit y), repair or replace or reconst ruct any defective of otherwise unsatisfactory part or parts of the work or structure. Should Subdivider fail to act promptly or in accordance with this requirement, or should the exigencies of the case require repairs or replacements to be made before Su bdivider can be notified, City may, at its own option, make the necessary repairs or replacements or perform the necessary work and offset that amount against any security pledged by Subdivider for faithful performance, labo r and materials, or warranty obl igations under this agreement.
18. Warranty:
Without limiting the foregoing, Subdivider warrants and guarantees: materials used and workmanship performed on said work for a period of one (1) year after completion and accep tance thereof by the City, and t he setting of all required Final Map monuments.
19. Assignment:
This agreement shall not be assignable by Subdivider without written consent of City.
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IN WITNESS WHEREOF, this agreement shall for all purposes be deemed an original thereof, having been duly executed by the Subdivider herein named on the day of , 20 being duly signed by its undersigned representative(s) pursuant to authority of its governing body.
SUBDIVIDER CITY OF FONTANA
By: By:
City Manager
Name ___________________________ Print Name
Title
By: Attest:
City Clerk
______________________________
Name _____________________________ Print Name
Title
APPROVED AS TO FORM:
By:
Best Best & Krieger LLP
City Attorney
Print Name
APPROVED AS TO CONTENT:
By:
City Engineer
_____________________________
Print Name
105
11/18/2021 - RG
STAFF USE ONLY
ENGINEERING PC NO.
__________________
CITY OF FONTANA
ENGINEERING DEPARTMENT
COST ESTIMATE - EXHIBIT "A"
DATE: _____________________
DEVELOPER PROJECT NAME__________________ ENGINEER TRACT MAP NO._________________ PHONE NO. PARCEL MAP NO. _______________
STREET IMPROVEMENTS
UNIT
ITEM QUANTITY UNIT COST AMOUNT
6" CURB & GUTTER _ L.F. 17.00 __
8" CURB & GUTTER L.F. 19.00 _
8" THICK CROSS GUTTER S.F. 11.00 _ 4" SIDEWALK S.F. 7.00 _
ACCESS RAMP EA 5,000.00 _ DRIVE WAY APPROACHES S.F. 11.00 _ ASPHALT CONCRETE DIKES L.F. 11.00 _ FOG SEAL S.F. .10 ____
IMPORTED EMBANKMENT C.Y. 10.00 _
PREPARATION OF SUBGRADE S.F. .50 _ *A.C. TON 150.00 _
*A.C.OVERLAY(0.20 THICKNESS)
PER CITY STANDARD TON 150.00 _ **PCC CURB ONLY (MEDIAN) L.F. 16.00 _ ADJUST SEWER MANHOLE TO GRADE EA 500.00 _
ADJUST SEWER CLEAN OUT TO
GRADE EA 300.00 _
ADJUST WATER VALVES TO GRADE EA 250.00 _ BARRICADES L.F. 40.00 _
2 X 4 REDWOOD HEADER L.F. 5.00 _ *REMOVAL OF A.C. PAVEMENT S.F. .66 _ **REMOVAL OF P.C.C. CURB L.F. 6.00 _ *REMOVAL OF A.C. BERM L.F. 5.00 _ RETAINING WALL H=2 1/2 FT.
OR LESS L.F. 40.00 ________
BLOCK WALL H=6 FEET L.F. 50.00 ________ AGGREGATE BASE TON 30.00 _ __
GUARD POSTS EA 70.00 _
GUARD PANEL (WOOD) L.F. 40.00 _ SAWCUT L.F. 3.50 _
REFLECTORS AND POSTS EA 100.00 _ STREET SIGNS EA 250.00 _
______________________ ________ EA _______ ________ ______________________ ________ EA _______ ________ ______________________ ________ EA _______ ________ ______________________ ________ EA _______ ________
STREET IMPROVEMENT SUBTOTAL __
* A.C. ASPHALTIC CONCRETE
** P.C.C. PORTLAND CONCRETE CEMENT
January 23, 2022
Emaar Enterprise
EGL Associates, Inc.
909-519-1355
Merrill TownHomes
16898
735
4,100
1 912
262
46 4,810
860
$13,965
$28,700
$5,000
$10,032
$39,300
$6,900
$3,175
$3,010
$101,082
CITY OF FONTANA
ENGINEERING
PRELIMINARILY APPROVED
BY
DATE
CONSTRUCTION APPROVED
CORRECTIONS
FINAL APPROVED
FOR INFORMATION ONLY
✔
Keith Tolliver
3/17/2022
106
11/18/2021 - RG
STORM DRAIN IMPROVEMENTS
UNIT
ITEM QUANTITY UNIT COST AMOUNT
* 18" RCP L.F. 90.00 ________
* 24" RCP L.F. 110.00 ________
* 30" RCP L.F. 250.00 ________
* 36" RCP L.F. 250.00 ________
* 42” RCP ________ L.F. 250.00 ________
* 48" RCP L.F. 260.00 ________
* 54" RCP L.F. 280.00 ________
* 60" RCP L.F. 300.00 ________
* 66” RCP ________ L.F. 320.00 ________
* 78” RCP ________ L.F. 340.00 ________
* 24” CMP ________ L.F. 90.00 ________
* 60” CMP ________ L.F. 320.00 ________
CATCH BASIN/CURB INLET:
W=7 EA 4,000.00 ________
W=10 EA 4,500.00 ________
W=14 EA 6,000.00 ________
W=21 EA 11,000.00 ________
W=28 EA 14,000.00 ________
JUNCTION STRUCTURE EA 3,200.00 ________
TRAFFIC TYPE JUNCTION
STRUCTURE EA 2,800.00 ________
DISCHARGE STRUCTURE EA 2,800.00 ________ MANHOLES EA 2,500.00 ________
LOCAL DEPRESSION EA 1,250.00 ________
GRATE INLET STRUCTURE EA 2,100.00 ________ _____________________ ________ EA ________ ________ _____________________ ________ EA ________ ________ _____________________ ________ EA ________ ________
STORM DRAIN IMPROVEMENT SUBTOTAL ________
* REINFORCE CONCRETE PIPE
SANITARY SEWER IMPROVEMENTS
UNIT
ITEM QUANTITY UNIT COST AMOUNT
MANHOLES 60" DIAMETER EA 4,500.00 ________ MANHOLES 48" DIAMETER EA 4,000.00 ________ DROP MAN HOLES EA 4,500.00 ________
WYES EA 100.00 ________
CLEANOUTS EA 600.00 ________
REMODELING OF EXISTING
MANHOLE EA 950.00 ________
** 4" VCP L.F. 50.00 ________
** 6" VCP L.F. 60.00 ________
** 8" VCP L.F. 70.00 ________
** 10" VCP L.F. 80.00 ________
** 12" VCP L.F. 90.00 ________
** 15" VCP L.F. 100.00 ________
__________________ ________ L.F. _______ ________
__________________ ________ L.F. _______ ________
SANITARY SEWER IMPROVEMENT SUBTOTAL ________
** VITRIFIED CLAY PIPE
2 440
$8,000
$30,800
$38,800
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TRAFFIC SIGNALS/SIGN/STRIPING
UNIT
ITEM QUANTITY UNIT COST AMOUNT
TRAFFIC SIGNAL MODIFICATION:
ONE CORNER L.S. 75,000.00 _
TWO CORNERS L.S. 100,000.00 _
TRAFFIC SIGNAL NEW L.S. 400,000.00 _ PAINT TRAFFIC STRIPE (1 COAT) L.F. 2.40 _ PAINT TRAFFIC STRIPE(2 COATS) L.F. .65 _ PEDESTRIAN CROSSWALK STRIPING L.F. .65 _
PAVEMENT MARKER
(NON REFLECTIVE) EA 2.50 ________
PAVEMENT MARKER (REFLECTIVE) EA 4.00 _ REFLECTORS AND POSTS EA 100.00 _ STREET SIGNS EA 250.00 _
___________________ ________ EA ________ ________ ___________________ ________ EA ________ ________
TRAFFIC SIGNAL/SIGNS/STRIPING SUBTOTAL __
CFD LANDSCAPE IMPROVEMENTS (BONDING PURPOSES ONLY)
AREA LANDSCAPED S.F. $12.00 _ CENTER MEDIAN S.F. $12.00 _
LANDSCAPING IMPROVEMENTS SUBTOTAL __________
SUBTOTALS:
STREET IMPROVEMENT SUBTOTAL....................___________________ STORM DRAIN IMPROVEMENTS SUBTOTAL..............___________________ SANITARY SEWER IMPROVEMENTS SUBTOTAL...........___________________ TRAFFIC SIGNAL/SIGNS/STRIPING SUBTOTAL.........___________________
IMPROVEMENT SUBTOTAL ===================
(*USE THIS TOTAL FOR PLAN CHECK & PERMITTING PURPOSES*)
CFD LANDSCAPE IMPROVEMENTS ....................___________________ SUBDIVISION MONUMENT GUARANTEE $1,200 + $50/LOT ...___________________ STREET LIGHTS _______ @ $5,000 ................___________________ CUCAMONGA COUNTY WATER DISTRICT FACILITIES.....___________________
IMPROVEMENT SUBTOTAL.... ===================
ADD 35%..................... ____________________
BONDING TOTAL........___________________
$101,082
$38,800
6 $30,000
$169,882
$59,459
$229,341
108
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APPROVED PUBLIC IMPROVEMENT PLANS:
STREET IMP. DWG. NO._____________________
STREET LIGHT DWG. NO.____________________
SEWER IMP. DWG. NO.______________________
STORM DRAIN IMP. DWG. NO. _______________
TRAFFIC SIGNAL DWG. NO.__________________
SIGNING & STRIPING DWG. NO.______________
RHGEILECIVILAFOCAINROF R
TSTA SI45846PRSSOFELGN-IJNNOEOINLAAGENIN
SIEGETERHKNAD
3923
3923LT
3924
CITY OF FONTANA
ENGINEERING
PRELIMINARILY APPROVED
BY
DATE
CONSTRUCTION APPROVED
CORRECTIONS
FINAL APPROVED
FOR INFORMATION ONLY
✔
Keith Tolliver
3/17/2022
109
Revised – RP -09/22/2022
SUBDIVISON IMPROVEMENT AGREEMENT
Tract Map No.:
Exhibit “B”
I,
(Subdivider’s name here)
am the owner of the property to which this Request is being made for of a Time Extension for Project No. .
Name:
Subdivider’s Signature:
Subdivider’s Address:
Date:
(Attached Notary Acknowledgment)
CITY OF FONTANA
BY: DATE:
City Engineer
Print Name
[ ] DENY
[ ] APPROVED
NEW DATE:
110
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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2002 Agenda Date: 2/14/2023
Agenda #: G. Category: Consent Calendar
FROM:
Development Services
SUBJECT:
Conveyance Agreement - Homeless Prevention and Resource Center property (APNs: 0232-171-09, -12, -13, -14 and 0232-171-05, -06, -07, and -08); and make findings of exemption under the California Environmental Quality Act (CEQA).
RECOMMENDATION:
1. Approve the agreement by and between Calmat Co and the City of Fontana for the conveyance to the City of Fontana of approximately 3.6 acres of land located at the southwest corner of Tokay Avenue and Arrow Blvd.
2. Authorize the City Manager to execute any documents necessary or appropriate to effectuate said approvals and/or agreement.
COUNCIL GOALS:
· Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by promoting diverse range of housing projects and levels of affordability.
· Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by address homelessness through proactive programs, including the efforts of the COAST and MET teams.
· Concentrate on Inter-governmental relations by establishing partnerships and positive working relationships with other public agencies providing services to residents and local businesses.
· Concentrate on Inter-governmental relations by pursuing financial participation from county, state and federal governments.
DISCUSSION:
The City Council has determined that resolving homelessness in the city is a top priority and has previously instructed staff to take all feasible actions in support of that goal. Acquisition of this property is necessary to enact the city’shomelessness prevention plan. In the past 12 months, the city has added its first transitional housing units, which include 14 multifamily units that will provide housing for singles or families in the area and the Bridge of Hope home, which will be the city’sfirst multitenant facility that provides 24-hour care and services for the home’s four residents. These facilities represent a bold first step in the city’s overall plan to resolve homelessness in the city.
The next step is the development of the Fontana Homeless Care and Resource Center. This new City of Fontana Printed on 2/10/2023Page 1 of 2
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File #: 21-2002 Agenda Date: 2/14/2023
Agenda #: G. Category: Consent Calendar
The next step is the development of the Fontana Homeless Care and Resource Center. This new homeless services community, at buildout, will include 84 individual occupancy units for transitional housing, more than one third of which include plans for 24-hour wrap around care services for the residents. Phase one of this community, approximately $12,000,000 in total development costs, will include 36 individual occupancy units for individuals that require, or will benefit from, 24-hour care, as well as 12 units for those that are more transitionally homeless and may not require 24-hour care.
The City Council previously allocated $8,000,000 of funding for this project and Congress has now awarded an additional $4,000,000 to the city, which will complete the funding for Phase 1 of this important community resource. Staff has been working with the property owner for nearly a year to come to terms for this conveyance.
The substantive deal points of the conveyance include:
· The City of Fontana will facilitate a general plan amendment and zone change application to accommodate the City’s intended use for the CalMat Co property and fund any required environmental review associated with these applications. Staff currently estimates the cost of the application, including environmental review, will be $200,000 or less.
· Calmat Co will prepare and process a lot line adjustment application to create a 3.6- acre parcel.
· If all applications are approved, upon final approval of each, the City will reimburse Calmat Co for the cost of processing the lot line adjustment, which costs are capped at $10,000, and Calmat Co will convey 3.6 acres to the City of Fontana.
Approval of the Conveyance Agreement and acquisition of the subject property will enable the development of the city’s most important homeless services and housing facility.
FISCAL IMPACT:
Monies are available for the processing of the general plan amendment and zone change applications and associated environmental document preparation, along with reimbursement of the processing costs for the lot line adjustment (total estimated cost of not more than $210,000) - in Fund 302 - ARPA Funding.
MOTION:
Approve staff recommendation.
City of Fontana Printed on 2/10/2023Page 2 of 2
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AGREEMENT FOR CONVEYANCE
OF REAL PROPERTY AND JOINT ESCROW INSTRUCTIONS
BY AND BETWEEN
CALMAT CO., a Delaware corporation
AND
CITY OF FONTANA,
a California municipal corporation, as Buyer
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AGREEMENT FOR CONVEYANCE OF REAL PROPERTY
AND JOINT ESCROW INSTRUCTIONS
This Agreement for Conveyance of Real Property and Joint Escrow Instructions (“Agreement”) is entered into as of ___________, 2023 (“Effective Date”), by and between the City of Fontana , a California municipal corporation (“City”), and CALMAT CO. , a Delaware corporation (“Seller”), with reference to the Recitals set forth below. This Agreement shall also constitute the joint escrow instructions of City and Seller to Chicago Title Insurance Company (“Escrow Holder ”). Seller and City are sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties”.
RECITALS
A. Seller owns various parcels of land located in the Cit y (“ Land”), as more particularly described on Exhibit “A”, attached hereto and made a part hereof.
B. City, in conjunction with others, wishes to develop, construct and operate facilities on a portion of the Land that will provide services to disadvantaged individuals in the community.
To that end, City has an interest in acquiring by gift from Seller a portion of the Land, consisting of approximately 3.6 acres of land bordered on the north by Arrow Route and on the east by Tokay Avenue (“Subject Property”), as further depicted on Exhibit “B”.
C. Seller is willing to convey the Subject Property to City, conditioned on (1) City obtaining the final and non-appealable entitlements, including the rezoning described below (“City Project Entitlements”), that it requires to develop the Subject Property for the intended purposes (“City Project”), (2) Seller approving (in Seller’s reasonable discretion) the scope and effect of the City Project Entitlements , (3) City preparing engineering plans and construction dr awings sufficient to construct the City Project, (4) City providing evidence that it has the funding required to carry out the City Project, and ( 5) City providing assurances which are acceptable to Seller, in its reasonable discretion, that City is prepared to immediately commence construction of the City Project on conveyance of the Subject Land to City.
D. Prior to conveying the Subject Property, Seller intends to pursue a Lot Line Adjustment and a recordable certificate of compl iance, certifying that the Subject Property is a legal parcel under the Subdivision Map Act (“Lot Line Adjustment”).
E. The Land is currently zoned as “OS-N: Open Space – Natural.” In order to facilitate the City Project, and as part of the City Project Entitlements, City desires to rezone the Land from OS-N: Open Space – Natural to “M-1: Light Industrial.”
F. The Parties desire to enter into this Agreement to document the transaction contemplated herein between Seller and City based on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Seller hereby agree as follows:
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AGREEMENT
1. Conveyance of the Subject Property. Seller hereby agrees to grant and convey to City, and City hereby agrees to accept from Seller, the Subject Property, which shall include the following:
1.1 Real Property. That certain land located in the City, and more particularly depicted on Exhibit “B” attached hereto and made a part hereof, together with any and all easements, rights -of-way, privileges, rights and appurtenances, benefiting, appertaining or belonging to such land , including, without limitation, any and all streets and roads (whether opened or proposed) abutting the Subject Property and/or oil, gas or other minerals laying under the Subject Property (collectively, the “Real Property”);
1.2 Intentionally Deleted.
1.3 Intangible Property. All of Seller’s right, title and interest in, to and arising out of, the Real Property and/or development entitlements related to the Real Property , including, but not limited to, all applications, reports, studies, permits, licenses, plans, maps, site plans, drawings, specifications, surveys, consultant work product, warranties, guaranties, agreements, contracts, development agreements, utility rights, development rights, approvals, entitlements, indemnities, claims, third party claims (including claims against previous owners or developers of the Real Property, any contractors, subcontractors, consultants or other suppliers of materials or services with respect to the Real Property), actions or defenses, prepaid development fees, credits, deposits, sewer credits, rights of reimbursement, governmental permits, certifications, licenses, variances, specific plan amendments, general plan amendments, maps, negative declarations, environmental impact reports, CEQA findings and determinations, will serve letters and all similar rights specifically related to the Real Property and which are severable form the adjacent portions of the Land , whether granted by governmental or quasi - governmental authorities or private persons or entities (collectively, the “Intangible Property”).
All references to the Subject Property shall be deemed to include the Real Property and the Intangible Property. City shall not assume any liabilities or obligations relating to the Subject Property unless expressly provided in this Agreement.
2. Consideration.
2.1 Intentionally Deleted.
2.2 Specific Consideration.
2.2.1 Entitlement Processing. As consideration for Seller’s covenants and representations in this Agreement, City agrees to: (1) process the City Project Entitlements on or before the Closing, (2) prepare, at its sole cost and expense, any CEQA analysis required for the City Project Entitlements, and (3) pay, at its sole cost and expense, any City processing fee , including any costs related to such analysis as may be n eeded in connection with processing the City Project Entitlements. Notwithstanding the foregoing, Seller shall be responsible, at no cost to Seller, to sign any entitlement applications, authorizations, or other documents as may be required by City in ord er to process the City Project Entitlements , and otherwise reasonably 130
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cooperate with City’s staff to facilitate the processing of the City Project Entitlements. The Parties affirmatively agree that the City cannot bind itself or otherwise pre-commit to approving the City Project Entitlements , and in the event of City’s refusal or failure to grant the City Project Entitlements, such refusal or failure shall not be a breach of this Agreement. Accordingly, City’s obligations with regard to the City Project Entitlements shall solely be to process the City Project Entitlements, which may result in approval, conditional approval, or denial. However, and pursuant to Paragraph 5.3.1, the approval of the City Project Entitlements prior to Closing shall be a condition precedent to Seller’s obligation to convey the Subject Property to City.
2.2.2 Seller’s Discretionary Review . Seller shall have the right to review and approve (in Seller’s reasonable discretion) the scope and effect of the City Project Entitlements, including the legal description of the Land proposed to be rezoned . Seller shall review and approve or disapprove the City Project Entitlements within thirty (30) days after City delivers a complete application to Seller.
2.3 Independent Consideration. A sum of ONE HUNDRED DOLLARS AND ZERO CENTS ($100.00) (“ Independent Consideration ”) shall be deposited by City with Escrow Holder and be non -refundable to City under any circumstances as independent consideration for the rights extende d to City under this Agreement. The Independent Consideration shall be released to Seller immediately following Buyer’s deposit of the Independent Consideration into Escrow. The Independent Consideration shall paid by City.
3. Title.
3.1 Preliminary Title Rep ort. Seller shall order from Cheryl Ynez ([email protected]) of Chicago Title Insurance Company (“Title Company”), for delivery to City and Seller within thirty (30) days after the Effective Date, a current preliminary title report pertaining to the Real Property, together with complete and legible copies of all documents relating to the title exceptions and other matters referred to in such prelimi nary title report and a color-coded map plotting all easements referenced in such preliminary title report (collectively, the “Preliminary Title Report”).
3.2 Survey. City may obtain an ALTA survey for the Subject Property (the “Survey”) prepared by an engineer selected by City in its sole discretion, provided that City shall pay for the cost of such Survey.
3.3 Title and Survey Exceptions. On or before the date that is thirty (30) days following City’s receipt of the Preliminary Title Report, City shall notify Seller in writing (“Title Objection Notice ”) of any title exceptions identified in the Preliminary Title Report and/or Survey that City disapproves in its sole discretion ( “Title Objections”). Subject to Section 3.4 below, any exception shown on the Preliminary Title Report that is not listed as a Title Objection in City’s Title Objection Notice will be deemed approved by City and shall constitute a “Permitted Exception” hereunder. City and Seller hereby agree that all non-delinquent property taxes and assessments as of the Closing shall be deemed a Permitted Exception. Notwithstanding anything to the contrary contained in this Agreement, City hereby disapproves all deeds of trust, delinquent taxes and assessments and other monetary liens affecting the Land (other than liens for non -delinquent property taxes and assessments as described above) and Seller hereby 131
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covenants to cause all such disapproved liens to be satisfied at Seller ’s sole cost and expense (including all prepayment penalties and char ges) before or concurrently with the Closing from sales proceeds or otherwise. If City fails to timely provide a Title Objection Notice, such failure shall be deemed an election by City to approve all title exceptions identified in the Preliminary Title Report. Seller shall have a period of ten (10) business days following its receipt of the Title Objection Notice within which to notify City in writing ( “Title Objection Response ”) of its agreement to remove, alter, modify or otherwise mitigate to the satisfaction of City and Title Company any Title Objection, in Seller’s sole discretion. Seller’s failure to timely provide a Title Objection Response will be deemed an election by Seller to not cure the Title Objections prior to the Closing. In the event that pursuant to Seller’s Title Objection Response Seller is not willing to remove, alter, modify or otherwise mitigate to the satisfaction of City and Title Company any Title Objection, City shall elect, prior to the expiration of the date that is ten (10) business days after City’s receipt of the Title Objection Response, to either (i) waive its disapproval of such exception, in which case such exception shall then be deemed to be a Permitted Exception, or (ii) terminate its obligation to acquire the Subject Property. City’s failure to give such notice shall be deemed an election to terminate its obligation to acquire the Subject Property. In the event City elects or is deemed to have elected to terminate its obligation to acquire the Subject Property in accordance with this Section, City’s obligation to acquire, and Seller’s obligation to convey, the Subject Property shall terminate, and neither Party shall have any further rights or obligations to the other except as otherwise provided in this Agreement.
3.4 Additional Exceptions. In the event of any supplement to or update of the Preliminary Title Report, or if the Survey discloses additional title exceptions (other than any resulting from City’s activities on the Real Property), City shall have an additional ten (10) day period following City’s receipt of such supplement or update to approve or disapprove such item in its sole discretion. Seller shall have a period of ten (10) days following Seller’s receipt of such disapproval to notify City in writing of its agreement to remove, alter, modify or otherwise mitigate to the satisfaction of City and Title Company such disapproval, in Seller’s sole discretion.
Seller’s failure to timely provide a response will be deemed an election by Seller to not cure such disapproval prior to the Closing. In the event that Seller is not willing to remove, alter, modify or otherwise mitigate to the satisfaction of City and Title Company such disapproval, City shall elect, prior to the expiration of the date that is ten (10) days after City’s receipt of the Seller’s response, to either (i) waive its disapproval of such exception, in which case such exception shall then be deemed to be a Permitted Exception, or (ii) terminate its obligation to acquire the Subject Property. If necessary, the Closing Date (defined below) will be extended on a day for day basis in order to complete the forgoing process.
4. Due Diligence Investigations.
Physical Inspections. Subject to compliance with the terms and conditions set forth below, from the Effective Date until the Closing, City and City’s agents, employees, contractors, consultants and representatives (collectively, “City’s Agents”) shall be entitled to enter onto the Subject Property to perform a complete review of the Subject Property and all matters related to the Subject Property as City determines is necessary in City’s sole discretion and to perform any inspections, investigations, and tests of the Subject Property , including but not limited to, geotechnical soil borings, test pits , physical inspections and other environmental tests 132
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of the Subject Property, all at City’s sole cost and expense. In connection with City’s or City’s Agents’ entry on the Subject Property City shall comply with all of the following:
(a) City shall keep the Subject Property free and clear of all liens arising out of City’s and City’s Agents’ activities conducted upon the Subject Property . City shall indemnify, defend and hold Seller and the Subject Property free and harmless of and from all costs, expenses, damages, claims, liabilities, attorneys’ fees and costs or charges arising out of, or in any way connected with, the entry upon the Subject Property by City and City’s Agents, but excluding any latent defects or hazardous materials discovered by City during its investigation of the Subject Property, unless exacerbated as a result of City’s activity on or related to the Subject Property. (b) City or City’s Agents prior to entering the Subject Property shall provide Seller with a certificate of gen eral liability insurance, or equivalent instrument, with a combined single limit of liability not less than One Million Dollars ($1,000,000.00). (c) City, at City’s sole cost, shall repair all damage or injury caused by City or City’s Agents in connection with any such inspection or entry and shall return the Subject Property to the condition existing prior to such entry, but excluding any latent defects or hazardous materials discovered by City during its investigation of the Subject Property. (d) City shall conduct any such inspections at reasonable hours and at times mutually acceptable to Buyer and Seller.
(e) At least two (2) business days prior to any entry onto the Subject Property, City shall deliver to Seller written notice specifying t he day and time of entry and generally describing the scope of the Inspections to be completed. Seller may, in its sole discretion, accompany City during any entry.
(f) City shall not conduct any invasive testing, groundwater sampling or soil boring without first providing Seller a complete copy of City’s proposed work plan and without obtaining Seller’s express prior written consent (to be provided or withheld in Seller’s reasonable discretion).
(g) Seller shall make reasonable efforts to provide to City any report in its possession regarding the environmental condition of the Real Property, within thirty (30) days following the Effective Date.
4.1 Intentionally Deleted.
4.2 Due Diligence Period; City’s Right to Terminate . City shall have the absolute right, during the period commencing on the Effective Date and expiring at 5:00 p.m.
California time on the ninetieth (90th) day thereafter (the “Due Diligence Period ”), to elect to approve or disapprove, in City’s sole discretion, the suitability of the Subject Property for City’s intended purposes. In the event City (for any reason or no reason) disapproves the Subject Property, City may terminate its obligation to acquire the Subject Property by delivering written notice (“Disapproval Notice”) of its disapproval of the Subject Property to Seller at any time prior to the expiration of the Due Diligence Period . In the event City elects to terminate its obligation to acquire the Subject Property in accordance with this Section, City’s obligation to 133
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acquire, and Seller’s obligation to convey, the Subject Property shall terminate, and neither Party shall have any further rights or obligations to the other except as otherwise provided in this Agreement. In the event that City elects in its sole discretion to approve all matters relating to the Subject Property, then prior to the expiration of the Due Diligence Period, City shall deliver written notice (“Approval Notice”) of its approval of the Subject Property to Seller. If City fails to deliver a Disapproval Notice or an Approval Notice to Seller prior to the expiration of the Due Diligence Period, City shall be deemed to have delivered an Approval Notice.
4.3 Acknowledgement. City acknowledges that the Subject Property was formerly used as a sand and gravel mine and that the current physical condition of the Subject Property may reflect the prior use of the Subject Property for such purposes. City further acknowledges that this Agreement affords City access to the Subject Property to complete its own investigation concerning the physical condition of the Subject Property. City represents to Seller that, prior to the expiration of the Due Diligence Period, City will have made all inquiries, inspections, tests, audits, studies and analyses that it deems necessary or desirable in connection with purchasing the Subject Property , and will have approved the results thereof (including, without limitation, engineering tests, environmental assessments, economic feasibility studies, land use and development entitlements and restrictions, soils and geologic reports and tests and inquiries of governmental authorities, and matters related to the drainage of storm water from the Subject Property) prior to the waiver or satisfaction of the contingencies set forth in Sections 3 and 4 (the “ Contingencies”). City hereby acknowledges that it is relying solely on its own inspections, tests, audits, studies and investigations conducted in connection with, and upon City’s own judgment and verified information with respect to, acquiring the Subject Property , and is not relying on any representation or statement of Seller or any materials, data or other information supplied by Seller. Without limiting the generality of any other provision of this Agreement, upon the satisfaction or waiver of the Contingencies, City agrees that: (a) City shall be deemed to have accepted all risk associated with all defects, adverse physical characteristics and existing environmental conditions related to the Subject Property that may or may not have been revealed by City’s investigation and any environmental report, including such defects and conditions, if any, that cannot be observed by casual inspection; and (b) as between Seller and City, City shall be deemed to have accepted all costs and liabilities associated in any way with the phy sical and environmental condition of the Subject Property (i.e., Seller will have no obligation to repair, correct or compensate City for any condition of the Subject Property , including defects in the Improvements, noncompliance with applicable laws and r egulations, whether or not such condition of the Subject Property was disclosed by City’s due diligence).
5. Conditions Precedent . The following shall be the conditions precedent to the Parties’ obligations to consummate the conveyance transaction contemplated herein:
5.1 Conditions to City’s Obligations. City’s obligations hereunder, including, but not limited to, its obligation to consummate the conveyance transaction provided for herein, are subject to the satisfaction, in City’s sole discretion, of each of the following conditions, each of which is for the sole benefit of City and may only be waived by City in writing:
5.1.1 Owner’s Policy. Title Company shall be irrevocably committed to issue, at the Closing, its standard coverage owner ’s title insurance policy, and provided City provides the Survey to the Title Company (in a form that meets the Title Company ’s reasonable 134
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requirements), its extended coverage ALTA Owner’s Title Insurance Policy (2006 Form) in a form satisfactory to City, with liability selected by City and agreed to by Title Company , showing fee title to the Subject Property vested in City, free and clear of any and all tenancies and/or rights of third parties affecting all or any portion of the Subject Property , subject only to the Permitted Exceptions (the “Owner’s Policy”).
5.1.2 Due Performance . Seller shall not be in default under this Agreement, and shall have duly performed each and every covenant, undertaking and agreement to be performed by it prior to the Closing.
5.1.3 Seller’s Representations and Warranties . Each representation and warranty made in this Agreement by Seller shall be true and correct at the time as of which the same is made and as of the Closing.
5.1.4 Intentionally Deleted.
5.1.5 Intentionally Deleted.
5.1.6 Intentionally Deleted.
5.1.7 Seller Deliveries. Seller shall have delivered to Escrow Holder the items described in Section 7 hereof.
5.1.8 No Pending Action. There shall exist no pending or threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or oth er proceedings, against the Seller that would materially and adversely affect the Seller’s ability to unconditionally perform its obligations under this Agreement; and there shall exist no pending or threatened action, suit or proceeding with respect to the Seller before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a discovery order with respect to, this Agreement or the consummation of the transactions contemplated hereby.
5.1.9 Intentionally Deleted.
5.1.10 Removal of Personal Property. All items of personal property , if any, shall have been removed from the Subject Property.
5.2 City’s Waiver of Conditions. City may at any time or times on or before the Closing, at its sole election, waive any of the conditions precedent to City’s obligations under Section 5.1 or otherwise and consummate the conveyance, but any such waiver shall be effective only if contained in a writing signed by City and delivered to Seller. In the event any of the conditions precedent for the benefit of City that are contained in this Agreement are not completely fulfilled and satisfied, then in addition to any other rights or remedies City may have, City may terminate its obligation to acquire the Subject Property . In the event City elects to terminate its obligation to acquire the Subject Property in accordance with this Section, City’s obligation to acquire, and Seller’s obligation to convey, the Subject Property shall terminate, and neither Party shall have any further rights or obligations to the other except as otherwise provided in this Agreement.
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5.3 Conditions to Seller ’s Obligations . Seller ’s obligations hereunder, including, but not limited to, its obligation to consummate the transaction provided for herein, are subject to the satisfaction, in Seller’s sole discretion, of each of the following conditions, each of which is for the sole benefit of Seller and may be waived by Seller in writing:
5.3.1 Grant of Entitlem ents. Prior to the Closing, City shall have granted the City Project Entitlements, and they shall have become final and non -appealable. As further explained in Section 2.2, this Agreement does not require the City to grant the City Project Entitlements, but the grant of City Project Entitlements shall be a condition precedent to Seller ’s obligations hereunder, and if the City Project Ent itlements are not granted, Seller shall have no obligation to convey the Subject Property to City.
5.3.2 Lot Line Adjustment . Prior to the Closing, Seller shall have processed and received approval from City of the Lot Line Adjustment to create a separate leg al parcel under the Subdivision Map Act for the Subject Property. All Seller’s costs associated with the Lot Line Adjustment are subject to reimbursement by City at the Closing (“LLA Reimbursement”). The LLA Reimbursement shall not exceed Ten Thousand Doll ars ($10,000.00).
5.3.3 City Deliveries. City shall have delivered to Escrow Holder the items required to be delivered by City pursuant to Section 8 hereof.
5.3.4 Due Performance . City shall not be in default under this Agreement and shall have duly performed each and every covenant, undertaking and agreement to be performed by it prior to the Closing hereunder.
5.3.5 City’s Representations and Warranties. Each representation and warranty made in this Agreement by City shall be true and correct at the time as of which the same is made and as of the Closing.
6. Covenants During Escrow. From the Effective Date until the earlier of the Closing or the termination by City or Seller of its obligation to complete the transfer of the Subject Property, City and Seller, as applicable, covenant and agree to the following:
6.1 Operation of the Subject Property Prior to Closing.
6.1.1 Affirmative Covenants . Seller shall ( i) pay all taxes and assessments with respect to the Subject Property prior to delinquency, (ii) maintain property and liability insurance related to the Real Property at the level and with the insurance companies that Seller currently maintains, and (iii) Pursue diligently and in good faith City’s approval of the Lot Line Adjustment. Without limiting the generality of the foregoing, Seller shall file the application for approval of the Lot Line Adjustment within ninety (90) days after the Effective Date.
6.1.2 Negative Covenants . Seller shall not, except as otherwise specifically permitted or required pursuant to this Agreement, or as otherwise agreed or permitted by City in writing in City’s sole discretion, (i) grant, create or allow the creation of any easement, right-of-way, encumbrance, lien, restriction, right of occupancy or assessment affecting the Subject Property or otherwise cause or permit any other change to the state of title with respect to 136
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the Subject Property , (ii) amend, extend or otherwise modify the terms of any existing lease, easement, right -of-way, encumbrance, lien, restriction or assessment that aff ects the Subject Property; or (iii) sell, transfer or otherwise convey or terminate, amend or otherwise modify any Intangible Property.
6.2 Termination of Leases. If any lease, licenses or occupancy rights exist with respect to the Subject Property, Seller hereby covenants at its sole cost and expense to terminate any such leases, licenses or rights so that Seller can deliver exclusive possession of the Subject Property to City at Closing free of any lease, license or occupancy rights.
6.3 Additional Seller Disclosures. Seller shall promptly advise City in writing of any material adverse change in the condition of any of the Subject Property, the occurrence of any event or the discovery of any fact which would render any representation or warranty of Seller to City in this Agreement untrue or materially misleading, and any written notice or other communication from the City, or any other governmental or quasi -governmental entities or agencies with jurisdiction over the Subject Property or operations thereon (any of the foregoing, a “Governmental Authority ,” and collectively, the “Governmental Authorities ”) or third person alleging that the consent of such third person is or may be required in connection with the transactions contemplated by this Agreement.
6.4 Additional City Disclosures. City shall promptly advise Seller in writing of the occurrence of any event or the discovery of any fact which would render any representation or warranty of City to Seller in this Agreement untrue or materially misl eading, and any written notice or other communication from the Seller, or any Governmental Authorities or third person alleging that the consent of such third person is or may be required in connection with the transactions contemplated by this Agreement.
6.5 Seller Contracts . The parties acknowledge that Seller is a party to an agreement with City to sell City right of way at the corner of Arrow and Tokay.
6.6 City Covenant. City shall diligently and in good faith pursue approval by City of the City Project Entitlements.
7. Seller’s Closing Deliveries. Seller shall deliver or cause to be delivered to Escrow Holder the following items:
7.1 Within ten (10) days after City has approved the Lot Line Adjustment, one (1) fully-executed and acknowledged grant deed conveying the Real Property in the form attached hereto as Exhibit “C” and containing the legal description of the Subject Property approved through the Lot Line Adjustment (“Grant Deed”) with all documentary transfer tax information disclosed on a separate declaration, which shall be affixed to the Grant Deed by the Escrow Holder after recordation thereof;
7.2 Not less than one (1) business day prior to the Closing, a Certificate of Non- Foreign Status duly executed by Seller certifying that Seller is no t a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, together with the equivalent California form (Form 593 -C) confirming that Seller is not subject to any 137
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withholdings pursuant to the California R evenue & Taxation Code (collectively, the “Non- Foreign Affidavits”);
7.3 Within ten (10) days after City has approved the Lot Line Adjustment , evidence that Seller has obtained approval from City of the Lot Line Adjustment creating the Subject Property as a separate legal parcel.
7.4 Not less than one (1) business day prior to the Closing, any other document, instrument or agreement necessary to consummate the transactions contemplated herein reasonably requested by City or Escrow Holder.
8. City’s Closing Deliveries. Not less than one (1) business day prior to the Closing, City shall deliver to Escrow Holder any documents, instruments or agreements necessary to consummate the transactions contemplated herein reasonably requested by Seller or Escrow Holder.
9. Escrow and Closing.
9.1 Escrow Instructions . When this Agreement or counterparts hereof shall have been executed by Seller and City and delivered to Escrow Holder, it shall constitute Escrow Holder’s escrow instructions. Any standard form escrow instructio ns submitted by Escrow Holder or any other clarification or addition to the instructions contained herein shall, when executed by City and Seller, constitute additional escrow instructions. In the event of any conflict between such additional instructions and this Agreement, the terms of this Agreement shall prevail.
9.2 Closing. The “Closing” or “Closing Date” means the date on which the Grant Deed conveying title to the Subject Property to City is recorded. The Closing shall occur within thirty (30) days of the date upon which the City Project Entitlements are approved and become final and non-appealable, or such later date as extended by mutual written agreement of the Parties. City shall provide notice to Seller and Escrow Holder not less than fourteen (14) days in advance of the Closing at which time each of the Parties shall deposit any portion of their estimated pro-rata share of estimated closing costs with Escrow Holder not previously deposited.
Provided that Escrow Holder shall not have received written notice in a timely manner from City or Seller of the failure of any condition to the Closing or of the termination of the Escrow, and if and when City and Seller have deposited into Escrow the funds and documents required by this Agreement, and Title Company is irrevocably committed to issue the Owner ’s Policy concurrently with the Closing, Escrow Holder shall:
9.2.1 Record Documents. Cause the Grant Deed to be recorded in the Official Records of the County in which the Subject Property is located;
9.2.2 Deliver to City. Immediately upon the recording of the Grant Deed, deliver to City: (i) a conformed copy of the Grant Deed; (ii) the Non-Foreign Affidavit; (iii) any funds deposited by City in excess of the amount required to be paid by City hereunder; and (iv) the Owner’s Policy issued by Title Company.
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9.2.3 Deliver to Seller. Immediately upon the recording of the Grant Deed, deliver to Seller the LLA Reimbursement, after satisfying the closing costs, prorations and adjustments to be paid by City pursuant to this Agreement.
9.2.4 Outside Closing Date. In the event the City Project Entitlements and the Lot Line Adjustment have not been completed before the first anniversary of the Effective Date, Seller shall have the right to terminate this Agreement, and in that event, neither Seller nor City shall have further rights or obligations under this Agreement, except for those which expressly survive the termination of this Agreement.
9.3 Real Estate Reporting Person . Escrow Holder is hereby instructed to comply with all applicable Federal, state, and local reporting and withholding requirements relating to the close of this transaction. Escrow Holder is hereby designated the “real estate reporting person” for purposes of Section 6045 of Title 26 of the United States Code and Treasury Regulation 1.6045-4 and any instructions or settlement statement prepared by Escrow Holder shall so provide. Upon the consummation of the transaction contemplated by th is Agreement, Escrow Holder shall, in addition to complying with any applicable state and local requirements, file Form 1099 information return and send the statement to Seller as required under the aforementioned statute and regulation.
10. Closing Costs . City shall pay all closing costs including (i) Escrow Holder ’s escrow fee; (ii) any charges for title coverage and any additional title endorsements requested by City; (iii) all of the city, county and/or other documentary transfe r stamps, taxes and/or fees; and (iv) the cost of recording the Grant Deed. City shall pay for all of Title Company ’s charges for endorsements to the Owner’s Policy required to cure Title Objections that Seller has agreed to cure pursuant to Section 3 hereof. All other closing cost s and charges shall be paid by City. The foregoing provisions of this Section notwithstanding, should the obligations of City to acquire, and Seller to convey, the Subject Property be terminated in accordance with this Agreement, City shall pay the cost of the escrow cancellation fees and other amounts due Escrow Holder and the Title Company; provided, however, that should this Escrow be terminated as a result of Seller default, Seller shall pay the cancellation fees and other amounts due Escrow Holder and Title Company.
City and Seller shall each pay their own attorneys ’ fees in connection with the preparation and negotiation of this Agreement and in connection with the consummatio n of the transactions contemplated hereby.
11. Prorations. All non -delinquent taxes and assessments applicable to the Subject Property, including, without limitation, all property taxes and assessments shall be prorated as of the Closing on the basis of the a ctual number of days of the month that have elapsed as of the Closing and based upon a three hundred sixty -five (365) day year. With respect to prorations related to real property taxes and assessments, the basis for said proration shall be the amount shown for real property taxes and assessments in the most recent installment for the fiscal year in which the Closing occurs. If no installment for the fiscal year in which Closing occurs is available, City and Seller shall reasonably estimate such installment which shall be used to prorate taxes and assessments. No adjustment shall be made for any change in the real property taxes and assessments occurring by virtue of the conveyance of the Subject Property to City. The amount of such prorations shall be subject to adjustment in cash after the Closing outside of Escrow as and when complete and accurate information becomes available, if such information is not available 139
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on the Closing Date. Seller and City agree to cooperate and use their best efforts to ma ke such adjustments prior to ninety (90) days after the Closing.
12. Representations and Warranties.
12.1 Representations and Warranties of Seller . Seller , to Seller’s actual knowledge without investigation, hereby makes the following representations and warranties to City (which City is relying upon), which representations are true in all respects as of the date hereof and as of the Closing . Seller’s actual knowledge shall mean the actual knowledge of Michael Linton without investigation (and by making such representation Mr. Linton undertakes no personal liability).
12.1.1 Due Authorization. Seller is a corporation duly formed under the laws of the State of Delaware, is in good standing, and has been qualified to do business in the State of California. The execution, delivery and performance of this Agreement by Seller have been duly authorized by the requisite action on the part of Seller, and no other authorization or consent is required therefor. No approvals, authorizations or consents of any public body or any other person or entity (except for those already obtained) are necessary in connection with this Agreement or the transactions contemplated hereby. This Agreement constitutes the legal, valid , and binding obligation of Seller, and is enforceable in accordance with its terms against Seller, subject only to applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws or equitable principles affecting or limiting rights of contracting parties generally.
12.1.2 Intentionally Deleted.
12.1.3 Eminent Domain. To Seller’s actual knowledge, t here are no existing, proposed, threatened or contemplated eminent domain proceedings that would affect the Subject Property in any way whatsoever.
12.1.4 Litigation. There is no adverse claim, litigation or administrative proceeding or investigation pending or, to the Seller’s knowledge, threatened, that does or will affect Seller’s ability to perform its obligations under this Agreement.
12.1.5 Intentionally Deleted.
12.1.6 Intentionally Deleted.
12.1.7 Defaults. Seller is not in default under, nor has Seller received, any notice that any event has occurred which with the giving of notice or the passage of time, or both, would constitute a default under, any agreement, obligation, liability, covenant, condition, restriction, easement, encumbrance or any entitlement or governmental approval or requirement pertaining to any of the Subject Property.
12.1.8 Hazardous Materials . Seller has not received notice that any hazardous materials exist on or under the Subject Property.
12.1.9 Bankruptcy. No attachments or execution proceedings and no assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other 140
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proceedings are pending or threatened against Seller or concerning all or part of the Subject Property, nor are any of such proceedings contemplated by Seller, nor has Seller ever been a debtor under any case commenced under the United States Bankruptcy Code.
12.1.10 Other Matters . There are (i) no agreements, written or oral, under which Seller is or could become obligated to sell, convey, transfer or lease the Subject Property, or any portion thereof or any right, title or interest therein, to a third party subject to the Permitted Exceptions , (ii) no liens, easements, encumbrances, prescriptive rights, contracts or other agreements for services, supplies or materials which may affect title to or use of the Subject Property after the Closing; (iii) no adverse or other parties in possession of all or any portion of the Subject Property and no party other than Seller and City has any right thereto or to the use of the Subject Property; (iv) no encroachments of improvements from the Subject Property onto the Subject Property of others or by others onto the Subject Property and (v) no moratoriums, initiatives or legislation affecting the Subject Property (and Seller has not received any notice of any being contemplated).
12.1.11 Intentionally Deleted.
12.1.12 Intentionally Deleted.
12.1.13 Intentionally Deleted.
12.1.14 Agreements Affecting the Real Property . Except as shown in the Preliminary Title Report, there are no commitments to or agreements with any federal, state, or local governmental agencies, public utilities, predecessor owners, adjacent landowners or other parties affecting the Real Property, which would impose any improvement, financial or other, obligations on City.
12.1.15 Intentionally Deleted.
12.1.16 Intentionally Deleted.
12.1.17 Access. There are no facts or conditions which would prevent legal access to and from the Subject Prop erty on existing highways and roads subject to the Permitted Exceptions and the Survey.
12.1.18 Offsite Improvements . Except as otherwise set forth herein, there are no requirements imposed against the Subject Property imposing any obligations on the owner thereof to construct any offsite improvements as a condition to the development of the Subject Property or otherwise.
12.1.19 Foreign Person . Seller warrants that no individual or entity which, under the terms of this Agreem ent, will transfer United States Real Property Interests, as defined in Section 897(c) of the Internal Revenue Code, is a “foreign person” with the meaning of Section 1445(f) of the Internal Revenue Code. Seller agrees to execute and deliver through escrow, prior to the Closing, any affidavit required by City verifying the warranty specified in this paragraph.
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12.1.20 Intentionally Deleted.
12.1.21 Anti-Money Laundering . Seller is in compliance with the requirements of Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 23, 2001) (the “Order”) and other similar requirements contained in the rules and regulations of the Office of Foreign Assets Control, Department of the Treasury ( “OFAC”) and in any enabling legislation or other Executive Orders or regulations in respect t hereof (the Order and such other rules, regulations, legislation, or orders are collectively called the “Orders”).
12.1.22 Prohibited Transactions. Seller (a) is not listed on the “Specially Designated Nationals and Blocked Persons List ” maintained by OFAC pursua nt to the Order and/or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Orders (such lists are collectively referred to as the “Lists”); (b) is not a person who has been determined by competent authority to be subject to the prohibitions contained in the Orders; or (c) is not or has not engaged in any dealings or transactions with any entity prohibited by any Orders or Lists from engaging in such de aling or transaction, including any political units or subdivision of the entity (each a “Forbidden Entity”).
12.2 Representations and Warranties of City. City, to City’s actual knowledge without investigation, hereby makes the representations and warranties set forth in this Section for the benefit of Seller and its successors and assigns. City shall notify Seller in writing immediately if City becomes aware that any representation o r warranty has become unt rue or misleading in light of information obtained by City after the Effective Date. City’s actual knowledge shall mean the actual knowledge of Phillip B urum without investigation (and by making such representation Mr. Burum undertakes no personal liability).
12.2.1 Authority. City is a California municipal corporation and has all requisite power and authority to enter into this Agreement and to perform its obligations hereunder.
The execution and delivery of this Agreement by City has been duly authorized.
12.2.2 No Conflict. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereunder on the part of City do not and will not violate any applicable law, ordinance, statu te, rule, regulation, order, decree or judgme nt, conflict with or result in the breach of any terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge, or encumbrance u pon any of the property or assets of City by reason of the terms of any contract, mortgage, lien, lease, agreement, indenture, instrument or judgment to which City is a part or which is or purports to be binding upon City or which otherwise affects City, which will not be discharged, assumed or released at the Closing.
12.2.3 Litigation. There are no claims, actions, suits or proceeding continuing, pending or to City’s actual knowledge, threatened, which would materially adversely affect City or this transaction.
12.2.4 Effect of Representations and Warranties . Each representation and warranty in this Section 12.2: (1) is material and being relied upon by Seller; (2) is true in all respects as of the Effective Date; (3) must be true in all respects on the Closing Date; and (4) shall 142
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survive the termination of this Agreement and/or the Closing Date for a period of three (3) months and shall not be deemed to have merged into any of the documents executed or delivered at the Closing.
12.3 Survival of Representations . The express representations and warranties made in this Agreement shall survive the Closing for a period of six (6) months and shall not merge into any instrument or conveyance delivered at the Closing.
12.4 Remedies and Cure Rights. Seller shall give City immediate written notice of any representations or warranties of Seller that become untrue during the term of this Agreement. In the event that, prior to the Closing, City has actual knowledge of any breach by Seller of any representation or warranty unde r this Agreement (which representation Seller has not intentionally caused to become untrue and was true when made on the Effective Date), then (a) prior to the Closing, City may elect (as its sole right and remedy) not to consummate the Closing and, instead, elect to terminate this Agreement; and (b) if, notwithstanding City having actual knowledge of such breach prior to Closing, the Closing occurs then, after such Closing, City shall have no right or remedy against Seller on account of such breach. In the event that City elects to terminate this Agreement pursuant to the preceding sentence, City shall be required to first deliver a written notice to Seller which shall set forth the nature of the breach. Seller shall then have the right to elect, by delivery of written notice to City not later than three (3) business days following receipt of City’s termination notice, to extend the Closing for a period of thirty (30) days to enable Seller to cure said breach. In the event that Seller fails to timely sen d a cure notice or actually fails to timely cure such breach to City’s satisfaction, this Agreement shall be deemed terminated as of the expiration of the thirtieth (30th) day following City’s termination notice. Notwithstanding the foregoing or anything herein to the contrary, in the event that Seller causes a representation to become untrue and was true when made on the Effective Date or a Seller representation was untrue when made on the Effective Date, City shall have all rights and remedies available at law or in equity as a result of such breach.
13. As-Is Conveyance. CITY IS ACQUIRING THE SUBJECT PROPERTY “AS IS,” “WHERE IS,” “WITH ALL FAULTS,” AND WITHOUT ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, OF ANY KIND WHATSOEVER,
BY SELLER, ITS AGENTS, BROKERS, CONSULTANTS, COUNSEL, PARENTS, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, OR A NY OTHER PERSON.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER EXPRESSLY DISCLAIMS AND NEGATES, AS TO THE SUBJECT PROPERTY: (A) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY; (B) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS; AND (D) ANY IMPLIED OR EXPRESS WARRANTY WITH RESPECT TO (i) THE CONDITION OF THE SUBJECT PROPERTY, (ii) THE COMPLETENESS OR ACCURACY
OF ANY DOCUMENTS DELIVERED T O CITY BY SELLER, INCLUDING WITHOUT LIMITATION THE ACREAGE OF THE SUBJECT PROPERTY, OR (iii) THE SUBJECT PROPERTY’S COMPLIANCE WITH ANY ZONING OR OTHER APPLICABLE RULES,
REGULATIONS, LAWS OR STATUTES, OR THE USES PERMITTED ON, THE 143
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DEVELOPMENT REQUIREMENTS FOR, OR ANY OTHER MATTER OR THING RELATING TO THE SUBJECT PROPERTY OR ANY PORTION THEREOF.
Initials:
Seller City
Buyer acknowledges that, to the extent required to be operative, the disclaimers of warranties contained in this Section 13 are “conspicuous” disclaimers for purposes of any applicable law, rule, regulation or order. This Section 13 shall survive the termination of this Agreement and/or the Closing Date and shall not be deemed to have merged into any of the documents executed or delivered at the Closing.
14. Release. Without limiting the foregoing, as a continuing obligation surviving the Closing and the conveyance of the Subject Property by Grant Deed, and except for any representations, warranties or covenants made by Seller hereunder, City shall, from and after the Closing, release Seller and Seller’s “Releasees” (as hereinafter defined) from any and all claims, actions, losses, liabilities, damages, demands, costs and expenses of every nature and character, including, without limitation, actual attorneys’ fees, charges and costs, and any other liability whatsoever, whether known or unknown, foreseen or unforeseen (collectively, for purposes of this Section 14, “Costs”), that arise in whole or in part out of or in connection with, or that relate to (a) the physical, environmental and legal condition of the Subject Property or any portion thereof, or (b) any breach or default by City of the restrictions contained in the Grant Deed, excluding, however, any Costs to the extent arising out of or in connection with, or that relate to a breach by Seller of its representations, warranties and covenants in this Agreement, Seller’s willful misconduct or fraud, and any post -Closing adjustments to prorations. In no event shall City’s release of Seller as provided above create any obliga tion of City to indemnify Seller, except as otherwise expressly stated herein. As used herein, Seller’s “Releasees” shall be Seller and the successors and assigns of Seller, the officers, directors, agents, employees, attorneys and shareholders of Seller, and the parents, subsidiaries and affiliated companies of Seller and its successors and assigns, and their respective officers, directors, agents, employees, attorneys, shareholders, subsidiary and affiliated companies, and each of them. Without limiting the foregoing, from and after the execution of this Agreement, the provisions of this Section 14 shall continue to be effective with respect to each Releasee irrespective of whether thereafter such Releasee assigns or has purported to assign or otherwise dispose of its interest or any portion of its interest, under this Agreement, or in the Subject Property. This Section 14 shall survive the Closing.
Effective as of the Closing Date, City, on behalf of itself and its affiliated successors and assigns, hereby accepts the above-mentioned risks and agrees that the aforesaid release shall apply to all unknown or unanticipated results of the transactions and occurrences described above, as well as those known and anticipated, and upon advice of legal counsel, City, on behalf of itself and its affiliated successors and assigns, hereby waives any and all rights under California Civil Code §1542, which Section has been duly explained to City by its counsel, and which reads as follows:
“A GENERAL RELEASE DOES NOT EX TEND TO CLAIMS WHICH THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST 144
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IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND
THAT IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
____________ ____________
Seller’s initials City’s initials
Without limiting the generality of the foregoing, Seller shall have no liability to City with respect to the physical, environmental and legal condition of the Subject Property under common law, or any federal, state or local law or regulation, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 as amended, and the California Health and Safety Code. City hereby releases and waives any and all claims that City has or may have against Seller under any of the foregoing laws.
15. Further Assurances. Seller will, whenever and as often as it shall be requested by City, and City will, whenever and as often as it shall be requested by Seller, execute, acknowledge and deliver, or cause to be executed, acknowledged or delivered, any and all such further conveyances, assignments, confirmations, satisfactions, releases, instruments of further assurance, approvals, consents, and any and all such further instruments and documents as may be reasonably necessary, expedient or proper in order to complete any and all conveyances, transfers, sales and assignments herein provided, and to do any and all other acts and to execute, acknowledge and deliver any and all documents as so reasonably requested in order to carry out the intent and purpose of this Agreement, including without limitation, execution of any easement agreements with adjacent real property owners reasonably necessary for the development of the Subject Property.
16. Default, Remedies, Defense of Agreement.
16.1 City Default. In the event of a default by City under this Agreement, Seller shall have the right to terminate this Agreement . In the event Seller elects to terminate its obligation to convey the Subject Property in accordance with this Section, City’s obligation to acquire, and Seller’s obligation to convey, the Subject Property shall terminate, and neither Party shall have any further rights or obligations to the other except as otherwise provided in this Agreement.
16.2 Seller Default. In the event of a default by Seller under this Agreement, City shall have the right to specific performance; provided, however, that City files an action in the appropriate court for specific performance within thirty (30) days’ notice of Seller default and City waives all other legal and equitable remedies against Seller.
16.3 Notice and Cure. Notwithstanding anything contained in this Agreement to the contrary, if a party is in breach under this Agreement ( “Defaulting Party”) the other Party shall have no right to terminate this Agreement or pursue any other remedy for such default unless such default remains uncured by 5:00 p.m. California time on the date that is three (3) business days after the Defaulting Party ’s receipt of written notice of such breach or default from such other Party. This provision shall not apply to breaches of representations and warranties by Seller to the extent encompassed by Section 12.4 herein.
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17. Miscellaneous Provisions.
17.1 Governing Law and Venue . This Agreement shall be construed and enforced in accordance with the laws of the State of California. If any legal action is necessary to enforce the terms and conditions of this Agreement, the Parties agree that a court of competent jurisdiction in San Bernardino County shall be the sole venue and jurisdiction for the bringing of such action.
17.2 Assignments. Seller may not assign this Agreement or any of its rights or obligations hereunder (including, without limitation, its rights and duties of performance) to any third party or entity without the prior written consent of City. This Agreement will be binding upon and inure to the benefit of each of the Parties hereto and, except as otherwise provided herein, their respective legal successors and permitted assigns.
17.3 Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
17.4 Exhibits and Recitals . The Recitals and Exhibits to this Agreement are incorporated by this reference as though fully set forth herein.
17.5 No Waiver. The waiver by one Party of the performance of any covenant, condition or promise shall not invalidate this Agreement nor shall it be considered a waiver by such Party of any other covenant, condition or promise hereunder. The waiver by either or both Parties of the time for performing any act shall not constitute a waiver of the time for performing any other act or identical act required to be performed at a later time. The exercise of any remedy provided by law and the provisions of this Agreement for any remedy shall not exclude other consistent remedies unless they are expressly excluded.
17.6 Construction. As used in this Agreement, the masculine, feminine or neuter gender and the singular or plural numbers shall each be deemed to include the other whenever the context indicates. This Agreement shall be construed as a whole and in accordance with its fair meaning, the captions being for convenience only and not intended to fully describe or define the provisions in the portions of the Agreement to which they pertain. Each Party hereto, and counsel for each Party hereto, has reviewed and revised this Agreement, and the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting Party shall not be employed in the interpretation or construction of this Agreement. This document shall, in all respects, be governed by the laws of the State of California applicable to agreements executed and to be wholly performed within the State of California. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the Parties have no legal right to contract, the latter shall prevail but the provision of this document that is affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. 146
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17.7 Merger/Integration. The Parties intend this Section to be a conclusive recital of fact pursuant to Section 622 of the California Evidence Code. This Agreement and the Exhibits attached hereto supersede any prior agreement, oral or written, and contain the entire agreement between the Parties on the subject matter hereof. This Agreement (including the Exhibits attached hereto) is intended to be a final expression of the agreement of the Parties and is an integrated agreemen t within the meaning of Section 1856 of the California Code of Civil Procedure. No subsequent agreement, representation or promise made by either Party hereto, or by or to any employee, officer, agent or representative of either Party shall be of any effect unless it is in writing and executed by the Party to be bound thereby. There are no contemporaneous separate written or oral agreements between the Parties in any way related to the subject matter of this Agreement.
17.8 Counterparts. This Agreement and any modifications, amendments or supplements thereto may be executed in several counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the origin al or the same counterpart. The parties may also deliver executed copies of this Agreement to each other by facsimile or electronic mail, which facsimile or electronic mail signatures shall be binding. Any facsimile or electronic mail delivery of signatu res shall be followed by the delivery of executed originals.
17.9 Amendments. This Agreement may only be amended by mutual written agreement signed by the Parties. The City Manager shall have the authority to agree to and execute any amendment which the City Manager determines will not result in a substantial change to the terms and conditions of this Agreement, including but not limited to approving extensions of the Closing.
17.10 Survival. All covenants, agreements, representations and warranties made herein shall survive the execution and delivery of this Agreement, the Closing, the recording of the Grant Deed conveying the Subject Property to City and all deliveries contemplated herein.
17.11 Computation of Periods. All periods of time referred to in this Agreement shall include all Saturdays, Sundays and State and National holidays, unless the period of time specifies “business days”, in which case such period of time shall exclude Saturdays, Sundays and State and National holidays; provided that if the date or last date to perform any act or give any notice with respect to this Agreement shall fall on a Saturday, Sunday or on any State and National holiday, such act or notice may be timely performed or given on the next succeeding day that is not a Saturday, Sunday or State and National holiday. For purposes of this Agreement, the phrase “State and National holiday” shall refer to any day in which the Escrow Holder, Title Company and/or the Office of the County Recorder for the County of San Bernardino is/are closed for business.
17.12 Exclusive Agreement . This Agreement is an exclusive arrangement between the Parties and , after execution, neither Seller nor its agents, affiliates, or employees shall negotiate or otherwise deal in the sale or conveyance of the Subject Property with anyone other than City until this Agreement is terminated in accordance with its terms. 147
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17.13 INDEPENDENT COUNSEL. EACH PARTY TO THIS AGREEMENT
ADMITS, ACKNOWLEDGES AND REPRESENTS THAT IT HAS HAD THE
OPPORTUNITY TO CONSULT WITH AND BE REPRESENTED BY INDEPENDENT COUNSEL OF SUCH PARTIES ’ CHOICE IN CONNECTION WITH THE NEGOTIATION, EXECUTION AND AMENDME NT OF THIS AGREEMENT. EACH PARTY FURTHER
ADMITS, ACKNOWLEDGES AND REPRESENTS THAT IT HAS NOT RELIED ON ANY
REPRESENTATION OR STATEMENT MADE BY ANY OF THE ATTORNEYS AND
REPRESENTATIVES OF THE OTHER PARTY WITH REGARD TO THE SUBJECT MATTER, BASIS, OR EFFECT OF THIS AGREEMENT.
17.14 No Obligation to Third Parties . The execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor obligate either of the Parties hereto, to any person or entity other than each other.
17.15 Legal Fees. If either City or Seller brings any action, arbitration or suit against the other for any matter relating to or arising out of this Agreement, then the prevailing party in such action or dispute, whether by final judgment or settlement, shall be entitled to recover from the other party all costs and expenses of suit, including actual attorneys ’ fees and expert witness fees, provided, however, that the attorneys’ fees awarded pursuant to this Section shall not exceed the hourly rate paid by City for legal services mu ltiplied by the reasonable number of hours spent by the prevailing Party in the conduct of the litigation. Any judgment or order entered in any final judgment shall contain a specific provision providing for the recovery of all costs and expenses of suit, including actual attorneys’ fees incurred in enforcing, perfecting and executing such judgment.
17.16 Brokers. City and Seller each represent and warrant that no broker, salesman or finder has been engaged by it in connection with any of the transactions contemplated by this Agreement or, to its knowledge, is in any way connected with any of such transactions.
In the event of any other claim for broker ’s, consultant ’s or finder ’s fees or commissions in connection with the negotiation, executi on or consummation of this Agreement, then City shall indemnify, save harmless and defend Seller from and against such claim if it shall be based upon any statement, representation or agreement made by City; and Seller shall indemnify, save harmless and de fend City from and against such claim if it shall be based upon any statement, representation or agreement made by Seller.
17.17 Notices. All notices, demands, requests , instructions or other documents (each of which is herein called a “Notice”) under this Agreement by either Party shall be (i) hand delivered, (ii) sent by United States first class mail, certified or express, postage prepaid and return receipt requested, (iii) sent by a nationally recognized overnight courier services such as Federal Express or U.P.S., (iv) sent by facsimile transmission or electronic mail, provided if delivered by facsimile or electronic mail, then the same shall be followed the same day by delivery through one of the methods set forth in (i), (ii) or (ii) above, in each case ad dressed to the Parties as follows:
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If to Seller, to:
Calmat Co.
c/o Vulcan Materials Company, West Region
Attention: Legal Department
500 N. Brand Boulevard, Suite 500
Glendale, CA 91203
Facsimile: (602) 253-1026
E-Mail: [email protected]
With a copy to:
Mack A. Anderson, Esq.
FENNEMORE LLP
550 E. Hospitality Lane, Suite 350
San Bernardino, CA 92408
Telephone: (909) 890-4499
E-Mail: [email protected]
If to City, to: City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Attention: City Manager
Telephone: (909) 350-7653
E-Mail: [email protected]
With a copy to: Rutan & Tucker, LLP
18575 Jamboree Road, 9th Floor
Irvine, California 92612
Attention: Jennifer Farrell.
Telephone No.: (714) 338-1884
Facsimile: (714) 546-9035
E-Mail: [email protected]
If to Escrow
Holder:
Chicago Title Insurance Company
725 South Figueroa Street, Suite 200
Los Angeles, CA 90017
Attention: Terri Gervasi
Telephone: (213) 488-4379
E-Mail: [email protected]
Notices, demands, and request served in the above manner shall be considered sufficiently given or served for all purposes under this Agreement at the time of actual delivery to the address es shown above during normal business hours, or otherwise the next business day. The addresses and addressees, for the purpose of this Section, may be changed by giving written notice of such change in the manner herein provided for giving notice. Unless and until such written Notice of change is received, the last address and addressee stated by written Notice, or provided herein if no such written Notice of change has been received, shall be deemed to continue in effect for all purposes hereunder. City and Seller hereby agree that notices may be given hereunder by the Parties’ respective counsel and that, if any communication is to be given hereunder by City’s or Seller’s 149
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counsel, such counsel may communicate directly with all principals as required to comply with the provisions of this Section.
17.18 Incorporation by Reference. The Recitals in this Agreement are material and are incorporated by reference as though fully set forth herein.
17.19 Exhibits. On approval of the L ot Line Adjustment creating t he Subject Property as a separate legal parcel , City and Seller shall augment Exhibit B by initialing and attaching the approved legal description of the Subject Property to this Agreement.
[Signature page follows.]
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IN WITNESS WHEREOF, Seller and City have executed this Agreement as of the Effective Date.
SELLER:
CALMAT CO., a Delaware corporation
By:
Name:
Title:
CITY:
CITY OF FONTANA,
a California municipal corporation
By:
Name: Matt Ballantyne, City Manager
ATTEST:
_______________________________
Germaine McClellan Key, City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
_________________________________
Jennifer Farrell, Assistant City Attorney
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CONSENT OF ESCROW HOLDER
The undersigned Escrow Holder hereby agrees to (i) accept the foregoing Agreement, (ii) be Escrow Holder under said Agreement, (iii) to make all filings required under Section 6045 of the Internal Revenue Code of 1986, as amended, and (iv) be bound by said Agreement in the performance of its dutie s as Escrow Holder; provided, however, the undersigned shall have no obligations, liability or responsibility under (a) this consent or otherwise, unless and until said Agreement, fully signed by the Parties, has been delivered to the undersigned, or (b) a ny amendment to said Agreement unless and until the same is delivered to the undersigned.
Date of Opening of Escrow: ___________
CHICAGO TITLE INSURANCE COMPANY,
a California corporation
By:
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EXHIBIT “A”
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EXHIBIT “A”
LEGAL DESCRIPTION OF LAND
That certain real property located in the City of Fontana, County of San Bernardino, State of California, and more particularly depicted and described as follows:
Parcel 1
LOT 226, ETIWANDA VINEYARDS, AS PER PLAT RECORDED IN BOOK 17 OF MAPS, PAGES 29 AND 30, RECORDS OF SAID COUNTY.
EXCEPTING THEREFROM THE SOUTH 50 FEET.
THE AREAS AND DISTANCES OF THE ABOVE DESCRIBED PROPERTY ARE
COMPUTED TO THE CENTERS OF THE ADJOINING STREETS S HOWN ON SAID MAP, AND TO THE SOUTHERLY LINE OF ARROWHEAD AVE. AS SHOWN ON SAID MAP.
Parcel 2
THE WEST 264 FEET OF THE EAST 396 FEET OF LOT 195, ETIWANDA VINEYARDS,
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 17 OF MAPS, PAGES 29 AND 30, RECORDS OF SAID COUNTY.
THE AREAS AND DISTANCES OF THE ABOVE DESCRIBED PROPERTY ARE COMPUTED TO THE CENTERS OF THE ADJOINING STREETS SHOWN ON SAID MAP.
Parcel 3
LOTS 207, 210, AND 223 OF ETIWANDA VINEYARDS TRACT, AS PER PLAT RECORDED IN BOOK 17 OF MAPS, PAGES 29 AND 30, RECORDS OF SAID COUNTY.
THE AREAS AND DISTANCES OF THE ABOVE DESCRIBED PROPERTY ARE COMPUTED TO THE CENTERS OF THE ADJOINING STREETS SHOWN ON SAID MAP.
Parcel 4
LOT 194, ETIWANDA VINEYARDS TRACT, AS PER P LAT RECORDED IN BOOK 17 OF MAPS, PAGES 29 AND 30, RECORDS OF SAID COUNTY.
THE AREAS AND DISTANCES OF THE ABOVE DESCRIBED PROPERTY ARE COMPUTED TO THE CENTERS OF THE ADJOINING STREETS SHOWN ON SAID MAP.
Parcel 6
THE EAST 132 FEET OF LOT 195, ETIWANDA VINEYARD TRACT, AS PER PLAT RECORDED IN BOOK 17 OF MAPS, PAGES 29 AND 30, RECORDS OF SAID COUNTY. 153
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THE AREAS AND DISTANCES OF THE ABOVE DESCRIBED PROPERTY ARE COMPUTED TO THE CENTERS OF THE ADJOINING STREETS SHOWN ON SAID MAP.
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023217113
023217112
023217109
023217114
023217108
023217105
0 2
3 2
1 7
1 0
6 0
2 3
2 1
7 1
0 7
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EXHIBIT “B”
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EXHIBIT “B”
DEPICTION AND LEGAL DESCRIPTION OF SUBJECT PROPERTY
That certain real property located in the City of Fontana, County of San Bernardino, State of California, and more particularly depicted and described as follows:
156
A portion of 023217108
approximately 3.6 acres
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EXHIBIT “C”
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EXHIBIT “C”
GRANT DEED
(see attached)
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EXHIBIT “C”
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Attention: City Manager
(Space Above Line For Recorder’s Use Only)
[Exempt from Recorder’s fee pursuant to Government Code section 27383] [Exempt from Documentary Transfer Tax pursuant to Revenue and Taxation Code section 11922]
GRANT DEED
FOR VALUE RECEIVED, CALMAT CO., a Delaware corporation (“Grantor”) hereby grants to CITY OF FONTANA , a California municip al corporation ( “Grantee”) all that certain real property situated in the County of San Bernardino, State of California, described on Exhibit “1” attached hereto (“Property”), together with (a) all improvements , if any, owned by Grantor and located on the Property and all fixtures contained in any such improvements, and (b) any and all easements, rights -of-way, privileges, rights and appurtenances benefiting, appertaining or belonging to the Property, including, without limitation, any and all streets and roads (whether opened or proposed) abutting the Property, riparian rights, and/or oil, gas or other minerals laying under the Property.
[Signature page follows.]
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EXHIBIT “C”
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IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of [INSERT DATE].
GRANTOR:
CALMAT CO., a Delaware corporation
By:
Name:
Title:
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EXHIBIT “C”
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CERTIFICATE OF ACCEPTANCE
(GOVERNMENT CODE SECTION 27281)
This is to certify that the interest in real property and other interests conveyed by the instrument dated [INSERT DATE], from CALMAT CO., a Delaware corporation (“Grantor”), to the City of Fontana, a California municipal corporation (“Grantee”), is hereby accepted by the undersigned officer and agent of Grantee and Grantee consents to the recording of the Grant Deed.
City of Fontana, a California
municipal corporation
By: ____________________________
Dated: __________________________ Matt Ballantyne, City Manager
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EXHIBIT “C”
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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of San Bernardino )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of San Bernardino )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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EXHIBIT “C”
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EXHIBIT “1” TO GRANT DEED
DESCRIPTION OF PROPERTY
That certain real property located in the City of Fontana, County of San Bernardino, State of California, and more particularly described as follows:
[INSERT LEGAL DESCRIPTION OF PROPERTY]
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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1993 Agenda Date: 2/14/2023
Agenda #: H. Category: Consent Calendar
FROM:
Development Services
SUBJECT:
Agreement for Exchange of Real Property and Joint Escrow Instructions - NH Southridge LLC ; and make findings of exemption under the California Environmental Quality Act (CEQA).
RECOMMENDATION:
1. Approve an Agreement for Exchange of Real Property and Joint Escrow Instructions with NH Southridge LLC for Assessor Parcel Number 0237-411-13 and find the approval is not a “project”requiring review under CEQA, or, in the alternative, is subject to the common-sense exemption from CEQA.
2. Authorize the City Manager to execute any documents necessary or appropriate to execute the Agreement for Exchange of Real Property and Joint Escrow Instructions; and,
3. Determine that the City Council’s actions are exempt from CEQA COUNCIL GOALS:
· Promote economic development by establishing a quick, consistent development process. · Provide a diverse range of housing types and levels of affordability in the community by promoting diverse range of housing projects and levels of affordability.
DISCUSSION:
Background
The City of Fontana (“City”)currently owns real property located in the City of Fontana ("City"), San Bernardino County ("County"), State of California, known as County of San Bernardino Assessor Parcel Number 0237-411-13 (“CityProperty.”)The Property consists of approximately 9.96 acres of vacant land. NH Southridge, LLC (“Southridge”)is a subsidiary of NewBridge Homes. Southridge has made an offer to acquire the City Property, which is currently vacant and undeveloped, in order to facilitate Southridge’s development of a proposed project on the City Property and adjacent property currently owned by Southridge (the “Southridge Project”).
Analysis
The Development Services Division and Southridge have negotiated an Agreement for Exchange of Real Property and Joint Escrow Instructions (“ExchangeAgreement”)to related to the disposition of APN 0237-411-14. To that end, the proposed deal-points included within the Exchange Agreement include:
1. Southridge would exchange approximately 10.3 acres of property (“Exchange Property”) for City of Fontana Printed on 2/10/2023Page 1 of 3
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1. Southridge would exchange approximately 10.3 acres of property (“Exchange Property”) for the City Property, which would create circulation, connectively, and access to the Reserve to and from the City Property.
2. Southridge would pay the City $1,000,000.
3. Southridge would construct an approximately 1.6-acre public park at the corner of Live Oak Avenue and Village Drive, at an estimated cost of $950,000. As currently envisioned, this proposed park would have a new parking lot, passive play area, pickleball courts, trailhead entrances, and related improvements. All expenses related to the proposed park would be paid by NH Southridge LLC, not the City.
4. Southridge would also remove boulders and rocks hanging from the face of the old granite quarry and install a rockfall protection barrier on nearby City-owned property to increase the safety of that property. This work is estimated to cost $1,700,000.
5. The transaction would be contingent upon, among other things, the City’s approval of various entitlements and development approvals to be processed for the Southridge Project, after compliance with the California Environmental Quality Act (“CEQA”).
Environmental Review
Public agencies are permitted to enter into preliminary agreements regarding the disposition and/or development of property prior to CEQA compliance, so long as such agreements are conditioned on future CEQA compliance in such a way that the agency has not committed itself to a definite course of action regarding a project. (See, e.g., Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150; Delaware Tetra Technologies, Inc. v. County of San Bernardino (2016) 247 Cal.App.4th 352; Bridges v. Mt. San Jacinto Community College Dist. (2017) 14 Cal.App.5th 104.) As noted above, the transaction contemplated by the Exchange Agreement is expressly contingent up on the City’sapproval of entitlements necessary for the Southridge Project, after compliance with CEQA. The proposed Exchange Agreement reserves the City’s absolute discretion to impose mitigation measures, consider alternative uses, require modifications to the proposed Project, and/or to disapprove any proposed use. Accordingly, the City’sapproval of the Exchange Agreement would not commit the City to any definite course of action and does not constitute approval of any “project” for purposes of CEQA. Given this, and per CEQA Guidelines section 15378, the approval of the Exchange Agreement is a not subject to CEQA review. Alternately, the approval of the Exchange Agreement is not subject to further CEQA review as “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” (CEQA Guidelines §15061(b)(3).)
FISCAL IMPACT:
The exchange will generate $1,000,000 in revenue to the City.
MOTION:
Approve staff recommendation.
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AGREEMENT FOR EXCHANGE OF REAL PROPERTY
AND JOINT ESCROW INSTRUCTIONS
This AGREEMENT FOR EXCHANGE OF REAL PROPERTY AND JOINT ESCROW INSTRUCTIONS (“ Agreement”) is entered into as of February ___, 2023 (the “Effective Date”), by and between NH SOUTHRIDGE LLC , a California limited liability company (" NH Southridge"), and CITY OF FONTANA, a California municipal corporation (" City"). NH Southridge and CITY are referred to herein individually as a “ Party” and collectively as the “Parties.”
R E C I T A L S
A. NH So uthridge holds: (i) fee interest in that certain real property consisting of approximately 4.83 acres in the City of Fontana, California, as depicted in Exhibit “A-1” attached hereto (the “NH Southridge Property”) being a portion of a larger parcel owned b y NH Southridge [ APN: 0237 -411-14], the rest of which is not subject to this Agreement ; and (ii) contractual right to acquire that certain real property consisting of approximately 5.46 acres in the City of Fontana, California , as depicted in Exhibit “A-2” attached hereto (the “ Conifer Property”), from the current fee owner thereof (“ Conifer”), pursuant to a purchase agreement between NH Southridge and Conifer (the “ Conifer Purchase Agreement ”). The Conifer Property is part of a larger parcel [APN: 0237-411-27], the rest of which is not subject to this Agreement. The NH Southridge Property and the Conifer Property create contiguous property which expands and allows circulation and access to the City’s current open space recreational parcels.
B. City is the ow ner of that certain real property located to the southeast of the NH Southridge Property and consisting of approximately 9.96 acres [APN: 0237-411-13], in the City of Fontana, California, as more particularly described in Exhibit “B” attached hereto (the “ City Property”).
C. Subject to each of the NH Southridge Property and Conifer Property becoming legal parcels as set forth in this Agreement, NH Southridge desires to convey the NH Southridge Property and Conifer Property to City and City desires to convey th e City Property to NH Southridge.
D. The Parties desire to enter into this Agreement to establish the terms, covenants and conditions upon which they will carry out the foregoing intentions.
A G R E E M E N T
NOW, THEREFORE, based upon the foregoing Recitals, which are incorporated herein by this reference, and for good and valuable consideration, the re ceipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
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1. EXCHANGE OF PARCELS.
1.1 Exchange. Subject to all of the terms, conditions, and provisions of this Agreement, NH Southridge agrees to transfer and convey the NH Southridge Property and the Conifer Property to City, free and clear of all encumbrances, in exchange for the City Property, and City agrees to transfer and convey the City Property to NH Southridge, free and clear of all encumbrances, in exchange for the NH Southridge Property and Conifer Property , to occur in a concurrent exchange through Escrow (as hereinafter defined) . The City Property, NH Southridge Property, and Conifer Property shall each be referred to hereinafter in this Agreement individually as a “Parcel” and collectively as the “Parcels.”
1.2 Additional Consideration. Although, NH Southridge and City agree that the NH Southridge Property and the Conifer Property, collectively, are of approximately equal size and value to the City Property , upon the Close of Escrow, NH Southridge shall also : (i) pay to the City the sum of One Million Dollars ( $1,000,000) which shall be paid through Escrow (the “Additional Consideration”; and (ii) complete the Trailhead Park as set forth in Section 8 below which shall occur post-Closing, as further required by the “Approvals” (as defined in Section 4.2 below). City and NH Southridge confirm and agree that NH Southridge has already p aid to the City Seventy -Five Thousand Dollar s ($75,000) which shall be deemed a portion of the Additional Consideration.
2. LOT LINE ADJUSTMENT AND PROJECT APPROVALS.
2.1 Subdivision. The Parties acknowledge that the NH Southridge Property and Conifer Property are not currently separate legal lots under the California Subdivision Map Act.
Accordingly, the NH Southridge Property and the Conifer Property will be subdivided as follows prior to the Closing:
2.1.1 NH Southridge Property: Subdivided by Parcel Map (“Parcel Map”)
2.1.2 Conifer Property: Subdivided by Certificate of Compliance by City (“Certificate of Compliance”)
3. INSPECTIONS AND REVIEW.
3.1 Parcel Documents ; Party’s Investigations . In addition to any documents previously delivered by the Parties, each Party shall deliver to the other, within five (5) days after the date of this Agreement , copies of all written materials in its possession relating to the physical condition of the Parcel it is conveying (collectively, the “Due Diligence Items”). Until 5:00 p.m. Pacific time on the date that is thirty (30) days following the Effective Date (the “Due Diligence Period”), each Party shall have the right to examine, inspect and investigate the Parcel it is acquiring and the Due Diligence Items and to determine, in its sole and absolute discretion , whether the Parcel it is acquiring is acceptable in all respects. Each Party shall permit the other, its engineers, analysts, contractors and agents to conduct physical inspections of the respective Parcels. Such investigations may be made by the Parties and/or their agents during any normal business hours upon no less than twenty-four (24) hours’ notice . The Parties will keep the Parcels free and clear of mechanic’s or materialman’s liens arising out of such entry , shall repair 169
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any and all damage caused by suc h inspections or investigations, and shall indemnify the other Party from and against any liability arising from its physical inspection hereunder.
3.2 Termination Right. If a Party is not satisfied with any of the foregoing matters, that Party may terminate this Agreement for any reason or no reason by giving writt en notice of termination to other Party and Escrow Holder prior to the expiration of the Due Diligence Period (a “Due Diligence Termination Notice”). Alternatively, such Party may elect to unconditionally waive all due diligence contingencies and continue under this Agreement by giving written notice of acceptance to the other Party and Escrow Holder prior to the expiration of the Due Diligence Period (an “Approval Notice”). If both Parties timely deliver an Approval Notice, this Agreement shall continue in full force and effect, and the Parties shall be deemed to have waived their rights to terminate this Agree ment pursuant to this Section . If either Party fails t o timely deliver a Due Diligence Termination Notice, this Agreement shall continue in full force and effect, and the Parties shall be deemed to have waived their rights to terminate this Agree ment pursuant to this Section . If a Party timely elects to term inate this Agr eement pursuant to this Section, the Parties shall have no further obligations hereunder except for obligations that expressly survive the termination hereof.
3.3 Review of Title. No later than fifteen (15 ) days after the Effective Date , Fidelity National Title Company at 1300 Dove Street, Suite 310, Newport Beach, CA 92660 (the “Title Company”) shall prepare, issue and deliver to the Parties the following : (a) a preliminary title report and underlying title documents for the NH Southridge Property (the “ NH Southridge Property Title Report ”); (b) a preliminary title rep ort and underlying title documents for the Conifer Property (the “ Conifer Property Title Report ”) and ( c) a preliminary title report and underlying title documents for the City Property (the “ City Property Title Report ”). The NH Southridge Property Title Report, the Conifer Property Title Report , and the City Property Title Report are individually referred to herein as a “Title Report.” Each Party shall review title to the Parcel it is acquiring as disclosed by the applicable Title Report . On or before the date that is five (5) days prior to the expiration of the Due Diligence Period (the “Title Review Period ”), each Party shall notify the other Party in writing (a “Title Objection Notice”) of any objections such Party may have to title exceptions or other matters contained in the applicable Title Report (“Title Objections”). Notwithstanding anything to the contrary contained in this Agreement, the Parties hereby disapprove all d eeds of trust, delinquent taxes and assessments and other monetary liens affecting the Parcel such Party is acquiring (other than liens for non -delinquent property and assessments as described above) and each Party agrees to remove such items as of the Close of Escrow in order to convey its Parcel free and clear of such monetary encumbrances .
If a Party does not give such notice by the expiration of the Title Review Period, such failure shall conclusively be deemed to be such Party’s approval of those matt ers. If a Party timely provides a Title Objection Notice , the other Party shall have two (2) business days after receipt thereof to deliver a response indicating whether it will cause any Title Objections to be removed.
A failure to respond shall be deem ed an election by such Party not to remove such Title Objections. Each Party shall then have until the expiration of the Due Diligence Period to satisfy itself with the state of title for the Parcel it is acquiring. A Party’s delivery of an Approval Notice prior to the expiration of the Due Diligence Period shall be deemed such Party’s waiver of any Title Objections, other than those Title Objections that the other Party has agreed to cure .
If either Party receives any supplement to the Title Report for the Parcel it is acquiring disclosing 170
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any new m aterially adverse title matters , the foregoing right of review and approval shall also apply to said new matter.
4. ESCROW.
4.1 Opening of Escrow. The Closing shall take place through an escrow (“ Escrow”) to be es tablished with Fidelity National Title Company (“ Escrow Holder ”). Escrow shall be opened by delivering to Escrow Holder a fully executed copy of this Agreement. Upon receipt of a fully executed copy of this Agreement, Escrow Holder shall execute the Escr ow Holder’s acceptance attached hereto and notify NH Southridge and City of the escrow number it assigns to the Escrow.
4.2 Close of Escrow; Closing Date. The Close of Escrow shall occur on the date that is thirty (30) days after the last of the following t o occur: (i) Approval and recording of the Parcel Map; (ii) Approval and recording of the Certificate of Compliance; (iii) Approval of all entitlements and discretionary approvals required for the “Project” (as defined below) , after compliance with the Cal ifornia Environmental Quality Act (“ CEQA”); and ( iv) eighteen (18) months following the Effective Date (the “Closing Date”). As used herein, the terms “Close of Escrow” and/or the “Closing” shall mean the consummation of the transactions contemplated by this Agreement to occur through the Escrow including NH Southridge’s conveyance of the NH Southridge Property and the Conifer Property to City and City’s conveyance of the City Property to NH Southridge . As used herein, the term “ Approval” means, with resp ect to the various entitlements and development approvals to be processed for the Project that the respective development approval has been: (a) formally approved by the City and all other applicable agencies in a form and content and subject to conditions of approval acceptable to NH Southridge in its sole and absolute discretion; and (b) any statutorily provided time periods to appeal, challenge, object and/or protest the approval of the development approval have expired without an appeal, challenge, obje ction or protest being taken. If any appeal is taken or any challenge, objection or protest to the development approval is made, the body ruling on the appeal, challenge, objection or protest shall have made a formal, final finding unconditionally upholding approval of the development approval in a form and content and subject to conditions of approval acceptable to NH Southridge in its reasonable discretion and all further appeal, challenge, protest, or objection periods have expired without further appeal, challenge, protest, or objection being taken. Notwithstanding anything to the contrary contained herein, in the event the Close of Escrow has not occurred on or before twenty-six (26) months following the Due Diligence Termination Date , either Party shall have the right to terminate this Agreement, in which event the Parties shall have no further obligations hereunder except for obligations that expressly survive the termi nation hereof. As used in this Agreement, the term “Project” shall mean a future development project proposed to be developed by NH Southridge on the City Property and certain adjacent real property, including the development of the Trailhead Park and conveyance of property to the City contemplated herein . Notwithstanding anything in t his Agreement, including, without limitation, anything in this Section 4.2 , this Agreement shall not commit the City to approve any entitlement or other development approval necessary for the Project. In considering any entitlements processed in connectio n with the Project, the City shall retain the absolute discretion to impose mitigation measures, consider alternative uses, require modifications to the proposed Project, and/or to disapprove the Project or any proposed use. The transactions contemplated by this Agreement are thus conditioned on the City’s determination to 171
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approve the necessary entitlements for the Project after compliance with CEQA and in consideration of the results of the environmental review process required by CEQA.
4.3 Escrow Instructions. This Agreement, together with any standard instructions of Escrow Holder, shall constitute the joint escrow instructions of NH Southridge and City to Escrow Holder as well as an agreement between NH Southridge and City. In the event of any conflict be tween the provisions of this Agreement and Escrow Holder’s standard instructions, this Agreement shall prevail.
4.4 Deliveries by NH Southridge. No later than one (1) business day preceding the Closing Date, NH Southridge shall deliver the following to Escrow Holder:
4.4.1 The Additional Consideration in good and immediately available funds.
4.4.2 One (1) executed and acknowledged original of each grant deed to transfer title of the Conifer Property and the NH Southridge Property in a form reasonably acceptable to City (collectively, the “NH Transfer Deeds”).
4.4.3 Two (2) original counterparts to the General Assignment in the form attached as Exhibit “D” pertaining to the NH Southridge Property (the “NH Southridge Property General Assignment”).
4.4.4 An original Non -Foreign Affidavit and California Form 593 -C, executed by NH Southridge.
4.4.5 All other sums and documents reasonably required by Escrow Holder to carry out and close the Escrow pursuant to this Agreement.
4.5 Deliveries by City. No later than one (1) business day preceding the Closing Date, City shall deliver the following to Escrow Holder:
4.5.1 One (1) fully -executed and acknowledged grant deed conveying the City Property to NH Southridge in substantially the same form attached hereto as Exhibit “ E” (the “City Property Grant Deed”).
4.5.2 Two (2) original counterparts to the General Assignment in the form attached as Exhibit “D” pertaining to the City Property (the “ City Property General Assignment”).
4.5.3 An original Non -Foreign Affidavit and California Form 593 -C, executed by City.
4.5.4 All other sums and documents reasonably required by Escrow Holder to carry out and close the Escrow pursuant to this Agreement.
4.6 Closing, Recording and Disbursements . On or before the Closing Date (except as otherwise provided below), and when all of the conditi ons precedent to the Close of Escrow 172
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set forth in Section 5 of this Agreement have been satisfied or waived in writing, Escrow Holder shall take the actions set forth in this Section.
(a) Recording. Escrow Holder shall cause the recording of documents in the Official Records of San Bernardino County, California, in the following order: (i) the City Property Grant Deed; and (ii) the NH Transfer Deeds.
(b) Delivery of Documents.
(i) To NH Southridge. Escrow Holder shall deliver to NH Southridge (i) the NH Southridge Title Policy (as hereinafter defined) ; (ii) a conformed copy of the City Property Grant Deed, with an original to be mailed following recordation thereof in accordance with the information provided thereon; and (iii) one (1) original each of the City Property General Assignment , City’s Non-Foreign Affidavit and City’s California Form 593-C.
(ii) To City. Escrow Holder shall deliver to City (i) the City Title Policy (as hereinafter defined); (ii) a conformed copy of each NH Transfer Deed, with the originals to be mailed following recordation thereof in accordance with the information provided thereon; and (iii) one (1) original each of the NH Southridge Property General Assignment, NH Southridge ’s Non-Foreign Affidavit and NH Southridge ’s California Form 593-C.
4.7 Real Property Taxes . All non-delinquent general and special real property taxes shall be prorated to the Close of Escrow on the basis of the actual number of days in the month and year. Any supplemental tax bills for the NH Southridge Property or Conifer Property received after the Close of Escrow shall be paid by NH Southridge to the extent they relate to a period prior to the Close of Escrow. Any supplemental tax bills for the City Property received after the Close of Escrow shall be paid by City to the extent they relate to a period prior to the Close of Escrow, and by NH Southridge, to the extent they relate to a period after the Close of Escrow. If a supplemental tax bill covers a period commencing before and continuing after the Close of Escrow, th e Party named in the bill or receiving the bill will pay the tax and the other Party shall reimburse the first Party its pro rata share within thirty (30) days after receipt of a copy of the tax bill and evidence of the second Party’s payment of same. The provisions of this Section shall survive the Close of Escrow. If either Party fails to pay its pro rata share of taxes by the times herein provided, interest shall accrue on all unpaid amounts from when owing until paid at the lesser of ten percent (10%) per annum or the maximum amount of interest permitted by law.
4.8 Closing Costs. Each Party shall pay the cost of a premium for its respective Title Policy, any endorsements thereto, and the title charges incurred in connection therewith. NH Southridge shall pay a ll documentary or other transfer taxes payable on account of the conveyance of the City Property and all escro w fees charged by Escrow Holder shall be split equally between the Parties . Any other expenses or closing costs in connection with this transaction shall be apportioned in the manner customary in San Bernardino County, California. 173
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4.9 Commissions. NH Southridge and City each represent and warrant to the other that no real estate brokerage commission is payable to any person or entity in connect ion with the transactions contemplated hereby on account of or due to the acts or omissions of such representing Party, and each agrees to and does hereby indemnify, defend and hold the other harmless from and against the payment of any commission to any other person or entity claiming by, through or under NH Southridge or City, as applicable. This indemnification shall extend to any and all claims, liabilities, costs and expenses (including reasonable attorneys’ fees and litigation costs) arising as a result of such claims and shall survive the Closing.
4.10 Escrow Cancellation. If Escrow fails to close for any reason other than a default of one of the Parties under this Agreement, all cancellation fees, charges and expenses actually charged by Escrow Holder and the Title Company shall be split evenly by the Parties. If Escrow fails to close because of a default of either Party under this Agreement, such defaulting Party shall pay all such charges.
5. CONDITIONS TO CLOSE OF ESCROW.
5.1 NH Southridge Closing Conditions. In addition to any other condition set forth in this Agreement in favor of NH Southridge, NH Southridge shall have the right to condition its obligation to convey the NH Southridge Property and the Conifer Property to City and to accept the City Property from City and close the Escrow, upon the satisfaction, or written waiver by NH Southridge, of each of the following conditions precedent on the Closing Date or such earlier time as provided for herein (collectively, the “NH Southridge Closing Conditions”):
(a) Recorded Parcel Map . The recording of the Parcel Map referred to in Section 2 of this Agreement shall have been satisfied.
(b) Recorded Certificate of Compliance . The recording of the Certificate of Compliance referred to in Section 2 of this Agreement shall have been satisfied. (c) City Deliveries Made. City shall have deposited with Escrow Holder all documents required of City by this Agreement.
(d) NH Southridge Title Policy. Title Company shall be unconditionally and irrevocably committed to issue to NH Southridge at Closing a CLTA standard coverage owner’s policy of title insurance (the “NH Southridge Title Policy”), which shall insure NH Southridge’s title to the City Property in an amount equal to $2,000,000, subject only to the following (collectively, the “NH Southridge Permitted Exceptions ”): (i) the standard exceptions and exclusions from coverage contained in such form of the policy; (ii) real estate taxes not yet due and payable; (iii) matters created by, through or under NH Southridge ; (iv) items disclosed by the City Property Title Report (including any supplements) and approved or deemed approved by NH Southridge pursuant to the title review provisions in this Agreement ; and (v) the documents to be re corded under this Agreement. NH Southridge may elect to obtain an ALTA extended coverage own er’s policy of title insurance; provided, however, Title Company’s willingness to issue such extended coverage, or any endorsements, shall not be a condition to Closing. 174
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(e) No Default . City shall not then be in default of any of its obligations under this Agreement (and shall not have received notice of a default hereunder which has not been cured), and all representations and warranties of City contained herein shall be true and correct in all material respects as of the date of this Agreement and the Closing Date.
5.2 City Closing Conditions . In addition to any other condition set forth in this Agreement in favor of City, City shall have the right to condition its obligation to convey the City Property to NH South ridge and to accept the NH Southridge Property and the Conifer Property from NH Southridge and close the Escrow, upon the satisfaction, or written waiver by City, of each of the following conditions precedent on the Closing Date or such earlier time as provided for herein (collectively, the “City Closing Conditions”):
(a) Recorded Parcel Map . The recording of the Parcel Map referred to in Section 2 of this Agreement shall have been satisfied.
(b) Recorded Certificate of Compliance . The recording of the Certificat e of Compliance referred to in Section 2 of this Agreement shall have been satisfied. (c) NH Southridge Deliveries Made . NH Southridge shall have deposited with Escrow Holder all sums and documents required of NH Southridge by this Agreement to close Escrow.
(d) City Title Polic ies. Title Company shall be unconditionally and irrevocably committed to issue to City at Closing the following CLTA standard coverage owner’s policies of title insurance (collectively, the “City Title Policies”):
(i) a policy which shall insure City’s title to the NH Southridge Property in an amount of $1, 000,000, subject only to the following exceptions: (i) the standard exceptions and exclusions from coverage contained in such form of the policy; (ii) real estate taxes not yet due and payab le; (iii) matters created by, through or under City; (iv) it ems disclosed by the NH Southridge Property Title Report (including any supplements) and approved or deemed approved by City pursuant to the title review provisions in this Agreement; and (v) the documents to be recorded under this Agreement. City may elect to obtain an ALTA extended coverage owner’s policy of title insurance; provided, however, Title Company’s willingness to issue such extended coverage, or any endorsements, shall not be a condition to Closing; and (ii) a policy which shall insure City’s title to the
Conifer Property in an amount of $1,000,000, subject only to the following exceptions:
(i) the standard exceptions and exclusions from coverage contained in such form of the policy; (ii) real estate taxes not yet due and payable; (iii) matters created by, through or under City; (iv) it ems disclosed by the Conifer Property Title Report (including any supplements) and approved or deemed approved by City pursuant to the title review provisions in this Agreement ; and (v) the documents to be recorded under this Agreement. City may elect to obtain an ALTA extended coverage owner’s policy of title 175
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insurance; provided, however, Title Company’s willingness to issue such extended coverage, or any endorsements, shall not be a condition to Closing. (e) No Default . NH Southridge shall not then be in default of any of its obligations under this Agreement (and shall not have received notice of a default hereunder which has not been cured), and NH Southridge’s representations and warranties contained herein shall be true and correct in all material respects as of the date of this Agreement and the Closing Date.
5.3 Waiver. NH Southridge may at any time or times, at its election, waive any of the conditions set forth in Section 5.1 above to its obligations hereunder, but any such waiver shall be effective only if contained in a writing signed by NH Southridge and delivered to City and Escrow Holder. City may at any time or times, at their election, waive any of the conditions set forth in Section 5.2 above to its obligations hereunder, but any such waiver shall be effective only if contained in a writing signed by City and delivered to NH Southridge and Escrow Holder.
Notwithstanding the foregoing, neither party may waive the conditions set forth in Sections
5.1(a), 5.1(b), 5.2(a) or 5.2(b).
6. REPRESENTATIONS AND WARRANTIES.
6.1 Representations and Warranties . Each Party hereby makes the following representations and warranties to the other:
(a) Authority. Each Party has the requisite right, legal capa city and authority to enter into this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby.
(b) Title. Neither City nor NH Southridge have entered into any unrecorded purchase agreements, option agreements, rights of first refusal, conditional sales contracts, or other title retention agreements which would prevent the Parties from conveying their respective Parcels to the other Party pursuant to the terms of this Agreement.
(c) No Insolvency, etc. Neither Party (a) has made any assignment for the benefit of creditors; (b) has admitted in writing its inability to pay its debts as they mature; (c) has been adjudicated a bankrupt; or (d) has filed a petition in voluntary bankruptcy, a petition or answer seeking reorganization, or an arrangement with creditors under any bankruptcy law or any other similar law or statute of the United States or any state, nor are any of such proceedings contemplated by either Party, nor is any such petition filed against either Party.
(d) Foreign Person or Entity; OFAC . Neither Party is not a foreign person, nonresident alien, foreign corporation, foreign partnership, foreign trust, or foreign estate, as those terms are defined in the Internal Revenue Code a nd the Income Tax Regulations promulgated thereunder. Each Party has at all applicable times been, is now and will in the future be, in compliance with all laws, statutes, rules and regulations or any federal, state or local governmental authority in the United States of America applicable to such Party, including, without limitation, the requirements of Executive Order No. 133224, 176
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66 Fed Reg. 49079 (September 25, 2001) and other similar requirements contained in the rules and regulations of the Office of Foreign Asset Control, Department of the Treasury and in any enabling legislation in respect thereof.
(e) Acknowledgments and Representations Regarding Conifer Property. NH Southridge represents and warrants that it has the right, power, and authority to undertake all of its obligations hereunder with respect to the Conifer Property, or to cause the fee owner of the Conifer Property (the “ Conifer Owner”) to perform such obligations, including, without limitation , NH Southridge’s obligation to convey the Conifer Property to City pursuant to the terms hereof. City and NH Southridge acknowledge and agree that NH Southridge may satisfy some or all of its obligations hereunder with respect to the Conifer Property by causing the Conifer Owner to perform such obligations, and such performance by the Conifer Owner shall constitute performance by NH Southridge hereunder.
6.2 All representations and warranties contained in Section 6.1 made in writing by the Parties in connection with the transactions herein provided for sh all be true and correct on the date hereof and on the Closing Date, which representations and warranties shall survive the Closing for a period of one (1) year.
7. DISCLAIMERS AND RELEASE.
7.1 Disclaimer. Except for the specific representations and warranties se t forth herein, each Party acknowledges and agrees that it will be provided the opportunity to thoroughly inspect, investigate and exercise due diligence, and the opportunity to fully and independently become familiar with, and fully satisfy itself regardi ng, any and all matters relating to the Parcel it is acquiring. Except as provided in this Agreement, neither Party has made nor makes, and specifically negates and disclaims any representations, warranties, promises, covenants, agreements or guaranties o f any kind or character whatsoever, whether express or implied, oral or written, past, present or future, of, as to, concerning or with respect to the Parcel it is conveying or its condition, including, without limitation, (i) the value of the such Parcel; (ii) the income to be derived from such Parcel; (iii) the suitability of such Parcel for any and all activities and uses which the other Party may conduct thereon, including, without limitation, the possibilities for future development of such Parcel; (iv ) the habitability, merchantability, marketability, profitability or fitness for a particular purpose of such Parcel; (v) the manner, quality, state of repair or lack of repair of such Parcel; (vi) the nature, quality or condition of such Parcel, including , without limitation, the water, soil and geology; (vii) the compliance of or by such Parcel or its operation with any laws, rules, ordinances or regulations of any applicable governmental authority or body including, without limitation, Title III of the Americans With Disabilities Act of 1990; (viii) the manner or quality of the construction or materials incorporated into such Parcel; (ix) compliance with any environmental protection, pollution or land use laws, rules, regulations, orders or requirements i ncluding, without limitation, the Federal Water Pollution Control Act, the Federal Resource Conservation and Recovery Act, the U.S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, the Resource Conservation and Recovery Act of 1976, the Clean Water Act, the Safe Drinking Water Act, the Hazardous Materials Transportation Act, the Toxic Substance Control Act, and 177
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regulations promulgated under any o f the foregoing (collectively, “ Environmental Laws ”); (x) the presence or absence of hazardous materials at, on, under, or adjacent to such Parcel including, but not limited to, petroleum products, asbestos, lead -based paint, mold or fungi; (xi) the conten t, completeness or accuracy of any of the Due Diligence Items; (xii) the conformity of any improvements to any plans or specifications for such Parcel; (xiii) the conformity of such Parcel to past, current or future applicable zoning or building requiremen ts; (xiv) the fact that all or a portion of such Parcel may be located on or near an earthquake fault line; and (xv) the existence of vested land use, zoning or building entitlements affecting such Parcel. Neither Party is liable or bound in any manner by any oral or written statements, representations or information pertaining to the Parcel it is conveying, or the operation thereof, furnished by any real estate broker, agent, employee, servant or other person. Except as otherwise provided in this Agreeme nt, each Party further acknowledges and agrees that to the maximum extent permitted by law, the exchange of the Parcels as provided for herein is made on an “AS-IS” condition and basis as of the Closing Date with all faults, and that the conveying Party has no obligations to make repairs, replacements or improvements, whether before or after the Close of Escrow. Each Party covenants to the other, which covenant will survive the Close of Escrow and not be merged with any deeds, that, except as otherwise pro vided in this Agreement, it will solely rely upon its own investigation of the Parcel it is acquiring and all other matters relating to such Parcel, and not on any information provided or to be provided by the conveying Party or anyone acting on its behalf.
7.2 Release and Waiver.
7.2.1 Except for the specific covenants, representations and warranties set forth in this Agreement, each Party hereby fully and forever releases, acquits and discharges the other Party, their respective partners, members, affiliates, off icers, employees and agents (collectively, the “Related Parties ”) of and from, and hereby fully and forever waives any and all claims, actions, causes of action, suits, proceedings, demands, rights, damages, costs, expenses or other compensation whatsoever , whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent, that the indemnifying party now has or may have or which may arise in the future arising out of, directly or indirectly, or in any way connected with the Parcel it is acquiring or any other matters relating to such Parcel, including, without limitation:
(A) any condition of environmental contamination or pollution at such Parcel , however and whenever occurring (including, without limitation, the contaminat ion or pollution of any soils, subsoil media, surface waters or groundwaters at such Parcel ) including, but not limited to, petroleum products, asbestos, lead -based paint, mold or fungi; (B) to the extent not already included in (A) above, the prior, prese nt or future existence, release or discharge, or threatened release, of any hazardous materials or substances (as defined in any Environmental Law) at such Parcel, however and whenever occurring; (C) the violation of, or non -compliance with, any applicable law now or hereafter in effect, however or whenever occurring; (D) the condition of the soil at such Parcel; (E) the condition of any improvements including, without limitation, the structural integrity and seismic compliance of such improvements; (F) the inaccuracy, unreliability, or incompleteness of, or any defect or mistake in, any Due Diligence Items; or (G) to the extent not already covered by any of the foregoing clauses (A) through (F), above, the use, maintenance, development, construction, conver sion of use, ownership or operation of such Parcel by the conveying Party, its Related Parties or any of their respective predecessor(s) -in- interest.
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7.2.2 Without limiting the scope or generality of the foregoing release and waiver provisions, except as provide d below with respect to matters arising prior to Closing, those provisions shall specifically include and cover (1) any claim for or right to indemnification, contribution or other compensation based on or arising under any Environmental Law now or hereafter in effect, and (2) any claim for or based on trespass, nuisance, waste, negligence, negligence per se, strict liability, ultrahazardous activity, indemnification, contribution of other theory arising under the common law of the State of California (or a ny other applicable jurisdiction) or arising, under any applicable law now or hereafter in effect. Notwithstanding anything to the contrary contained in this Agreement, the foregoing release and waiver provisions shall not apply to or otherwise affect (a) each Party’s obligations with respect to any covenants, representations or warranties of such Party set forth in this Agreement or any document executed in connection herewith, (b) any claims against any contractor, subcontractor, design professional or other consultant performing work or services with respect to such Parcel, or (c) any claims arising from the acts of such Party or its Related Parties after the Closing (the matters described in clauses (a) through (c) may be collectively referred to as the “Excluded Matters”).
7.3 Waiver of Civil Code § 1542. Each Party hereby acknowledges that it has read and is familiar with the provisions of California Civil Code § 1542 (“Section 1542”), which are set forth below:
"A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS THAT THE CREDITOR OR RELEASING PARTY
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR
HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER,
WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED
PARTY."
Each Party hereby waives the provisions of Section 1542, and of any statute, principle of common law or case law which would limit the scope of the foregoing waiver and release, in connection with matters which are the subject of the foregoing waiver and release.
NH SOUTHRIDGE’S INITIALS: _________ CITY’S INITIALS: __________
7.4 Natural Hazards . EACH PARTY ACKNOWLEDGES THAT “NATURAL HAZARDS” DESCRIBED IN THE FOLLOWING CALIFORNIA CODE SECTIONS (THE “NATURAL HAZARD LAWS”) MAY AFFECT THE PARCEL IT IS ACQUIRING :
GOVERNMENT CODE SECTIONS 8589.4; 8589.3; GOVERNMENT CODE SECTIONS 51183.4, 51183.5 (FIRE HAZARD SEVERITY ZONE); PUBLIC RESOURCE CODE SECTION 2621.9 (EARTHQUAKE FAULT ZONE); PUBLIC RESOURCE CODE SECTION 2694 (SEISMIC HAZARD ZONE); AND PUBLIC RESOURCE CODE SECTION 4136 (WILDLAND AREA). EACH PARTY ACKNOWLEDGES AND AGREES THAT IT WILL
HAVE THE OPPORTUNITY TO INDEPENDENTLY EVALUATE AND INVESTIGATE
WHETHER ANY OR ALL OF SUCH NATURAL HAZARDS AFFECT THE PARCEL IT IS
ACQUIRING AND THE CONVEYING PARTY SHALL HAVE NO LIABILITIES OR 179
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OBLIGATIONS WITH RESPECT THERETO. WITHOUT LIMITING THE FOREGOING,
EACH PARTY ACKNOWLEDGES AND AGREES THAT IT KNOWINGLY AND
INTENTIONALLY WAIVES ANY DISCLOSURES, OBLIGATIONS OR REQUIREMENTS
OF THE CONVEYING PARTY WITH RESPECT TO NATURAL HAZ ARDS, INCLUDING,
WITHOUT LIMITATION, ANY DISCLOSURE OBLIGATIONS OR REQUIREMENTS
UNDER THE AFOREMENTIONED CODE SECTIONS OR UNDER CALIFORNIA CIVIL CODE SECTION 1102C. EACH PARTY REPRESENTS THAT IT HAS EXPERIENCE
ACQUIRING AND CONDUCTING DUE DILIGENCE, AND T HAT THIS WAIVER HAS
BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THE BARGAIN BETWEEN THE PARTIES.
7.5 Survival. The acknowledgements, consents, agreements and releases set forth in this Article 7 shall survive the Closing.
8. POST-CLOSING COVENANTS.
8.1 New Public Park. Following the Closing, NH Southridge shall construct a new approximately 1.6 acre park on the NH Southridge Property at the corner of Village Drive and Live Oak Ave. for use by the public (the “Trailhead Park”). The Trailhead Park shall include new parking lot, passive play area, pickleball courts trailhead entrance , and related improvements, except as approved by the City in the future. The collective costs to be incurred by Developer to construct Trailhead Park shall not need to exceed $950,000. NH Southridge, or its successor-in-interest, shall design, entitle and build the Trailhead Park with any entitlement related to the City Property. The City may require the completion of t he Trailhead Park as a condition of approval to any entitlement approved with respect to the development of the City Property.
8.2 Rock Fall Mitigation . City shall permit NH Southridge and its successors -in- interest, to access the NH Southridge Property and certain adjacent City -owned property commonly known as APN: 0237 -411-15 (the “Adjacent City Property ”) to institute, construct and maintain any rock fall mitigation necessary to increase the safety of the NH Southridge Property and Adjacent City Property , including, without limitation, the removal of boulders and rocks hanging from the face of the old granite quarry, and installation of a rockfall protection barrier on the NH Southridge Property and the Adjacent City Property.
9. MISCELLANEOUS.
9.1 Attorneys’ Fees . If either Party commences an action against the other Party arising out of or in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorney’s fees and litigation costs of suit from the other, including all such fees and costs incurred on any appeal.
9.2 Notices. All notices requi red to be delivered under this Agreement to the other Party must be in writing and shall be effective (a) when personally delivered by the other Party or messenger or courier thereof; (b) three (3) business days after deposit in the United States mail, registered or certified; (c) the next business day after deposit before the daily deadline time with a reputable overnight courier or service; or (d) if by electronic mail or facsimile, on the date 180
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of transmission with co nfirmed successful transmission , in ea ch case postage fully prepaid and addressed to the respective Parties as set forth below or to such other address and to such other persons as a Party may hereafter designate by written notice to the other Party hereto:
To NH Southridge: NH Southridge
c/o NewBridge Homes
500 Newport Center Drive, Suite 570
Newport Beach, CA 92660
Attn: J. Robert Meserve, Esq., General Counsel
Email: [email protected]
To City: City of Fontana
8353 Sierra Ave
Fontana, CA 92335
Attn: Matthew Ballantyne, City Manager
Email: [email protected]
With a copy to: Rutan & Tucker LLP
18575 Jamboree Road, 9th Floor
Irvine, CA 92612
Attn: Jennifer Farrell, Esq.
Email: [email protected]
To Escrow Holder: Fidelity National Title Company
3237 E. Guasti Road, Suite 105
Ontario, CA 91761
Attn: Mary Lou Adame
Email: [email protected]
9.3 Assignment. Neither Party shall assign this Agreement without the other Party’s prior written consent, which may be withheld in such other Party’s reasonable discretion.
Notwithstanding the foregoing, NH Southridge may, upon prior written notice to City, assign this Agreement, provided the assignee (“Assignee”) must assume in writing the obligations of NH Southridge hereunder prior to the Close of Escrow and also provided that Assignee is the owner of the City Property.
9.4 Time of the Essence . Ti me is of the essence with respect to each of the terms, covenants, and conditions of this Agreement.
9.5 Computation of Time . Any reference in this Agreement to time for performance of obligations or elapsed time shall mean consecutive calendar days or months , as applicable, unless otherwise explicitly indicated herein. The time in which any act is to be done under this Agreement is computed by excluding the first day and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term “holiday” shall mean all holidays as specified in Section 6700 and 6701 of the California Government Code. 181
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9.6 Successors and Assigns. Subject to the limitations of Section 9.3, this Agreement shall be binding upon the Parties hereto and their respective heirs, representatives, transferees, successors, and assigns.
9.7 Entire Agreement, Waivers, and Amendments . This Agreement incorporates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the Parties with respect to all or part of the subject matter hereof. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Party to be charged. Any amendment or modification to this Agreement must be in writing and executed by NH Southridge and City.
9.8 Interpretation; Governing Law . This Agreement shall be construed according to its fair meaning and as if prepared by both Parties hereto. This A greement shall be construed in accordance with the laws of the State of California without regard to conflict of law principles.
9.9 Severability. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement, which purposes include an exchange of the Parcels.
9.10 Covenants to Survive Escrow . The covenants, terms, and agreemen ts contained in this Agreement shall survive the Closing except to the extent such provisions are expressly limited in time, shall not merge with the provisio ns of any closing documents , and shall not be merged with any of the City Property Grant Deed or the Transfer Deeds.
9.11 Termination. No termination of this Agreement shall release any Party in default and this Agreement shall survive for purposes of allowing a Party to enforce its rights and remedies under this Agreement in the event of a default.
9.12 Execution in Counterpart . This Agreement may be executed in several counterparts, and all so executed shall constitute one agreement binding on both Parties hereto , notwithstanding that both Parties are not signatories to the original or the same counterpart
9.13 Implementation of Agreement . The City Manager shall have the authority to implement this Agreement and the transaction contemplated herein, including, without limitation, authorizing approvals and consents, granting extensions of time to perform, and executing documents, including amendments to the terms of this Agreement, provided that any approvals, consents or amendments that increase the risk or cost to be i ncurred by City hereunder, or decrease the revenue to be received by City hereunder, shall require the approval of the Fontana City Council.
9.14 Exhibits. The exhibits attached to this Agreement are incorporated herein by this reference and made a part hereof. Said Exhibits are identified as follows:
Exhibit “A-1” - Depiction of NH Southridge Property
Exhibit “A-2” - Depiction of Conifer Property
Exhibit “B” - Legal Description of City Property
182
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Exhibit “C” - Site Map
Exhibit “D” - Form of General Assignment
Exhibit “E” - City Property Grant Deed
[signatures follow]
183
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IN WITNESS WHEREOF, NH Southridge and CITY have entered into this Agreement as of the date first set forth above.
NH SOUTHRIDGE:
NH SOUTHRIDGE LLC,
a California corporation
By: NewBridge Homes LLC,
a California corporation
Its Managing Member
By:
Ian Harvey, Manager
CITY:
CITY OF FONTANA,
a California municipal corporation
By:
Matthew Ballantyne, City Manager
ATTEST:
_________________________
____________, City Clerk
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ACCEPTANCE BY ESCROW HOLDER
The undersigned hereby acknowledges that it has received a fully executed copy of the foregoing Agreement for Exchange of Real Property and Joint Escrow Instructions and agrees to act as Escrow Holder thereunder and to be bound by and perform the terms thereof as such terms apply to Escrow Holder.
Date executed by
Escrow Holder:
FIDELITY NATIONAL TITLE COMPANY
, 2023 By:
Name: Mary Lou Adame
Title:
185
EXHIBIT “A-1”
EXHIBIT “A-1”
DEPICTION OF NH SOUTHRIDGE PROPERTY
[To be inserted]
186
EXHIBIT “A-2”
EXHIBIT “A-2”
DEPICTION OF CONIFER PROPERTY
[To be inserted]
187
EXHIBIT “B”
EXHIBIT “B”
LEGAL DESCRIPTION OF CITY PROPERTY
The land referred to in this Agreement is situated in the City of Fontana, County of San Bernardino, State of California, and is described as follows:
LOT 11 OF TRACT NO. 15117, IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 275, PAGES 66 THROUGH 90, INCLUSIVE, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 0237-411-13-0-000
188
EXHIBIT “C”
EXHIBIT “C”
Site Map
189
EXHIBIT “D”
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EXHIBIT “D”
GENERAL ASSIGNMENT
THIS GENERAL ASSIGNMENT ( this “Assignment”) is entered into as of ________________, by ____________________ (“Assignor”), in favor of ____________________ (“Assignee”), in connection with that certain Agreement for Exchange of Real Property and Joint Escrow Instructions dated as of February __, 2023 , by and between Assignor and Assignee, as the same has been or may be amended (the “ Exchange Agreement”) pursuant to which A ssignor and Assignee agreed to exchange certain real property as more particularly described therein. All terms with initial capital letters shall have the meaning ascribed thereto in the Exchange Agreement except as otherwise defined herein.
NOW, THEREFORE, in consideration of the covenants and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Assignment. Assignor hereby assigns and transfe rs to Assignee all of Assignor’s right, title and interest in, to and arising out of the [NH Southridge/Conifer Property and City Property] and/or developme nt entitlements related to the [ NH Southridge Property/Conifer and City Property] (including any pen ding applications), including, but not limited to, all reports, studies, permits, licenses, rights of way, plans, maps, site plans, drawings, specifications, surveys, consultant work product, warranties, guaranties, agreements, contracts, development agreements, subdivision improvement agreements, utility rights, development rights, approvals, entitlements, indemnities, claims, actions or defenses, prepaid development fees, credits, rights of reimbursement, governmental permits, certifications, licenses, va riances, specific plan amendments, variances, site plans, general plan amendments, maps, negative declarations, environmental impact reports, CEQA findings and determinations, will serve letters and all similar rights related to the [NH Southridge /Conifer Property and City Property], whether granted by governmental or quasi -governmental authorities or private persons or entities and all Due Diligence Items (as defined in the Exchange Agreement) pertaining to the [ NH Southridge/Conifer Property and City Property].
2. Further Assurances . Assignor shall execute and deliver to the Assignee any additional instrument or other document that Assignee reasonably requests to evidence the assignment of the rights hereunder promptly upon request. Assignor shall cooper ate and assist Assignee in obtaining any consents required to effectuate this Assignment.
[signatures follow]
190
EXHIBIT “D”
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IN WITNESS WHEREOF, the parties have executed this Assignment as of the date first above written.
ASSIGNOR:
ASSIGNEE:
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EXHIBIT “E”
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EXHIBIT “E”
CITY PROPERTY GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
_____________________
_____________________
_____________________
_____________________
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN: 0237-411-13
Grant Deed
The undersigned Grantor(s) declare(s):
Documentary transfer tax is $_________________
Computed on full value of property conveyed, or
Computed on full value less value of liens and encumbrances remaining at time of sale.
Unincorporated area City of _______________, and
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, The City of Fontana, a municipal corporation
hereby GRANT(S) to
NH SOUTHRIDGE LLC, a California limited liability company the following described real property in the City of ___________, County of _____________, State of California:
SEE ATTACHED EXHIBIT A.
Dated: _______________, 20___
_______________________, a __________________
By: _________________________________
___________________ (Name)
___________________ (Title)
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EXHIBIT “E”
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of )
On before me, , Notary Public (insert name and title of the officer)
personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
193
EXHIBIT "A"
LEGAL DESCRIPTION
The real property is situated in the City of Fontana, County of San Bernardino, State of California, and is described as follows:
LOT 11 OF TRACT NO. 15117, IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 275, PAGES 66 THROUGH 90, INCLUSIVE, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
APN: 0237-411-13-0-000
194
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1999 Agenda Date: 2/14/2023
Agenda #: I. Category: Consent Calendar
FROM:
Human Resources
SUBJECT:
Award bid for Third Party Administrator for Workers’ Compensation Program RECOMMENDATION:
1. Award bid (SP-90-HR-22) and authorize the City Manager to execute a contract with JT2 Integrated Resources for annual claim administration and medical review.
2. Approve and authorize the City Manager to execute any future amendments to the contract.
3. Adopt Resolution No. 2023-010, Awarding the Contract for Third Party Administrator Services.
COUNCIL GOALS:
· Operate in a businesslike manner by ensuring that the public debate is based on accurate information.
· Practice sound fiscal management by living within our means while investing in the future.
· Create and maintain a dynamic team by promoting stability and predictability by providing consistent policy direction.
DISCUSSION:
The City of Fontana is self-insured for Workers’ Compensation. The City’s previous contract with JT2 Integrated Resources expired in June 2022. As a result, the City opened the RFP process.
The Purchasing Office issued an RFP for Third Party Administrator Services (SP-90-HR-22), 71 vendors were notified from the city's online bid system and six (6) submitted proposals. The Evaluation Committee reviewed the proposals based on the criteria outlined in the RFP (Qualifications, Technical Approach, and Fee Structure). The Committee reviewed the proposals and ranked the bidders accordingly. Phase II of the evaluation, the Committee interviewed the top three bidders and ranked them based on the overall evaluation.
Staff is recommending JT2 Integrated Resources to be awarded the contract for the Third Party Administrator Services. Staff is impressed with credentials and services that JT2 Integrated Resources provides including their flat rate pricing, claims management services and fully integrated program. Contract award will be for services over the next five (5) years.
FISCAL IMPACT:
Funds have been budgeted in the Risk Management Division for Fiscal Year 2022/23 to include as a recurring cost. The Fee Services and Expenses are proposed to begin at $186,900.57 and increase City of Fontana Printed on 2/8/2023Page 1 of 2
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File #: 21-1999 Agenda Date: 2/14/2023
Agenda #: I. Category: Consent Calendar
at a set rate of 5% per year over the life of the contract.
MOTION:
Approve staff recommendation.
City of Fontana Printed on 2/8/2023Page 2 of 2
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Resolution No.