MEETING OF THE FOWLER CITY COUNCIL
AGENDA
TUESDAY, AUGUST 16, 2022
7:00 P.M.
CITY COUNCIL CHAMBER
128 SOUTH 5TH STREET
FOWLER, CA 93625
In compliance with the Americans with Disabilities Act, if you need assistance or accommodations to access the City Council Chambers or participate in this meeting, please contact the Clerk at (559) 834-3113 x102. Notification at least 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility.
City Council meetings are open to the public at the physical address listed above. There are numerous ways to participate in the City Council meetings: you may attend in person, you may appear by telephone as described below, or you may submit written comments via email to [email protected]. Please include your name and reference the agenda item you are commenting on, if any. Written comments received that do not specify an agenda item will be marked for the general public comment portion of the agenda. Emails received by 8:00 am on the date of the meeting will be provided to the City Council at the meeting and made part of the record of proceedings but will not be read aloud.
En cumplimiento con la Acta de Americanos con Discapacidades si necesita asistencia o adaptaciones para acceder a las Cámaras del Concejo de la Ciudad o participar en esta reunión, comuníquese con el secretario de la ciudad al (559) 834-3113 x102. También puede ponerse en contacto con el secretario si necesita servicios de traducción. La notificación al menos 48 horas antes de la reunión permitirá a la Ciudad hacer arreglos razonables para garantizar la accesibilidad.
Consistent with Government Code 54953 as amended by AB 361, and City Council Resolution No. 2522, this meeting may be accessed by members of the public or City Council members via Zoom.
The telephone number and Zoom link listed below will provide access to the meeting via teleconference or video conference.
https://us06web.zoom.us/j/82297073660?pwd=R1BzNGU5WFhnak4rMWtua3JKZVJKZz09 Telephone Number: (253) 215-8782
Meeting ID: 822 9707 3660
Passcode: 357523
Persons accessing the meeting will have an opportunity to provide comments at appropriate times during the meeting. To speak during a public comment period, press *9 on your phone to raise your hand or click “raise hand” in the webinar. At the appropriate time, you will be prompted to unmute yourself, and asked to identify yourself when providing public comment.
Any writing or document that is a public record and provided to a majority of the City Council regarding an open session item on the agenda will be made available for public inspection at City Hall, in the City Clerk's office, during normal business hours. In addition, such writings and documents may be posted on the City's website at www.fowlercity.org.
Resolutions and Ordinances - With respect to the approval of resolutions and ordinances, the reading of the title thereto shall be deemed a motion to waive a reading of the complete resolution or ordinance and unless there is a request by a Councilmember that the resolution or ordinance be read in full, further reading of the resolution or ordinance shall be deemed waived by unanimous consent of the Council.
1. Meeting Called to Order
2. Roll Call
3. Invocation by Pastor Wally Roberts of Rose of Sharon Church
4. Pledge of Allegiance
5. Public Comment
This portion of the meeting is reserved for persons desiring to address the Council on any matter not described on this agenda. Presentations are limited to 5 minutes per person and no more than 15 minutes per topic.
6. Consent Calendar
Items on the Consent Calendar are considered routine and include a recommended action from Staff and shall be acted on by one motion of the Council. If a Councilmember requests additional information or would like to pull an item for discussion, that item shall be pulled from the Consent Calendar and acted upon separately. A Councilmember may register an action on an individual item without pulling the item from the Consent Calendar. A motion to approve the Consent Calendar is deemed to include a motion to waive the full reading of any ordinance or resolution on the Consent Calendar. For adoption of ordinances, only those which received a unanimous vote of the Councilmembers present at introduction shall be eligible for placement on the Consent Calendar.
6-A. RATIFY Warrants for August 16, 2022
6-B. APPROVE Minutes of the August 2, 2022 City Council Special Meeting 6-C. APPROVE Minutes of the August 2, 2022 City Council Meeting
6-D. APPROVE Resolution No. 2588, A Resolution of the City Council of the City of Fowler Authorizing Continued Use of Remote Teleconferencing for City Council Meetings and Commission Meetings During Declared State of Emergency in Accordance with Government Code Section 54953 as amended by AB 361 (City Attorney)
6-E. Actions pertaining to electronic building entry access control system (City Clerk) 1) AUTHORIZE the City Manager to negotiate and execute an agreement with Hoffman Electronic Systems for the purchase and installation of an electronic building entry access control system for City Hall in the amount of $29,995
2) APPROVE Resolution No. 2589 amending the 2022-2023 Adopted Budget in the amount of $4,995
6-F. APPROVE a professional services agreement with Price Paige & Company in the amount of $55,000 for year-end closing and audit support services for fiscal year 2021-22 (Finance)
6-G. Actions pertaining to copier and printers (Information Technology) 1) APPROVE an agreement with Xerox Financial Services LLC in the amount of $1,390.62 per month for 63 months for the lease of copiers and printers
2) APPROVE an agreement with Image Source in an amount not to exceed $26,000 for 63 months for the service, supplies, and maintenance of copiers and printers, based on actual meter readings
6-H. APPROVE Statement of Work Agreements with CivicPlus in the amount of $14,104 for website and meeting management design and two (2) years of service, and authorize the City Manager to execute related documents (Information Technology)
6-I. ADOPT Ordinance No. 2022-06, repealing Chapter 3, of Title 9 of the Fowler Municipal Code to consolidate and clarify setback standards (Planning) 6-J. ADOPT Ordinance No. 2022-07 amending Section 9-5.1605, of Chapter 5, of Title 9 of the Fowler Municipal Code (Planning)
6-K. ADOPT an Ordinance amending Title 4, Chapter 4, Article 2 of the Fowler Municipal Code regarding the parking of vehicles, towing of parked vehicles, and parking citations; and the repeal of Title 4, Chapter 4, Article 5 regarding trains (Planning)
6-L. APPROVE a Resolution setting parking violation amounts (Planning) 6-M. ACCEPT a donation to the City in the amount of $1,050 from Adventist Health for Wednesday Nights at the Park (Recreation)
6-N. ACTIONS pertaining to approval of final map for Tract 6381 1) ADOPT Resolution No. 2591 approving the final map for Tract 6381 accepting on behalf of the public, the streets, and easements as offered on the map in accordance with the terms of the dedications
2) AUTHORIZE the City Engineer to transmit the Final Map of Tract 6381 and associated documents to the Fresno County Recorder’s Office for recording
3) AUTHORIZE the City Manager to execute the Subdivision Agreement for Tract 6381 on behalf of the City
7. Contested Consent Calendar - Items pulled from the Consent Calendar will be heard individually immediately after action is taken on the Consent Calendar.
8. General Administration
8-A. Planning
i. APPROVE an agreement with Toole Design Group, LLC in the amount of $82,234 for downtown streetscape conceptual design
8-B. Public Works
i. INTRODUCE and receive direction regarding proposed park design standards
8-C. City Council
i. APPOINT delegates to various boards, agencies, and commissions 1) Consolidated Mosquito Abatement District: Mejia
2) Finance Committee: Kazarian and Parra
3) Five Cities Economic Development Authority: Kazarian Alternate: Rodriquez
4) Fowler Recreation Commission: Mejia
5) Friends of Fowler Library: Mejia
6) Fresno County Council of Governments (COG): Parra
Alternate: Kazarian
7) Highway 99 Beautification Committee: Rodriquez
Alternate: Mejia
8) SJV Air Pollution Control District Committee: Rodriquez Alternate: Kazarian
9) Selma-Kingsburg-Fowler Sanitation District (SKF): Parra Alternate: Rodriquez
10) South Kings Ground Water Sustainability Agency: Kazarian 11) Southeast Regional Solid Waste Commission: Rodriquez Alternate: Parra
9. City Manager Update
9-A. Discussion and seek direction on negotiations with City of Selma, Ambulance/Emergency Medical Services Division
10. City Attorney Report
11. Staff Communications (City Manager)
12. Councilmember Reports and Comments
13. Adjourn
Next Ordinance No. 2022-08
Next Resolution No. 2592
CERTIFICATION: I, Angela Vasquez, Deputy City Clerk of the City of Fowler, California, hereby certify that the foregoing agenda was posted for public review on Friday, August 12, 2022.
Angela Vasquez
Angela Vasquez
Deputy City Clerk
CHECK NUMBERS CHECK DATES AMOUNT
ACCOUNTS PAYABLE CHECKS
Regular checks 39926-39990 August 3 thru August 10 $ 432,670.98TOTAL ACCOUNTS PAYABLE CHECKS $ 432,670.98
PAYROLL COSTS
First August Bi-Monthly Payroll August 15, 2022 114,472.18 $ TOTAL PAYROLL COSTS $ 114,472.18
TOTAL CASH DISBURSEMENTS $ 547,143.16
NOTE:
Check #39926 Void check Check #39982 Void check Check #39970 Void check
CITY OF FOWLER
WARRANTS LIST
August 16, 2022
6-A
SUPERION PAGE NUMBER: 1
DATE: 08/11/2022 CITY OF FOWLER ACCTPA21
TIME: 14:30:32 CHECK REGISTER - DISBURSEMENT FUND
SELECTION CRITERIA: transact.check_no between '39926' and '39990' ACCOUNTING PERIOD: 2/23
FUND - 100 - GENERAL FUND
CASH ACCT CHECK NO ISSUE DT VENDOR NAME DEPT -----DESCRIPTION------ SALES TAX AMOUNT 1001 39926 08/02/22 14669 A BOUNCIN' BLAST 6120 NNO BOUNCE HOUSES 0.00 1,140.00 1001 39926 V 08/02/22 14669 A BOUNCIN' BLAST 6120 NNO BOUNCE HOUSES 0.00 -1,140.00 TOTAL CHECK 0.00 0.00
1001 39927 08/03/22 14670 ANDERSON PUMP CO 5000 BASIN REPAIRS WATER 0.00 1,691.76 1001 39928 08/03/22 10153 J'S COMMUNICATIONS, INC 6120 COMPUTER REPAIR #15 0.00 187.88 1001 39929 08/03/22 13655 PROVOST & PRITCHARD 6150 REZONE 22-10 0.00 226.10 1001 39929 08/03/22 13655 PROVOST & PRITCHARD 6150 CUP 19-02 0.00 233.10 1001 39929 08/03/22 13655 PROVOST & PRITCHARD 6150 SPR 21-21 0.00 265.70 1001 39929 08/03/22 13655 PROVOST & PRITCHARD 6150 CUP 22-09 0.00 303.80 1001 39929 08/03/22 13655 PROVOST & PRITCHARD 6150 SPR 22-08 0.00 304.50 1001 39929 08/03/22 13655 PROVOST & PRITCHARD 6150 SPR 22-21 0.00 381.50 1001 39929 08/03/22 13655 PROVOST & PRITCHARD 6150 TTM 21-0015 0.00 1,038.80 1001 39929 08/03/22 13655 PROVOST & PRITCHARD 6150 VAR 22-0020 0.00 1,925.78 TOTAL CHECK 0.00 4,679.28
1001 39930 08/03/22 10026 BCT CONSULTING 6030 VOIP 8/1/22 0.00 250.00 1001 39930 08/03/22 10026 BCT CONSULTING 6150 VOIP 8/1/22 0.00 250.00 1001 39930 08/03/22 10026 BCT CONSULTING 6120 VOIP 8/1/22 0.00 250.00 1001 39930 08/03/22 10026 BCT CONSULTING 5000 VOIP 8/1/22 0.00 250.00 TOTAL CHECK 0.00 1,000.00
1001 39931 08/03/22 10024 BSK ASSOCIATES 5000 SUPPLIES-WATER 0.00 233.00 1001 39932 08/03/22 14131 CENTRAL VALLEY SWEEPING, 2250 STREET SWEEP JULY 0.00 3,025.00 1001 39933 08/03/22 14634 DEWBERRY ARCHITECTS INC 7200 PD SENIOR CTR DESIGN 0.00 9,444.50 1001 39934 08/03/22 13275 FERGUSON WATERWORKS #142 5000 SUPPLIES WATER 0.00 1,928.63 1001 39935 08/03/22 12567 FRESNO MOBILE RADIO INC 5000 SERVICE JULY 22 0.00 240.00 1001 39936 08/03/22 14671 HERO ALLIANCE 6400 FARMERS MKT CHARA 0.00 350.00 1001 39937 08/03/22 11018 HOME DEPOT CREDIT SERVIC 6200 SUPPLIES-CEMENT 0.00 72.79 1001 39938 08/03/22 10153 J'S COMMUNICATIONS, INC 6120 COMPUTER REMOVAL 0.00 465.00 1001 39939 08/03/22 12076 KEY DESIGN LOCKSMITHING 6130 KEY REPLACEMENT FIRE 0.00 434.10 1001 39940 08/03/22 14485 KOFF & ASSOCIATES, INC. 6020 COMP STUDY JUL22 0.00 1,240.00 1001 39941 08/03/22 14559 M.E.D. ENTERPRISES INC. 2000 CONSULTINGSVC JULY 22 0.00 3,360.00 1001 39942 08/03/22 10203 MID VALLEY PACKAGING & S 6020 COPY PAPER CITY HALL 0.00 183.56 1001 39942 08/03/22 10203 MID VALLEY PACKAGING & S 6200 JANITORIAL SUPPLY PW 0.00 768.95 TOTAL CHECK 0.00 952.51
1001 39943 08/03/22 10885 NELSONS POWER CENTER 6200 SUPPLIES-PW 0.00 75.22 SUPERION PAGE NUMBER: 2
DATE: 08/11/2022 CITY OF FOWLER ACCTPA21
TIME: 14:30:32 CHECK REGISTER - DISBURSEMENT FUND
SELECTION CRITERIA: transact.check_no between '39926' and '39990' ACCOUNTING PERIOD: 2/23
FUND - 100 - GENERAL FUND
CASH ACCT CHECK NO ISSUE DT VENDOR NAME DEPT -----DESCRIPTION------ SALES TAX AMOUNT 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 2250 MANN/GOLD ST. 7/26/22 0.00 1.48 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 SUMMER&MOGNOLA 7/15/2 0.00 4.41 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 ST LTS BEAL 7/15/22 0.00 8.80 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 TSFR 3LTS 7/15/22 0.00 9.41 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 363 N TEMPER 7-28-22 0.00 9.94 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 LS1-F HWY LT 7/15/22 0.00 10.28 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 LS1-E WHY LT 7/15/22 0.00 11.90 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 127 S. 6TH 7-28-22 0.00 13.79 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 8TH/VINE 7/15/22 0.00 13.94 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 ADAMS/DEEAN 7/15/22 0.00 14.28 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 429 E MERCED 7/24/22 0.00 14.28 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 LS1-A WHY LT 7/15/22 0.00 18.69 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 TR50907/15/22 0.00 21.02 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 2250 300 MERCED 7-28-22 0.00 28.59 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6130 220 E MAIN 7/24/22 0.00 28.65 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 LS2-A HWY LT 7/15/22 0.00 30.82 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 TEMP/PARL 7/15/22 0.00 30.82 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 2250 MAN/GLDST 7-28-22 0.00 42.02 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 LS1-F HWY LT 7/15/22 0.00 44.78 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 LS2-A WHY LT 7/15/22 0.00 46.09 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 TR5041 7/15/22 0.00 80.96 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 3079 E. MANN 7/21/22 0.00 86.96 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 T5088 7/15/22 0.00 100.21 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 2250 GODST/MAN SIG 7-28-22 0.00 105.77 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 2250 MERCED/8TH 7-28-22 0.00 138.54 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 GLDST/VLY DR 7-15-22 0.00 144.19 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 CLAYTON/ARMST 7/15/22 0.00 182.18 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 LS1-C HWY LT 7/15/22 0.00 294.03 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 630 W. FRESNO 7/21/22 0.00 341.68 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 LS1-F HWY LT 7/15/22 0.00 368.25 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6150 122 S 5TH #A 7-28-22 0.00 482.37 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 5000 325 S 5TH 7-28-22 0.00 623.51 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 LS2-A HWY LT 7/15/22 0.00 692.45 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 LS1-A 7/15/22 0.00 703.79 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 2250 700 MERCED #A 7-28-22 0.00 742.83 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 LSI-E HWY LT 7/15/22 0.00 1,013.25 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6200 LS2-A WHY LT 7/15/22 0.00 1,053.08 1001 39944 08/03/22 10237 P G & E - SACRAMENTO 6130 220 E MAIN 7/24/22 0.00 1,524.08 TOTAL CHECK 0.00 9,082.12
1001 39945 08/03/22 14672 PRETZER FARMS & SERVICES 5000 SAFETY TRAINING 0.00 750.00 1001 39945 08/03/22 14672 PRETZER FARMS & SERVICES 6200 SAFETY TRAINING 0.00 750.00 TOTAL CHECK 0.00 1,500.00
1001 39946 08/03/22 10249 QUILL 6030 NOTARIZE FLAG TAB 0.00 8.71 1001 39946 08/03/22 10249 QUILL 6150 COPY STAMP 0.00 12.63 1001 39946 08/03/22 10249 QUILL 6150 COPY STAMP 0.00 14.48 1001 39946 08/03/22 10249 QUILL 6030 COPY STAMP 0.00 35.28 1001 39946 08/03/22 10249 QUILL 6020 PENS/FIRST AID 0.00 75.34 TOTAL CHECK 0.00 146.44
1001 39947 08/03/22 13354 QUINN CAT 6200 SERVICE PW 0.00 1,739.70 SUPERION PAGE NUMBER: 3
DATE: 08/11/2022 CITY OF FOWLER ACCTPA21
TIME: 14:30:32 CHECK REGISTER - DISBURSEMENT FUND
SELECTION CRITERIA: transact.check_no between '39926' and '39990' ACCOUNTING PERIOD: 2/23
FUND - 100 - GENERAL FUND
CASH ACCT CHECK NO ISSUE DT VENDOR NAME DEPT -----DESCRIPTION------ SALES TAX AMOUNT 1001 39948 08/03/22 11195 ROBERT V JENSEN INC 6130 FUEL ENGINE 0.00 148.79 1001 39948 08/03/22 11195 ROBERT V JENSEN INC 5000 FUEL PW 0.00 205.27 TOTAL CHECK 0.00 354.06
1001 39949 08/03/22 13355 SITE ONE LANDSCAPE SUPPL 6260 SERVICE PARKS 0.00 125.00 1001 39950 08/03/22 13543 UNIFIRST CORPORATION 6700 JANITORIAL SNR CTR 0.00 48.21 1001 39950 08/03/22 13543 UNIFIRST CORPORATION 6020 MATS/MOPS ADMIN 0.00 62.10 1001 39950 08/03/22 13543 UNIFIRST CORPORATION 6130 MATS/MOPS 0.00 72.09 1001 39950 08/03/22 13543 UNIFIRST CORPORATION 6200 UNIFORMS PW 0.00 238.89 1001 39950 08/03/22 13543 UNIFIRST CORPORATION 6200 UNIFORMS PW 0.00 238.89 1001 39950 08/03/22 13543 UNIFIRST CORPORATION 6200 UNIFORMS PW 0.00 256.74 TOTAL CHECK 0.00 916.92
1001 39951 08/03/22 10725 VERIZON WIRELESS 6160 CELL PHONE 7/19/22 0.00 41.42 1001 39951 08/03/22 10725 VERIZON WIRELESS 6160 CELL PHONE 7/19/22 0.00 50.69 1001 39951 08/03/22 10725 VERIZON WIRELESS 6020 CELL PHONE 7/19/22 0.00 51.42 1001 39951 08/03/22 10725 VERIZON WIRELESS 6030 CELL PHONE 7/19/22 0.00 51.42 1001 39951 08/03/22 10725 VERIZON WIRELESS 6150 CELL PHONE 7/19/22 0.00 51.42 1001 39951 08/03/22 10725 VERIZON WIRELESS 6120 CELL PHONE PD 0.00 523.59 TOTAL CHECK 0.00 769.96
1001 39952 08/03/22 14359 WILLIAM AVERY & ASSOC., 6120 RECRUIT-CHIEF 0.00 437.50 1001 39953 08/10/22 14670 ANDERSON PUMP CO 5000 PUMP TEST TEMPERANCE 0.00 250.00 1001 39954 08/10/22 11084 BARCO PRODUCTS 6260 PANZAK PARK TABLE 0.00 1,769.60 1001 39955 08/10/22 10087 DEPARTMENT OF TRANSPORTA 6200 2022 APR-JUNE 0.00 292.30 1001 39956 08/10/22 10122 FRESNO COUNTY FIRE PROTE 6130 DISPATCH1/1-6/30/2022 0.00 2,878.45 1001 39957 08/10/22 14271 MID VALLEY PUMP TESTING 5000 WELL TEST 4/18/22 0.00 1,000.00 1001 39958 08/10/22 13354 QUINN CAT 6200 REPAIR TRACTOR 80 0.00 3,376.82 1001 39959 08/10/22 10995 ADT SECURITY SERVICES 6700 SECURITY AUG-OCT 22 0.00 177.27 1001 39960 08/10/22 10007 ALERT-O-LITE, INC 6200 SUPPLIES PW 0.00 30.18 1001 39960 08/10/22 10007 ALERT-O-LITE, INC 6200 SUPPLIES PW 0.00 501.50 1001 39960 08/10/22 10007 ALERT-O-LITE, INC 6200 SUPPLIES PW 0.00 910.08 TOTAL CHECK 0.00 1,441.76
1001 39961 08/10/22 11291 THE BUSINESS JOURNAL 6150 PUB NOT. ORD 2022-04 0.00 110.00 1001 39961 08/10/22 11291 THE BUSINESS JOURNAL 6150 PUB NOTICE - CC 0.00 357.50 1001 39961 08/10/22 11291 THE BUSINESS JOURNAL 6150 PUB NOTICE-PC 0.00 385.00 1001 39961 08/10/22 11291 THE BUSINESS JOURNAL 6080 PUB NOT RES. 2574 0.00 728.75 TOTAL CHECK 0.00 1,581.25
1001 39962 08/10/22 14512 CSG CONSULTANTS 6160 BO SERVICES 0.00 160.00 1001 39962 08/10/22 14512 CSG CONSULTANTS 6160 PLAN CHECK 0.00 345.00 SUPERION PAGE NUMBER: 4
DATE: 08/11/2022 CITY OF FOWLER ACCTPA21
TIME: 14:30:32 CHECK REGISTER - DISBURSEMENT FUND
SELECTION CRITERIA: transact.check_no between '39926' and '39990' ACCOUNTING PERIOD: 2/23
FUND - 100 - GENERAL FUND
CASH ACCT CHECK NO ISSUE DT VENDOR NAME DEPT -----DESCRIPTION------ SALES TAX AMOUNT 1001 39962 08/10/22 14512 CSG CONSULTANTS 6160 PLAN CHECK 0.00 1,380.00 TOTAL CHECK 0.00 1,885.00
1001 39963 08/10/22 14677 DANNY MENDOZA 6400 BAND 8/17/22 0.00 600.00 1001 39964 08/10/22 13275 FERGUSON WATERWORKS #142 5000 12-R900-WTR 0.00 4,897.26 1001 39965 08/10/22 10104 FPOA 100 EMP DED PAYROL 7/15 0.00 175.00 1001 39965 08/10/22 10104 FPOA 100 EMP DED PAYROLL 7/31 0.00 175.00 TOTAL CHECK 0.00 350.00
1001 39966 08/10/22 10122 FRESNO COUNTY FIRE PROTE 2000 50% PMT FIRE SVC AGMT 0.00 200,000.00 1001 39967 08/10/22 14156 FRESNO ECONOMIC OPPORTUN 6700 JULY 22 SR. MEALS 0.00 1,576.49 1001 39968 08/10/22 11116 GRAINGER 5000 BATTERY PACK-WTR 0.00 132.73 1001 39969 08/10/22 10149 ICMA-RC 457 PLAN 303879 100 EMP DED 7/15/22 0.00 40.00 1001 39969 08/10/22 10149 ICMA-RC 457 PLAN 303879 100 EMP DED 07/31/22 0.00 40.00 TOTAL CHECK 0.00 80.00
1001 39970 08/10/22 14485 KOFF & ASSOCIATES, INC. 6020 CLASS & COMP STUDY 0.00 1,240.00 1001 39970 V 08/10/22 14485 KOFF & ASSOCIATES, INC. 6020 CLASS & COMP STUDY 0.00 -1,240.00 TOTAL CHECK 0.00 0.00
1001 39971 08/10/22 14008 KUCKENBECKER TRACTOR CO 6200 SHORT PAY JUL22 0.00 1.50 1001 39972 08/10/22 14269 LOUIE'S PORTABLE WELDING 5000 WELDING-WELL #4 0.00 450.00 1001 39973 08/10/22 10201 METRO UNIFORM & ACCESSOR 6120 PD UNIFORM-MACIAS 0.00 65.33 1001 39973 08/10/22 10201 METRO UNIFORM & ACCESSOR 6120 CSO UNIFORMS ESCALANT 0.00 223.28 TOTAL CHECK 0.00 288.61
1001 39974 08/10/22 14428 NAVIA BENEFIT SOLUTIONS 6020 COBRA-JUL22 0.00 36.45 1001 39975 08/10/22 10215 NELSON HARDWARE & GIFTS 5000 SUPPLIES WATER 0.00 9.95 1001 39975 08/10/22 10215 NELSON HARDWARE & GIFTS 6700 SUPPLIES SNRCTR 0.00 16.26 1001 39975 08/10/22 10215 NELSON HARDWARE & GIFTS 6200 SUPPLIES-PW 0.00 22.31 1001 39975 08/10/22 10215 NELSON HARDWARE & GIFTS 5000 SUPPLIES WATER 0.00 31.44 TOTAL CHECK 0.00 79.96
1001 39976 08/10/22 10237 P G & E - SACRAMENTO 5000 WELL SITE 8 7/29/22 0.00 7,824.44 1001 39977 08/10/22 14513 PAC-AIR INC. 6700 SERVICE SNR CNTR 0.00 1,571.94 1001 39977 08/10/22 14513 PAC-AIR INC. 5000 SERVICE WELL #8 0.00 2,314.53 TOTAL CHECK 0.00 3,886.47
1001 39978 08/10/22 12384 PITNEY BOWES GLOBAL FINA 6020 LEASE 5/28-8/27 0.00 340.98 1001 39979 08/10/22 10694 POPSIE'S 6700 SENIOR LUNCH POPSIES 0.00 240.00 1001 39980 08/10/22 13354 QUINN CAT 6200 MASSEY FERG REPAIR 0.00 10,581.61 SUPERION PAGE NUMBER: 5
DATE: 08/11/2022 CITY OF FOWLER ACCTPA21
TIME: 14:30:32 CHECK REGISTER - DISBURSEMENT FUND
SELECTION CRITERIA: transact.check_no between '39926' and '39990' ACCOUNTING PERIOD: 2/23
FUND - 100 - GENERAL FUND
CASH ACCT CHECK NO ISSUE DT VENDOR NAME DEPT -----DESCRIPTION------ SALES TAX AMOUNT 1001 39981 08/10/22 11195 ROBERT V JENSEN INC 6200 FUEL-TRUCK 0.00 150.00 1001 39982 08/10/22 14676 RUBEN SAUCEDA 6400 BAND 8/10/22 0.00 700.00 1001 39982 08/10/22 14676 RUBEN SAUCEDA 6400 BAND 8/10/22 0.00 700.00 1001 39982 V 08/10/22 14676 RUBEN SAUCEDA 6400 BAND 8/10/22 0.00 -700.00 1001 39982 V 08/10/22 14676 RUBEN SAUCEDA 6400 BAND 8/10/22 0.00 -700.00 TOTAL CHECK 0.00 0.00
1001 39983 08/10/22 10518 SIGNMAX! 6200 SIGN/DECAL DOG SIGN 0.00 158.20 1001 39984 08/10/22 10288 SMART & FINAL 6700 SUPPLIES/SC 0.00 151.12 1001 39984 08/10/22 10288 SMART & FINAL 6700 SUPPLIES S/C 0.00 164.50 TOTAL CHECK 0.00 315.62
1001 39985 08/10/22 12791 THE MOWERS EDGE 6260 SUPPLIES-PARKS 0.00 307.50 1001 39986 08/10/22 10327 UNDERGROUND SERVICE ALER 5000 MEMBERSHIP DUES 22 0.00 605.14 1001 39987 08/10/22 13543 UNIFIRST CORPORATION 6700 JANITORIAL/SC 0.00 48.21 1001 39987 08/10/22 13543 UNIFIRST CORPORATION 6700 JANITORIAL/SC 0.00 48.21 1001 39987 08/10/22 13543 UNIFIRST CORPORATION 6200 UNIFORMS PW 0.00 238.89 1001 39987 08/10/22 13543 UNIFIRST CORPORATION 6200 UNIFORMS PW 0.00 238.89 TOTAL CHECK 0.00 574.20
1001 39988 08/10/22 13999 WONDERWARE 5000 AGREEMENT NOV22 0.00 1,890.00 1001 39990 08/10/22 14676 RUBEN SAUCEDA 6400 BAND 08/10/22 0.00 700.00 TOTAL CASH ACCOUNT 0.00 295,170.98
TOTAL FUND 0.00 295,170.98
SUPERION PAGE NUMBER: 6
DATE: 08/11/2022 CITY OF FOWLER ACCTPA21
TIME: 14:30:32 CHECK REGISTER - DISBURSEMENT FUND
SELECTION CRITERIA: transact.check_no between '39926' and '39990' ACCOUNTING PERIOD: 2/23
FUND - 201 - DISTRICT SALES TAX
CASH ACCT CHECK NO ISSUE DT VENDOR NAME DEPT -----DESCRIPTION------ SALES TAX AMOUNT 1001 39989 08/10/22 10122 FRESNO COUNTY FIRE PROTE 2010 50% PMT FIRE SVC AGMT 0.00 137,500.00 TOTAL CASH ACCOUNT 0.00 137,500.00
TOTAL FUND 0.00 137,500.00
TOTAL REPORT 0.00 432,670.98
MINUTES OF THE JOINT SPECIAL MEETING OF THE FOWLER CITY COUNCIL
AND CITY OF FOWLER PLANNING COMMISSION MEETING
SPECIAL MEETING
Tuesday, August 2, 2022
Mayor Pro-Tem Rodriquez called the meeting to order at 6:00 p.m.
Councilmembers Present: Rodriquez, Kazarian, Mejia
Councilmembers Absent: Parra
Planning Commissioners Present: Hammer, Kandarian, Prado, Rodriguez Planning Commissioners Absent: Mellon
City Staff Present: City Manager Tucker, City Attorney Cross, Community Development Director Gaffery, City Planner Marple,
Deputy City Clerk Vasquez
3. GENERAL ADMINISTRATION
3-A. Planning
i. WORKSHOP on the Multi-Jurisdictional Housing Element No action. Staff provided this informational item.
4. ADJOURNMENT
Having no further business, the meeting adjourned at 6:30 p.m. 6-B
1 MINUTES OF THE FOWLER CITY COUNCIL MEETING
Tuesday, August 2, 2022
Mayor Pro-Tem Rodriquez called the meeting to order at 7:00 p.m.
Councilmembers Present: Rodriquez, Kazarian, Mejia, Parra City Staff Present: City Manager Tucker, City Attorney Cross, Police Chief Reid, Public Works Director Dominguez, Community Development Director Gaffery, City Planner Marple, City Engineer Peters, Finance Director Moreno, Deputy City Clerk Vasquez
Councilmember Parra made a motion to remove Item 5-Ei from the agenda, seconded by Councilmember Mejia. The motion carried by roll call vote: Ayes: Parra, Mejia, Kazarian, Rodriquez.
5. GENERAL ADMINISTRATION
5-A. City Manager’s Office
i. Actions pertaining to the appointment of Michael S. Reid as Chief of Police
1) APPROVE Resolution No. 2580 adopting the salary
classification schedule for all employees
Councilmember Parra made a motion to APPROVE
Resolution No. 2580 adopting the salary classification
schedule for all employees, seconded by Councilmember
Mejia. The motion carried by roll call vote: Ayes: Parra, Mejia, Rodriquez; Noes: Kazarian
2) APPROVE a Chief of Police Employment Agreement with
Michael S. Reid
Councilmember Parra made a motion to APPROVE a
Chief of Police Employment Agreement with Michael S.
Reid, seconded by Councilmember Mejia. The motion
carried by roll call vote: Ayes: Parra, Mejia, Rodriquez; Noes: Kazarian
5-B. Finance
i. ACCEPT the Independent Auditor’s Report for the Fiscal Year 2019-2020
6-C
2 Councilmember Kazarian made a motion to ACCEPT the
Independent Auditor’s Report for the Fiscal Year 2019-2020, seconded by Councilmember Parra. The motion carried by roll call vote: Ayes: Kazarian, Parra, Mejia, Rodriquez
ii. Actions pertaining to Coronavirus State and local Fiscal Recovery funds under the American Rescue Act of 2021
1) APPROVE Resolution No. 2581 amending the 2022-2023
Adopted Budget to reflect Coronavirus State and Local
Fiscal Recovery funds received under the American Rescue Plan Act (ARPA) in the amount of $812,156 and allocate
those funds for various expenditures.
Councilmember Mejia made a motion to APPROVE
Resolution No. 2581 amending the 2022-2023 Adopted
Budget to reflect Coronavirus State and Local Fiscal
Recovery funds received under the American Rescue Plan
Act (ARPA) in the amount of $812,156 and allocate those funds for various expenditures, seconded by
Councilmember Parra. The motion carried by roll call vote:
Ayes: Mejia, Parra, Kazarian, Rodriguez
2) APPROVE Resolution No. 2582 authorizing an additional one-time premium of $3,000 payment to eligible city
employees performing essential work, who have been and
continue to be relied upon to maintain continuity of city operations.
Councilmember Mejia made a motion to APPROVE
Resolution No. 2582 authorizing an additional one-time
premium of $3,000 payment to eligible city employees
performing essential work, who have been and continue to be relied upon to maintain continuity of city operations seconded by Councilmember Parra. The motion carried by
roll call vote: Ayes: Mejia, Parra, Kazarian, Rodriquez 5-C. Planning
i. INTRODUCTION of Ordinance amending Title 4, Chapter 4, Article 2 of the Fowler Municipal Code regarding the parking of vehicles, towing of parked vehicles, and parking citations; and the repeal of Title 4, Chapter 4, Article 5 regarding trains 3 Councilmember Kazarian made a motion to Approve
INTRODUCTION of Ordinance amending Title 4, Chapter 4,
Article 2 of the Fowler Municipal Code regarding the parking of vehicles, towing of parked vehicles, and parking citations; and the repeal of Title 4, Chapter 4, Article 5 regarding trains, seconded by Mejia. The motion carried by roll call vote: Ayes: Kazarian, Mejia, Parra, Rodriquez
ii. Actions Pertaining to Planning Case Number 22-0028 the introduction of an Ordinance repealing Chapter 3, of Title 9 (“Setback Law”) of the Fowler Municipal Code, to consolidate the clarify the City’s zoning standards.
1) ADOPT a Categorical Exemption pursuant to California Environmental Quality Act (CEQA) Guidelines Section 15061, subdivision (b)(3)
Councilmember Parra made a motion to ADOPT a Categorical Exemption pursuant to California Environmental Quality Act (CEQA) Guidelines Section 15061, subdivision (b)(3), seconded by Councilmember Mejia. The motion carried by roll call vote: Ayes:
Parra, Mejia, Kazarian, Rodriquez
2) INTRODUCTION of Ordinance No. 2022-06, repealing Chapter 3, of Title 9 of the Fowler Municipal Code to consolidate and clarify setback standards
Councilmember Parra made a motion to Approve
INTRODUCTION of Ordinance No. 2022-06, repealing Chapter 3, of Title 9 of the Fowler Municipal Code to consolidate and clarify setback standards, seconded by Councilmember Mejia. The motion carried by roll call vote: Ayes: Parra, Mejia, Kazarian, Rodriquez
iii. Actions pertaining to Planning Case Number 22-027 the introduction of an Ordinance amending Section 9-5.1605, of Chapter 5, of Title 9 of the Fowler Municipal Code regarding the development standards and the reimbursement for open space. 1) ADOPT a Categorical Exemption pursuant to California Environmental Quality Act (CEQA) Guidelines Section 15061, subdivision (b)(3)
Councilmember Mejia made a motion to ADOPT a Categorical Exemption pursuant to California Environmental Quality Act 4 (CEQA) Guidelines Section 15061, subdivision (b)(3), seconded by Councilmember Kazarian. The motion carried by roll call vote:
Ayes: Mejia, Kazarian, Parra, Rodriquez
2) INTRODUCTION of Ordinance No. 2022-07 Amending Section 9-
5.1605, of Chapter 5, of Title 9 of the Fowler Municipal Code Councilmember Mejia made a motion to Approve
INTRODUCTION of Ordinance No. 2022-07 Amending Section 9-
5.1605, of Chapter 5, of Title 9 of the Fowler Municipal Code, seconded by Councilmember Kazarian. The motion carried by roll call vote: Ayes: Mejia, Kazarian, Parra, Rodriquez
5-D. Public Works
i. Actions pertaining to collection of annual levy for the City’s Landscape and Storm Drainage Facilities Maintenance District No. 1
Councilmember Parra made a motion to APPROVE Resolution No. 2583, a Resolution Confirming the Diagram and Assessment of the Annual Levy for Fiscal Year 2022-23 for Landscaping and Storm Drainage Facilities Maintenance District No. 1, seconded by Councilmember Mejia. The motion carried by roll call vote: Ayes:
Parra, Mejia, Kazarian, Rodriquez
5-E. City Council
i. APPROVE Resolution No. 2578, a Resolution of the City Council of the City of Fowler calling for and giving notice of the holding of a Special Municipal Election to be consolidated with the regularly scheduled general municipal election to be held on November 8, 2022, to present to voters a measure to adopt an ordinance enacting a 0.275% special transactions and use tax increase; requesting consolidation thereof with the statewide general election to be held on the same date; requesting that the Fresno County Board of Supervisors authorize the Fresno County Clerk to render specified services to the City of Fowler relating to the conduct of the Special Municipal Election; and approving the proposed ballot measure description.
This item was removed from the agenda.
5 ii. WORKSHOP regarding potential funding opportunities for volunteer firefighter’s training
City Attorney Cross will provide an update at the next council meeting.
6. PUBLIC COMMENT
No members of the public spoke.
7. CONSENT CALENDAR
Councilmember Parra made a motion to approve the consent calendar, seconded by Councilmember Mejia. The motion carried by roll call vote: Ayes: Parra, Mejia, Kazarian, Rodriquez
8. CONTESTED CONSENT CALENDAR
N/A
9. STAFF COMMUNICATIONS (CITY MANAGER)
• Updates were provided by City Manager Tucker, Public Works Director Dominguez, Community Development Director Gaffery, and Finance Director Moreno.
10. COUNCILMEMBER REPORTS AND COMMENTS
N/A
11. ADJOURNMENT
Having no further business, the meeting adjourned at 9:05 p.m.
CITY COUNCIL OF THE CITY OF FOWLER
ITEM NO: 6-D
REPORT TO THE CITY COUNCIL
August 16, 2022
FROM SCOTT CROSS, City Attorney
SUBJECT
APPROVE Resolution No. 2588, A Resolution of the City Council of the City of Fowler Authorizing Continued Use of Remote Teleconferencing for City Council Meetings and Commission Meetings During Declared Stare of Emergency in Accordance with Government Code Section 54953 as amended by AB 361
RECOMMENDATION
Approve Resolution No. 2581 if the City Council makes the findings required by Government Code Section 54953(e)(3) to continue to allow City Council members to attend City Council meetings via remote teleconferencing without following typical Brown Act requirements for teleconference participation by City Council members at City Council meetings. The Resolution also authorizes the City’s other commissions to continue meeting remotely for as long as the City Council authorizes.
BACKGROUND
The City Council approved Resolution No. 2522 on October 19, 2021, authorizing remote teleconferencing for City Council and City commission meetings in accordance with Government Code Section 54953 as amended by AB 361 during the COVID-19 declared emergency. To continue with the “relaxed” remote teleconferencing for City Council and other commission meetings Government Code Section 54953 requires the City Council to make findings every 30 days that (1) it has reconsidered the circumstances of the state of emergency, and either (a) the state of emergency continues to directly impact the ability of the members to meet safely in person, or (b) state or local officials continue to impose or recommend measures to promote social distancing.
APPROVE Resolution No. 2588
August 16, 2022
Fowler City Council meetings are currently conducted in a manner that allows the public and Council members to attend in person or via teleconference in compliance with applicable legal requirements.
Approving this resolution would not change the way members of the public are allowed to participate in meetings (both in-person and teleconference attendance is allowed) and would also allow City Council members to continue to attend meetings via teleconference, if desired, without complying with the typical Brown Act requirements for teleconferencing attendance at City Council meetings.
The proclaimed COVID-19 emergency is still in effect and there may be occasions when the proclaimed emergency directly impacts the ability of members of the public or Council members to meet safely in person. Also, some state and local officials continue to recommend measures to promote social distancing. As a result, the necessary findings can be made, if desired, to continue with remote teleconferencing for City Council and other commission meetings. These findings must be made every 30 days to continue with the relaxed Brown Act teleconference requirements.
ENVIRONMENTAL REVIEW
This action does not constitute a “project” pursuant to the California Environmental Quality Act.
FISCAL IMPACT
No fiscal impact is anticipated whether this Resolution is approved or not.
CONFLICT OF INTEREST
Staff is not aware of any conflicts of interest.
Attachments
- Resolution No. 2588
RESOLUTION NO. 2588
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FOWLER
AUTHORIZING CONTINUED USE OF REMOTE TELECONFERENCING FOR CITY
COUNCIL MEETINGS AND COMMISSION MEETINGS DURING DECLARED
STATE OF EMERGENCY IN ACCORANCE WITH GOVENRMENT CODE SECTION 54953 AS AMENDED BY AB 361
WHEREAS, on March 4, 2020, the Governor of California declared a state of emergency in the State as a result of the COVID-19 pandemic; and
WHEREAS, pursuant to Resolution 2461, approved by the Fowler City Council on March 17, 2020, the City Council declared a local emergency as a result of the threatened spread of COVID-19 in the City, surrounding areas, and the state; and WHEREAS, on March 17, 2020, with the issuance of Executive Order N-29-20, the Governor suspended certain provisions of the Ralph M. Brown Act in order to allow local legislative bodies to conduct meetings telephonically or by other remote means; and WHEREAS, on June 11, 2021, the Governor issued Executive Order N-08-21, which placed an end date of September 30, 2021, for agencies to meet remotely; and WHEREAS, AB 361 was enacted on September 16, 2021, enacting certain changes to the Brown Act for teleconferencing and remote participation at public meetings as set forth in Government Code Section 54953; and
WHEREAS, the state of emergency proclaimed by the Governor on March 4, 2020, has not been rescinded and remains in effect; and
WHEREAS, the City Council has determined that teleconferencing from remote locations by the public and City Council members has not limited participation of members of the public, Council members, or other attendees at City Council or other City commission meetings; and WHEREAS, on October 19, 2021, the City Council approved Resolution No. 2522 authorizing remote teleconferencing for City Council and City commission meetings in accordance with Government Code Section 54953 as amended by AB 361; and WHEREAS, Government Code Section 54953, as amended by AB 361, requires the City Council to make certain findings every 30 days after approving Resolution No. 2522 in order to continue with remote teleconferencing.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Fowler as follows:
1. The City Council has reconsidered the circumstances of the COVID-19 state of emergency and finds that the following circumstances exist:
A. The state of emergency continues to directly impact the ability of members of the public, City Council members, and members of other City commissions to meet safely in person; and
B. State or local officials continue to recommend measures to promote social distancing.
2. This Resolution shall be effective immediately and a similar resolution shall be a standing item on City Council meeting agendas each month to reconsider the circumstances of the COVID19 state of emergency and determine whether the state of emergency continues to directly impact the ability of members of the public, City Council members, and members of other City commissions to meet safely in person, or whether state or local officials continue to impose or recommend measures to promote social distancing, until the necessary findings required for continuing remote teleconferencing are no longer approved by the City Council.
PASSED, APPROVED AND ADOPTED this 16th day of August 2022, at a meeting of the Fowler City Council by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
APPROVED:
___________________________
Mark Rodriquez, Mayor Pro-Tem
ATTEST:
____________________________
Angela Vasquez, Deputy City Clerk
CITY COUNCIL OF THE CITY OF FOWLER
ITEM NO: 6-E
REPORT TO THE CITY COUNCIL
August 16, 2022
FROM ANGELA VASQUEZ, Deputy City Clerk
SUBJECT
Actions pertaining to electronic building entry access control system 1) AUTHORIZE the City Manager to negotiate and execute an agreement with Hoffman Electronic Systems for the purchase and installation of an electronic building entry access control system for City Hall in the amount of $29,995
2) APPROVE Resolution No. 2589 amending the 2022-2023 Adopted Budget in the amount of $4,995
RECOMMENDATION
Staff recommend the City Council approve the above proposed actions.
BACKGROUND
It is unknown the last time City Hall exterior doors were re-keyed and there are no consistent records of key issuance to City staff or others.
This system will improve security and minimize risk by implementing electronic access to the perimeter doors of City Hall. The system will allow electronic management of access control and audit records of building access. This project will also include the replacement of door strikes and related hardware.
Staff evaluated solutions from various vendors. Based on best value and references, Hoffman Security was selected, consistent with the provisions of the City’s Purchasing Policy.
Electronic Building Entry Access Control System for City Hall August 16, 2022
Since introduction of this item during the American Rescue Plans Act (ARPA) funding request on August 2, 2022, staff identified three additional locations where electronic access controls are needed.
This additional scope increases the contract amount by $4,995 and is reflected in the proposed budget amendment.
ENVIRONMENTAL REVIEW
This action does not constitute a “project” pursuant to the California Environmental Quality Act.
FISCAL IMPACT
Council Resolution No. 2581, adopted on August 2, 2022, allocated $25,000 in ARPA funds. The proposed Resolution No. 2589 would authorize an additional $4,995 in ARPA funds for this project.
CONFLICT OF INTEREST
Staff is not aware of any conflicts of interest.
Attachments
- Scope of Work
- Resolution No. 2589
PROPOSAL
Proposal Submitted to: City of Fowler Job Name: Access Control System Address: 128 S. 5th St, Fowler, CA 93625 Job Location: 128 S. 5th St, Fowler, CA 93625 Phone: (559) 834-3113 Architect:
Submission Date: 8/10/22 Date of Plans:
[def:$tag11|text|req|signer1|Hoffman|Hoffman Security||170|25] [def:$tag12|date|req|signer1|Date Signed|date_signed||130|25] [def:$tag13|sig|req|signer1|Hoffman|Officer_sig||170|35] [def:$tag21|text|req|signer2|Customer Name|Customer_Name|City of Fowler|170|25] [def:$tag22|date|req|signer2|Date Signed|date_signed||130|25] [def:$tag23|sig|req|signer2|Customer Signature|Cust_sig||170|35] [def:$tag33|sig|req|signer3|Sales Agent|Sales_sig||170|35] Parts List:
1 EA Labor 11 EA Card Reader
1 EA XR550 Panel w/Network Module, Transformer, battery 7 EA Flush-Mount Door Strikes 1 EA Access Keypad 3 EA Electric Surface Door Strike
2 EA Power Supply 12V,24V, + 2 batteries, Xformer 20 EA Access Card 2 EA Battery 1 EA Conduit & Fittings
11 EA Access Control Module
Hoffman proposes to install 11 doors of access control at City of Fowler Headquarters. Ten of the doors will have door strike hardware and card readers installed, one interior door already has a door strike. Exterior doors with deadbolts will require City to install standard locking doorknobs to work properly with new flush-mount door strikes. User Management will be done through Virtual Keypad Access using a standard web browser or smartphone app, utilizing the network connection to the panel. Proposal is calculated at prevailing-wage labor rates. Access Control App for User Maintenance is $65 per month. Full Service, covering all normal wear and tear on equipment and labor cost, and including Access Control App, is optional at a total of $125 per month.
We propose hereby to furnish material and labor - complete in accordance with above specifications for the sum of:
Twenty-Nine Thousand Nine Hundred Ninety-Five Dollars and No Cents ........................... $29,995.00 Access Control App for User Maintenance: $65.00 per month (Based on a three-year agreement) Full Service, covering all normal wear and tear on equipment and labor cost, and including App, is optional at $125.00 per month All material is guaranteed to be as specified. All work is to be completed in a workmanlike manner according to standard practices. Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders and will become an extra charge over and above the estimate. All agreements are contingent upon strikes, accidents, or delays beyond our control. Owner is to carry fire, tornado, and other necessary insurance. Our workers are fully covered by Workman's Compensation Insurance. [$tag13] [$tag33]
Approved
By __________________________________________ By David Hoffman Not valid unless signed by an officer of Sales Agent
Hoffman Electronic Systems
[$tag12]
Date ________________________________________
This Agreement shall not be binding upon Hoffman unless approved by an officer of Hoffman This proposal may be withdrawn by us if not accepted within 20 days ACCEPTANCE OF PROPOSAL - The above prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment will be made as outlined above.
[$tag21]
By: ___________________________________
Type or Print
[$tag23]
[$tag22]
Authorized
Date of Acceptance ___________________ __________________________________ Subscriber
RESOLUTION NO. 2589
A RESOLUTION OF THE COUNCIL OF THE CITY OF FOWLER
APPROVING AND ADOPTING THE BUDGET AMENDMENT FOR THE AMERICAN RESCUE PLAN ACT (ARPA) FUND FOR FISCAL YEAR 2022/2023
WHEREAS, the FY 2022/2023 Annual Budget reflects the City of Fowler’s ongoing commitment to providing core services; and
WHEREAS, the FY 2022/2023 Annual Budget was approved by the City Council on June 7, 2022, by Resolution 2563, and any subsequent amendments must be approved by Resolution; and
WHEREAS, the budget amendment request attached hereto specifies the details of the proposed ARPA Fund budget amendment.
NOW, THEREFORE, BE IT RESOLVED, the Fowler City Council hereby resolves that the FY 2022/2023 budget be amended to reflect ARPA Fund appropriations as described in the attachment hereto.
PASSED, APPROVED AND ADOPTED this 16th day of August 2022, at a regular meeting of the Fowler City Council by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
APPROVED:
___________________________
Mark Rodriquez, Mayor Pro-Tem
ATTEST:
____________________________
Angela Vasquez, Deputy City Clerk
Requested by: Margarita Moreno Budget Amounts
Account Numbers: Fund Name Description Increase Decrease Revenues:
Appropriations:
212.5710 City Hall electronic access control system $ 4,995 Reason(s) for Budget Amendment:
To align the expenses and revenues for of FY 2022/2023 budget, staff is requesting a budget amendment to the following funds:
• To appropriate additional ARPA funding for the purchase and installation of an electronic building entry access control system for City Hall.
Department Director ________________________________ Date __________________ Approval Required Budget Amendment:
Finance Director __________________________ Date __________________ Signature
City Manager ___________________________________ Date __________________ Signature
City Council: Approved Resolution #_______ Denied Date _______________
REQUEST FOR BUDGET AMENDMENT
Resolution No. 2589
CITY COUNCIL OF THE CITY OF FOWLER
ITEM NO: 6-F
REPORT TO THE CITY COUNCIL
August 16, 2022
FROM MARGARITA MORENO, Finance Director
SUBJECT
APPROVE a professional services agreement with Price Paige & Company in the amount of $55,000 for year-end closing and audit support services for fiscal year 2021-22.
RECOMMENDATION
Staff recommend the City Council approve a professional services agreement with Price Paige & Company in the amount of $55,000 for year-end closing and audit support services for fiscal year 2021-
22. BACKGROUND
The City has previously engaged Price Paige & Company for fiscal years 2018-19, 2019-20 and 2020- 21 year-end closing and audit support services. Staff recommend continuing this engagement for fiscal year 2021-22, which ended on June 30, 2022. The engagement will include preparation of the 2021-22 financial statements, GASB 87 implementation, special reporting for water, Calpers reporting, employee benefits, assistance in the annual reporting of financial transactions, and serving as liaison with the City’s external auditor. This engagement will ensure the audit is completed in a timely manner.
ENVIRONMENTAL REVIEW
This action does not constitute a “project” pursuant to the California Environmental Quality Act.
Approve a professional services agreement with Price Paige & Company August 16, 2022
FISCAL IMPACT
On August 2, 2022, City Council approved Resolution No. 2581 appropriating funds for this agreement.
CONFLICT OF INTEREST
Staff is not aware of any conflicts of interest.
Attachments
- Agreement
CITY OF FOWLER
ACCOUNTING CONSULTANT SERVICE AGREEMENT
This Accounting Consultant Services Agreement ("Agreement") is entered into between the City of Fowler, a California general law city ("City") and Price Paige & Company ("Consultant") with respect to the following recitals, which are a substantive part of this Agreement. This Agreement shall be effective on August 16, 2022 ("Effective Date").
RECITALS
A. City desires to obtain non-audit accounting consultation services ("Services") more fully described in the proposal from Consultant attached as Exhibit A, which is incorporated herein by reference.
B. Consultant is engaged in the business of furnishing the Services and hereby warrants and represents that Consultant is qualified, experienced, and capable of performing the Services, and possesses any required licenses, certifications, security/bonding, and/or training necessary to perform the Services.
C. City desires to retain Consultant, and Consultant desires to provide the City with the Services, on the terms and conditions as set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual agreements herein, City and Consultant agree as follows:
AGREEMENT
I. Scope of Services. Consultant shall perform the Services described in the Recitals and detailed in Exhibit A. Changes in the scope of Services, including the work performed and/or deliverables produced, shall be made in writing and particularly describe the changes in Services, including payment/costs and schedule/term, as applicable.
2. Priority and Conflicts; Exclusions. If the terms and requirements of this Agreement conflict with Exhibit A, this Agreement shall control. No contractual terms and/or conditions found in Exhibit A shall purport to waive, disclaim, or limit Consultant's liability, indemnification obligations, warranties, damages for breach or delay, or any security, bonding, or insurance requirements, and any such provisions shall have no force or effect with respect to this Agreement and the Services performed by Consultant.
3. Term of Agreement; Commencement of Services; Schedule. Consultant shall begin performing the Services upon notice from the City on or after the Effective Date, unless otherwise instructed by City, and continue with the Services until satisfactorily completed, as determined by City. Consultant shall complete the Services not later than June 30, 2023 ("Completion Date"), unless extended beyond this date by mutual consent of the Parties. This Agreement may be terminated prior to the Completion Date pursuant to Section 17 herein. City and Consultant shall mutually agree on a schedule for performance of the Services and completion of any deliverables. The schedule shall be subject to modification based on the City's operational needs. City will notify Consultant in advance of any modification to the schedule.
4. Payment for Services. City shall pay Consultant for the Services performed pursuant to this Agreement according to Consultant's standard hourly rate(s). The total amount paid by City to Consultant for the Services shall not exceed Fifty Five Thousand Dollars ($55,000).
The foregoing is inclusive of all labor, equipment, materials, costs and expenses, taxes, and overhead. City shall pay Consultant for Services satisfactorily performed pursuant to this Agreement. Consultant shall 2 submit monthly invoices to City containing detailed billing information regarding the Services provided and unless otherwise specified in Exhibit A, City shall tender payment to Consultant within thirty (30) days after receipt of invoice.
5. Independent Contractor Status. Consultant and its subcontractors, if any, shall perform the Services as independent contractors and not as officers, employees, agents or volunteers of City. Consultant is engaged in an independently established trade, occupation, or business to perform the Services required by this Agreement and is hereby retained to perform work that is outside the usual course of City's business.
Consultant is free from the control and direction of City in connection with the manner of performance of the work. Nothing contained in this Agreement shall be deemed to create any contractual relationship between City and Consultant's employees or subcontractors, nor shall anything contained in this Agreement be deemed to give any third party, including but not limited to Consultant's employees or subcontractors, any claim or right of action against City.
6. Consultant Representations; Standard of Care; Compliance with Law. Consultant represents that Consultant and any subcontractors utilized by Consultant are and will be qualified in the field for which Services are being provided under this Agreement and Consultant and any subcontractors are now, and will be throughout their performance of the Services under this Agreement, properly licensed, certified, secured/bonded, trained, and/or otherwise qualified and authorized to perform the Services required and contemplated by this Agreement, as may be required by law. Consultant and its subcontractors shall utilize the standard of care and skill customarily exercised by members of their profession, shall use reasonable diligence and best judgment while performing the Services, and shall comply with all applicable laws, regulations, and industry standards, including without limitation applicable law for properly safeguarding any financial data and information obtained from City necessary to perform the Services.
7. [Reserved]
8. Subcontractor Provisions. Consultant shall include in its written agreements with its subcontractors, if any, provisions which: (a) impose upon the subcontractors the obligation to provide to City the same insurance and indemnity obligations that Consultant owes to City; (b) make clear that City intends to rely upon the reports, opinions, conclusions and other work product prepared and performed by subcontractors for Consultant; and (c) entitle City to impose upon subcontractors the assignment rights found elsewhere in this Agreement.
9. Power to Act on Behalf of City. Consultant is not acting as an agent of City and shall not have any right, power, or authority to create any obligation, express or implied, or make representations on behalf of City except as may be expressly authorized in advance in writing from time to time by City and then only to the extent of such authorization.
I0. Record Keeping; Reports. Consultant shall keep complete records showing the type of Services performed. Consultant shall be responsible and shall require its subcontractors to keep similar records. City shall be given reasonable access to the records of Consultant and its subcontractors for inspection and audit purposes. Consultant shall provide City with a working draft of all reports upon reasonable request by City and of all final reports prepared by Consultant under this Agreement.
11. Ownership and Inspection of Documents. All data, tests, reports, analyses, documents, records, conclusions, opinions, recommendations and other work product generated by or produced for Consultant or its subcontractors in connection with the Services, regardless of the medium, including physical drawings and materials recorded on computer discs or other electronic devices ("Work Product"), shall be and remain the property of City. City shall have the right to use, copy, modify, and reuse the Work Product as it sees fit.
Upon City's request, Consultant shall make available for inspection and copying all such Work Product and 3 all Work Product shall be turned over to City promptly at City's request or upon termination of this Agreement, whichever occurs first. Consultant shall not release any Work Product to third parties without prior written approval of City. This obligation shall survive termination of this Agreement and shall survive for four (4) years from the date of expiration or termination of this Agreement.
12. Confidentiality. All Work Product prepared and performed by and on behalf of Consultant in connection with the Services performed pursuant to this Agreement shall be kept confidential and shall be disclosed only to City, unless otherwise provided by law or expressly authorized by City. Consultant shall not disclose or permit the disclosure of any confidential information acquired during performance of the Services, except to its agents, employees and subcontractors who need such confidential information in order to properly perform their duties relative to this Agreement. Consultant shall also require its subcontractors to be bound to these confidentiality provisions.
13. [Reserved]
14. Conflicts of Interest. Consultant warrants that neither Consultant nor any of its employees have an improper interest, present or contemplated, in the Services which would affect Consultant's or its employees' performance of the Services and the Work Product produced. Consultant further warrants that neither Consultant nor any of its employees have real property, business interests or income that will be affected by the Services. Consultant covenants that no person having any such interest, whether an employee or subcontractor shall perform the Services under this Agreement. During the performance of the Services, Consultant shall not employ or retain the services of any person who is employed by the City or a member of any City Board or Commission.
15. Non-liability of Officers and Employees. No officer or employee of City shall be personally liable to Consultant, or any successors in interest, in the event of a default or breach by City for any amount which may become due Consultant or its successor, or for any breach of any obligation under the terms of this Agreement.
16. [Reserved]
17. Termination of Agreement. This Agreement shall terminate as provided in Section 3, unless terminated earlier pursuant to the following:
a. Termination by City: For Convenience. City may at its discretion terminate this Agreement for convenience and without cause upon ten (IO) days prior written notice to Consultant. Upon receipt of a termination notice pursuant to this subsection, Consultant shall promptly discontinue all Services affected, unless the notice directs otherwise.
b. Termination by City or Consultant: For Cause. Either party may terminate this Agreement upon ten (I 0) days prior written notice to the other party of a material breach, and a failure within that time period to cure or commence reasonable steps to cure the breach. c. Compensation to Consultant Upon Termination. Consultant shall be paid compensation for Services satisfactorily performed prior to service of the written notice of termination. As to any phase partially performed but for which the applicable portion of Consultant's compensation has not become due, Consultant shall be paid the reasonable value of its Services provided. However, in no event shall such payment when added to any other payment due under the applicable part of the work exceed the total compensation of such part as specified Section 4. In the event of termination due to Consultant's failure to perform in accordance with the terms of this Agreement through no fault of City, City may withhold an amount that would otherwise be payable as an offset to City's damages caused by such failure. 4 d. Effect of Termination. Upon termination of this Agreement, Consultant shall: (i) promptly discontinue all Services affected, unless the notice of termination directs otherwise; and (ii) deliver or otherwise make available to the City, without additional compensation, all Work Product and/or deliverables accumulated by the Consultant in performing this Agreement, whether completed or in process. Consultant may not refuse to provide such Work Product for any reason whatsoever.
18. Insurance. Consultant shall satisfy the insurance requirements set forth in Exhibit B.
19. Indemnity and Defense. Consultant hereby agrees to indemnify, defend and hold the City, its officials, officers, employees, agents, and volunteers harmless from and against all claims, demands, causes of action, actions, damages, losses, expenses, and other liabilities, (including without limitation reasonable attorney fees and costs of litigation) of every nature arising out of or in connection with the alleged or actual acts, errors, omissions or negligence of Consultant or its subcontractors relating to the performance of Services and the safeguarding of any financial data and information obtained from City necessary to perform the Services described herein to the fullest extent permitted by law, unless the injuries or damages are the result of City's sole negligence or willful misconduct, subject to any limitations imposed by law. Consultant and City agree that said indemnity and defense obligations shall survive the expiration or termination of this Agreement for any items specified herein that arose or occurred during the term of this Agreement.
20. Taxes. Consultant agrees to pay all taxes, licenses, and fees levied or assessed by any governmental agency on Consultant incident to the performance of Services under this Agreement, and unemployment and workers' compensation insurance, social security, or any other taxes upon the wages of Consultant, its employees, agents, and representatives. Consultant agrees to obtain and renew an annual business license from City and pay the applicable business license fee to City during the term of this Agreement.
21. Assignment. Neither this Agreement nor any duties or obligations hereunder shall be assignable by Consultant without the prior written consent of City. In the event of an assignment to which City has consented, the assignee shall agree in writing to personally assume and perform the covenants, obligations, and agreements herein contained. In addition, Consultant shall not assign the payment of any monies due Consultant from City under the terms of this Agreement to any other individual, corporation or entity. City retains the right to pay any and all monies due Consultant directly to Consultant.
22. Form and Service of Notices. Any and all notices or other communications required or permitted by this Agreement or by law to be delivered to, served upon, or given to either party to this Agreement by the other party shall be in writing and shall be deemed properly delivered, served or given by one of the following methods:
a.
delivery.
Personally delivered to the party to whom it is directed. Service shall be deemed the date of b. Delivered by e-mail to a known address of the party to whom it is directed provided theemail is accompanied by an acknowledgment of receipt by the other party. Service shall be deemed the date of acknowledgement.
c. Delivery by a reliable overnight delivery service, ex., Federal Express, receipted, addressed to the addressees set forth below the signatories to this Agreement. Service shall be deemed the date of delivery.
d. Delivery by deposit in the United States mail, first class, postage prepaid. Service shall be deemed delivered seventy-two (72) hours after deposit.
5 23. Entire Agreement. This Agreement, including the Exhibits and any other attachments, represents the entire Agreement between City and Consultant and supersedes all prior negotiations, representations or agreements, either written or oral with respect to the subject matter herein. This Agreement may be amended only by written instrument signed by both City and Consultant.
24. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
25. [Reserved]
26. Severability. In the event any term or provision of this Agreement is declared to be invalid or illegal for any reason, this Agreement will remain in full force and effect and will be interpreted as though such invalid or illegal provision were not a part of this Agreement. The remaining provisions will be construed to preserve the intent and purpose of this Agreement and the parties will negotiate in good faith to modify any invalidated provisions to preserve each party's anticipated benefits.
27. Applicable Law and Interpretation and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. The language of all parts of this Agreement shall, in all cases, be construed as a whole, according to its fair meaning, and not strictly for or against either party. This Agreement is entered into by City and Consultant in the County of Fresno, California. Consultant shall perform the Services required under this Agreement in the County of Fresno, California.
28. Amendments and Waiver. This Agreement shall not be modified or amended in any way, and no provision shall be waived, except in writing signed by the parties hereto. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. Failure of either party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement.
29. Third Party Beneficiaries. Nothing in this Agreement shall be construed to confer any rights upon any party not a signatory to this Agreement.
30. Execution in Counterparts. This Agreement may be executed in counterparts such that the signatures may appear on separate signature pages. A copy or an original, with all signatures appended together, shall be deemed a fully executed Agreement.
31. Alternative Dispute Resolution. If a dispute arises out of or relating to this Agreement, or the alleged breach thereof, and if said dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by non-binding mediation before resorting to litigation. The mediator shall be mutually selected by the parties, but in case of disagreement, the mediator shall be selected by lot from among two nominations provided by each party. All costs and fees required by the mediator shall be split equally by the parties, otherwise each party shall bear its own costs of mediation. If mediation fails to resolve the dispute within thirty (30) days, either party may pursue litigation to resolve the dispute.
Demand for mediation shall be in writing and delivered to the other party to this Agreement.
A demand for mediation shall be made within reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for mediation be made after the date when institution of legal or equitable proceedings based on such a claim, dispute or other matter in question would be barred by California statues of limitations.
32. Non-Discrimination. Consultant shall not discriminate based on any protected class under federal or State law in the provision of the Services or with respect to any Consultant employees or applicants for employment. Consultant shall ensure that any subcontractors are bound to this provision. A protected class includes, but is not necessarily limited to race, color, national origin, ancestry, religion, age, sex, sexual orientation, marital status, and disability.
Now, therefore, the City and Consultant have executed this Agreement on the date(s) set forth below.
CONSULTANT CITY OF FOWLER
By: By: _____________________
Fausto Hinojosa, Audit Partner Wilma Tucker, City Manager Date: ______________________ Date:___________________
Party Identification and Contact Information:
Consultant City of Fowler
Price Paige & Company Attn: Wilma Tucker
Attn: Fausto Hinojosa City Manager
Audit Partner 128 S 5th Street
570 N. Magnolia Fowler, CA 93625
Clovis, CA 93612 [email protected]
[email protected] (559)834-3113
559-299-9540
6 7
EXHIBIT A
CONSULTANT PROPOSAL
August 4, 2022
Ms. Wilma Tucker, City Manager
City of Fowler
128 S. 5th St.
Fowler, California 93625
Dear Ms. Quan:
This letter confirms the engagement of Price Paige & Company by the City of Fowler (the “City”) as of and for the year ended June 30, 2022.
The professional consulting services we currently expect to provide include the following:
1) We will assist the City in the year-end close of its financial records for the year ending June 30, 2022 by performing reconciliations of certain balance sheet and income statement balances, as listed on the attached schedule, Exhibit A.
2) We will prepare the City’s financial statements for the year ending June 30, 2022. 3) We will serve as a liaison with the City’s external auditors for any inquiries directly related to certain balance sheet and income statement balances, as listed on the attached schedule for the year ending June 30, 2022.
4) We will provide the City with additional consultation as agreed-upon with City management. The scope, timing and extent of the additional consultation will be discussed prior to the commencement of any work.
5) We will prepare the annual reports of financial transactions for the City for the year ended June 30, 2022.
All workpapers or other documents used by us during this engagement will be maintained in segregated files, and such originals and all copies will be returned to you upon the completion of our engagement.
You agree to oversee all nonaudit services as they relate to Measure C and Transportation Development Act activity and account balances by designating an individual, preferably from senior management, with suitable skill, knowledge, or experience; evaluate the adequacy and results of those services; and accept responsibility for them. These nonaudit services do not constitute an audit under Government Auditing Standards and such services will not be conducted in accordance with Government Auditing Standards.
We will perform the services in accordance with applicable professional standards. We, in our sole August 4, 2022
professional judgment, reserve the right to refuse to perform any procedure or take any action that could be construed as assuming management responsibilities.
Electronic Data Communication and Storage and Use of Third-Party Service Provider In the interest of facilitating our services to the City, we may communicate by facsimile transmission, send data over the Internet, store electronic data via computer software applications hosted remotely on the Internet, or allow access to data through third-party vendors’ secured portals or clouds. Electronic data that is confidential to the City may be transmitted or stored using these methods. We may use third-party service providers to store or transmit this data, such as providers of tax return preparation and document management software. In using these data communication and storage methods, our firm employs measures designed to maintain data security. We use reasonable efforts to keep such communications and data access secure in accordance with our obligations under applicable laws and professional standards. We also require all of our third-party vendors to do the same.
You recognize and accept that we have no control over the unauthorized interception or breach of any communications or data once it has been sent or has been subject to unauthorized access, notwithstanding all reasonable security measures employed by us or our third-party vendors, and consent to our use of these electronic devices and applications and submission of confidential client information to third-party service providers during this engagement.
With regard to the electronic dissemination of audited financial statements, including financial statements published electronically on your website, you understand that electronic sites are a means to distribute information and, therefore, we are not required to read the information contained in these sites or to consider the consistency of other information in the electronic site with the original document.
Engagement Administration, Fees and Other
We will schedule the engagement based in part on deadlines, working conditions, and the availability of your key personnel. We will plan the engagement based on the assumption that your personnel will cooperate and provide assistance by performing tasks such as preparing requested schedules, retrieving supporting documents, and preparing confirmations. If, for whatever reason, your personnel are unavailable to provide the necessary assistance in a timely manner, it may substantially increase the work we have to do to complete the engagement within the established deadlines, resulting in an increase in fees over our original fee estimate.
It is our policy to keep records related to this engagement for a minimum of seven years after the report release date.
Our fees for the above services for the year ending June 30, 2022 will be as follows:
Consulting Services, as listed in items 1-3 $ 35,500
Additional Consulting, as listed in item 4 (hourly, not to exceed) 15,000 City’s Financial Transaction Report, as listed in item 5 __ 4,500
Total $55,000
Our fees are based on expected hours required to perform the service at our standard hourly rates. Our standard hourly rates vary according to the degree of responsibility involved and the experience level of the personnel assigned to your consulting engagement. Our billing rates are reviewed annually and, where appropriate, adjusted for any increases due to inflation and other factors. We will issue a monthly billing statement for the work completed in that month. Payments for services are due when rendered and interim billings may be submitted as work progresses and expenses are incurred. Our fee estimate is based on anticipated cooperation from your personnel and assumption that unexpected circumstances will not be encountered during the services listed in Exhibit A. If significant time is necessary, we will August 4, 2022
discuss it with you before we incur additional costs. The fees for these services will be billed at the hourly billing rate for the individual involved, plus out-of-pocket expenses.
If any dispute pertaining to our work product arises among the parties hereto, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Rules for Professional Accounting and Related Services Disputes before resorting to litigation.
The costs of any mediation proceeding shall be shared equally by all parties.
All work will be suspended if your account becomes 90 days past due. No work will be resumed until your account is fully paid. You acknowledge and agree that in the event we stop work or withdraw from this engagement as a result of your failure to pay on a timely basis for services rendered as required by this engagement letter, we shall not be liable for any damages that occur as a result of our ceasing to render services. Client and accountant both agree that any dispute over fees charged by the accountant to the client will be submitted for resolution by arbitration in accordance with the Rules for Professional Accounting and Related Services Disputes of the American Arbitration Association. Such arbitration shall be binding and final. IN AGREEING TO ARBITRATION, WE BOTH ACKNOWLEDGE THAT, IN THE
EVENT OF A DISPUTE OVER FEES CHARGED BY THE ACCOUNTANT, EACH OF US IS GIVING UP
THE RIGHT TO HAVE THE DISPUTE DECIDED IN A COURT OF LAW BEFORE A JUDGE OR JURY AND INSTEAD WE ARE ACCEPTING THE USE OF ARBITRATION FOR RESOLUTION.
If information becomes known that would make our continued involvement in this engagement inappropriate, or parties involved change, we reserve the right to withdraw from this engagement. In addition, we will refuse to perform any requested act that we deem a violation of law, public policy, or our professional ethical standards, and may, as a result, withdraw from the engagement without penalty.
In no event will our firm be liable for incidental or consequential damages resulting from our performance on this engagement, even if we have been advised of the possibility of such damages.
If these terms are in accordance with your understanding and meet with your approval, please return a signed copy via email or regular mail at your earliest convenience. This agreement will become effective when you return the signed copy to us.
If the need for additional services arises, our agreement with you will need to be revised. It is customary for us to describe these revisions in an addendum to this letter.
Sincerely,
Josh Giosa, CPA
Price Paige & Company
- - - - - - -
RESPONSE:
This letter correctly sets forth the understanding of the City of Fowler, California.
Management Signature Title Date
Exhibit A
We will assist the City in the year-end close of its financial records for the year ending June 30, 2022 by performing reconciliations of balance sheet and income statement balances for the following audit areas:
1) Cash and Investments
2) Enterprise Revenue/Receivables (Including Deposits and Prepays) 3) Capital Assets
4) Long-Term Debt and Bond Trustee Reconciliation
5) Net Pension Liability and related Deferred Inflows and Outflows of Resources 6) Grant Reconciliation and Schedule of Expenditure of Federal Awards 8 EXHIBIT B
INSURANCE REQUIREMENTS
Prior to commencement of the Services, Consultant shall take out and maintain at its own expense the insurance coverage required by this Exhibit B. Consultant shall cause any subcontractor with whom Consultant contracts for the performance of Services pursuant to this Agreement to take out and maintain equivalent insurance coverage. Said insurance shall be maintained at all times during Consultant's performance of Services under this Agreement, and for any additional period specified herein. All insurance shall be placed with insurance companies that are licensed and admitted to conduct business in the State of California and are rated at a minimum with an "A:VII" by A.M. Best Company, unless otherwise acceptable to the City.
a. Minimum Limits of Insurance. Consultant shall maintain the following types of insurance with limits no less than specified:
(i) Professional Liability Insurance (Errors and Omissions) in an amount not lessthan $1,000,000.00 per occurrence or claim and $1,000,000 in the aggregate. Said insurance shall be maintained for an additional period of five years following the earlier of completion of Consultant's Services under this Agreement or termination of this Agreement.
(ii) General Liability Insurance (including operations, products and completed operations coverages) in an amount not less than $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance or other forrn with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement or the general aggregate limit shall be twice the required occurrence limit.
(iii) Worker's Compensation Insurance as required by the State ofCalifornia. (iv) Automobile Liability Insurance in an amount not less than $1,000,000 per accident for bodily injury and property damage.
(v) Umbrella or Excess Liability. In the event Consultant purchases an Umbrella or Excess insurance policy(ies) to meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents and volunteers.
If Consultant maintains higher limits than the minimums shown above, the City shall be entitled to coverage at the higher limits maintained.
b. Other Insurance Provisions. The general liability policy is to contain, or be endorsed to contain, the following provisions:
(i) For any claims related to the Services performed pursuant to this Agreement, the Consultant's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute withit.
9 (ii) Each insurance policy required by this section shall be endorsed to state that the City shall receive written notice at least thirty (30) days prior to the cancellation, non-renewal, or material modification of the coverages required herein.
(iii) Consultant grants to the City a waiver of any right to subrogation which any insurer of said Consultant may acquire against the City by virtue of the payment of any loss under such insurance.
Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from theinsurer.
(iv) Any deductibles or self-insured retentions must be declared to and approved by the City of Fowler. The City may require the Consultant to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
c. Evidence of Coverage. Consultant shall deliver to City written evidence of the above insurance coverages, including the required endorsements prior to commencing Services under this Agreement; and the production of such written evidence shall be an express condition precedent, notwithstanding anything to the contrary in this Agreement, to Consultant's right to be paid any compensation under this Agreement. City's failure, at any time, to object to Consultant's failure to provide the specified insurance or written evidence thereof(either as to the type or amount of such insurance). shall not be deemed a waiver of City's right to insist upon such insurance later. d. Maintenance of Insurance. If Consultant fails to furnish and maintain the insurance required by this section, City may (but is not required to) purchase such insurance on behalf of Consultant, and the Consultant shall pay the cost thereof to City upon demand, and City shall furnish Consultant with any information needed to obtain such insurance. Moreover, at its discretion, City may pay for such insurance with funds otherwise due Consultant under this Agreement. e. Subcontractors. If the Consultant should subcontract all or any portion of the work to be performed in this Agreement, the Consultant shall cover the subcontractor, and/or require each subcontractor to adhere to all the requirements contained herein. Similarly, any cancellation, lapse, reduction or change of subcontractor's insurance shall have the same impact as described above. f. Special Risks or Circumstances. The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
g. Indemnity and Defense. Except as otherwise expressly provided, the insurance requirements in this section shall not in any way limit, in either scope or amount, the indemnity and defense obligations separately owed by Consultant to City under this Agreement.
CITY COUNCIL OF THE CITY OF FOWLER
ITEM NO: 6-G
REPORT TO THE CITY COUNCIL
August 16, 2022
FROM THOMAS W. GAFFERY IV, Community & Economic Development Director
SUBJECT
Actions pertaining to copier and printers
1. APPROVE an agreement with Xerox Financial Services LLC in the amount of $1,390.62 per month for 63 months for the lease of copiers and printers.
2. APPROVE an agreement with Image Source in an amount not to exceed $26,000 for 63 months for the service, supplies, and maintenance of copiers and printers, based on actual meter readings.
RECOMMENDATION
Staff recommend the City Council approve the above proposed actions.
BACKGROUND
The current printer and copier lease and service agreements with Xerox/Image Source were executed by the prior administration without City Council approval, even though the total cost of the Xerox lease alone was $67,367.
Staff learned this when researching the Xerox/Image Sources agreement to make modifications that would better suit the City’s business needs. Staff engaged with the City Attorney’s Office to determine if it were feasible to exit the existing agreements. Additionally, staff reviewed proposals with Xerox/Image Source and determined the best value would be to extend the current agreement with Approve agreements with Xerox Financial Services LLC and Image Source August 16, 2022
equipment modifications rather than make modifications without extending the term, or to attempt to exit the City from the existing contract.
The existing procurement does not meet the City’s needs in a number of ways:
• The City Hall copier does not meet the volume or feature needs of the workgroup. It cannot even staple documents.
• The Community Development copier cannot print in color, which is essential for printing maps, architectural plans, and other planning documents.
• The Senior Center copier is of a larger scale than necessary, but cannot print in color, which is essential for printing fliers and other event-related materials. • There is an unnecessary number of desktop printers, instead of shared printers, in City Hall.
The proposed agreement will result in two (2) new devices (City Hall & Senior Center), relocation of two (2) existing devices (City Hall to Community Development, and Community Development to Public Works), and the removal of five (5) devices (Senior Center, Public Works, and three (3) desktop printers in City Hall). This arrangement will result in the optimal allocation of copiers and printers to meet the City’s business needs.
ENVIRONMENTAL REVIEW
This action does not constitute a “project” pursuant to the California Environmental Quality Act.
FISCAL IMPACT
Staff estimate an additional monthly cost of approximately $385. If necessary, a mid-year budget adjustment will be brought forward for City Council consideration.
CONFLICT OF INTEREST
Staff is not aware of any conflicts of interest.
Attachments
- Proposed Agreement and Rider with Xerox Financial Services LLC (2022) - Proposed Agreement and Rider with Image Source (2022) - Agreement with Xerox Financial Services LLC (2019)
- Agreement with Image Source (2019)
- Comparison Spreadsheet
1 CITY OF FOWLER
EQUIPMENT LEASE RIDER
XEROX COPIER LEASE AGREEMENT
City of Fowler (“City”) and Xerox Financial Services, LLC (“Company”) have entered into that certain equipment lease entitled Lease Agreement (“Contract”) as of _______, [EFFECTIVE DATE]. This Equipment Lease Rider (“Rider”) supplements and amends the terms of the Contract, as set forth below.
1. GOVERNING LAW AND VENUE: The Contract shall be governed by and construed in accordance with the laws of the State of California. Venue shall be with the appropriate state or federal court located in Fresno County.
2. CHANGES: No change or modification in pricing, fees, or other charges may be made without express authorization in writing from City.
3. NON-APPROPRIATION. The City’s obligation to remit the Payments and any other amounts due is contingent upon approval of the appropriation of funds by the City’s governing body. In the event funds are not appropriated for any forthcoming fiscal period equal to amounts due under the Contract, and the City has no other funds legally available to be allocated to the payment of its obligations hereunder, the City may terminate the Contract effective on the first day of such forthcoming fiscal period (“Termination Date”) if: (a) the City has used due diligence to exhaust all funds legally available, and (b) the City has provided Company with written notice from at least 30 days before the Termination Date. At Company’s request, the City shall promptly provide supplemental documentation as to such nonappropriation. Upon the occurrence of such non-appropriation, the City shall not be obligated for any Payment for any forthcoming fiscal period for which funds have not been so appropriated, and the City shall promptly return the Equipment as set forth in the return provisions of the Contract.
4. CONFIDENTIAL INFORMATION; PUBLIC RECORD. The Contract, and this Rider will be presented to the City Council for approval and will be a public record, including its financial terms. The City will make any records public as required by the California Public Records Act. Anything that Company deems confidential or proprietary that would not customarily be considered as such must be particularly labeled as such. If City receives a request for a record that it believes is a public record, but Company has labeled as proprietary, City will notify Company of the request prior to release of the record and allow Company and opportunity to file a legal action to prevent the disclosure.
5. TERM; RENEWAL. The Contract will be for a term of 63-months. The City will provide notice of its intent to purchase or return the assets 30 days prior to the end of the initial 63-month contract. If the City has not performed one of the options identified in subsection (a) or (b) of Section 5 of the Contract, the Contract will renew for successive 1-month terms. Either party may terminate the Contract as of the end of any 1-month renewal term with 30 days prior 2 written notice, and by taking one of the actions identified in subsection (a) or (b) of Section 5 of the Contract.
6. COMPANY’S LIMITATIONS OF LIABILITY. Any exclusions of liability and limitations on damages in favor of Company shall not apply to personal injury, death, or physical property damage due to the gross negligence, intentional misconduct, or fraud of Company.
7. LIMITATIONS OF LIABILITY. But for Section 14 of the Contract, neither party shall be liable to the other for any indirect, special, exemplary, consequential, or punitive damages, or for lost revenue, loss of profits, savings, or other indirect or contingent event-based economic loss arising out of or in connection with the Contract.
8. LIQUIDATED DAMAGES. Subsection (a) in Section 14 of the Contract (Default and Remedies) is hereby amended to read as follows: “(a) as liquidated damages for loss of bargain and not as a penalty, pay the sum of (i) all amounts then past due, plus interest from the due date until paid at the rate in accordance with the laws of your State of formation covering state agencies and the applicable codes covering political subdivisions; (ii) the Payments remaining in the Term, discounted at the Discount Rate, (iii) the Equipment’s booked residual (if you do not return the Equipment as provided herein), and (iv) Taxes, if you are no longer tax-exempt; and (b) require you to return the Equipment as provided herein.”
9. CURE. In the event City defaults and subsequently cures said default, pursuant to Section 14 of the Contract, any equipment shall be returned to City and services by Company shall be reinstated, even if said cure occurs after the notice period.
10. RISK OF LOSS AND INSURANCE. The following sentence is hereby deleted from Section 15 of the Contract: “You hereby irrevocably appoint XFS as your attorney-in-fact to execute and endorse all checks or drafts in your name to collect under any such Required Insurance.”
IN WITNESS WHEREOF, the parties have, by their duly authorized representatives, executed this Rider, as of the day and year set forth below.
XEROX FINANCIAL SERVICES, LLC CITY OF FOWLER
By: ________________________ By: ____________________________ Name: ________________________ Name: ____________________________ Title: ________________________ Title: ____________________________ Date: ________________________ Date: ____________________________ J:\wdocs\00250\001\agt\00919855.DOCX
Cost Per Image Agreement
650 E Hospitality Lane, Suite 500 San Bernardino CA, 92408 CUSTOMER INSTALL Agreement No. Lessee PO#
(Optional)
Full Legal Name City of Fowler DBA
Address 128 S 5th Street City Fowler State CA ZIP 93625
CUSTOMER BILL TO
Name City of Fowler
Address 128 S 5th Street City Fowler State CA ZIP 93625 Phone 559-834-3113 Accounts Payable
Contact Margarita Moreno Accounts Payable Contact Email
[email protected]
Paperless .
Billing .. [ ] YES [ ] NO
Monthly Base Maintenance Payment = $ 100.00
Excess Per Image Charge stated in the below table
Model(s) B&W Monthly Allowance
included in Monthly Base
Black & White Rate Color Monthly Allowance
included in Monthly Base
Color Rate
Xerox Altalink C8035 0 $0.0079 0 $0.049
Xerox Primelink C9070 0 $0.0079 0 $0.049
Xerox Versalink C405 0 $0.0099 0 $0.990
Xerox Altalink C8055 0 $0.0079 0 $0.049
Xerox Versalink B7035 0 $0.0049 N/A N/A
Xerox Versalink B400 0 $0.0099 N/A N/A
Xerox Versalink B400 0 $0.0099 N/A N/A
DEFINITIONS: The words Customer, You and Your refer to customer indicated above. The words Company, We, Us and Our to Image Source.
SERVICES OFFERED: We agree to provide all consumables, along with device environment monitoring, auto toner replenishment, proactive service error monitoring, phone technical support, service, and quarterly environment reporting under this Cost Per Image Agreement. Further information on the Service Management details are stated on the back of this document. Covered equipment, along with Cost Per Image pricing, is listed in the table above, or separately in Schedule(s) A, and/or B.
IMAGE CHARGES: Payments are due monthly, beginning the date the Agreement is initiated (as noted by the Agreement date below) or any later date designated by Us and continuing on the same day of each following month until fully paid. You are entitled to make the total number of images reflected in the Monthly Image Allowance shown in the table above, or separately in Schedule(s) A, and/or B, each month (if consolidated), or the monthly amount Image Allowance Per Machine or Group (if not consolidated). If You use more than the applicable Allowance(s) in any month, You will pay Us an additional charge equal to the number of additional metered images multiplied by the applicable Excess Per Image Charge. If the meter reading required for periodic billing is not available, Company may bill for use based on an average volume for the most recent 3 months. You agree that We may proportionally increase Your Per Image Charges at any time if Our estimated average page coverage is exceeded in any month during the term of this Agreement. Each print that is larger than 145 square inches, but less than or equal to 19.3 inches in length, may register as two (2) prints on the applicable (B&W/color) meter. For Primelink Equipment with extralong print capability, for any impressions greater than 19.3 inches and less than or equal to 26 inches will register as three (3) prints on the applicable (B&W/color) meter. For AltaLink Equipment with extra-long print capability, for any impressions greater than 19.3 inches will register as four (4) on the applicable (B&W/color) meter. In addition to the foregoing, You agree that effective on each/any anniversary of this Agreement, We may annually increase both the Minimum Monthly Payment and the Excess Per Image Charge by amounts determined at our discretion. You agree to comply with billing and meter collection procedures designated by Us, including notifying Us of the meter reading on the billing date. If meters are not received, We reserve the right to estimate Your usage for the billing period. Invoice credit memos shall be automatically applied to the oldest unpaid invoice.
GOVERNING LAW, CONSENT TO JURISDICTION AND VENUE OF LITIGATION: This Agreement and each addendum shall be governed by the laws of the State of California. You agree that any dispute arising under or related to this agreement will be adjudicated in the federal or state court located in San Bernardino. You hereby consent to personal jurisdiction and venue in that court and waive any right to transfer venue. Each party waives any right to a trial by jury.
LATE FEES: If any amount payable to Us is not paid when due, You will pay Us a late charge equal to 1) a rate of 1.5% per month of balance overdue or 2) a minimum of $5 per month.
The Customer will also pay collection costs and reasonable attorney’s fees should the account be placed for collection.
AGREEMENT PERIOD: This agreement is for a period of 63 months from the date the Agreement is initiated, and is non-cancelable. In addition to any other rights under this contract, Company may terminate this contract at any time by giving the Customer 30 day prior written notice. Unless notified in writing no greater than 90 days and no less than 30 days prior to the contract expiration date, this agreement shall renew for 12-month periods.
THIS AGREEMENT IS SUBJECT TO THE TERMS AND CONDITIONS PRINTED ON THIS PAGE, THE REVERSE SIDE, AND, IF APPLICABLE, ATTACHED SCHEDULE(S) A AND/OR B, ALL OF WHICH PERTAIN TO THIS AGREEMENT AND WHICH YOU ACKNOWLEDGE HAVING READ. THIS AGREEMENT IS NOT BINDING UNTIL ACCEPTED BY US. YOU CERTIFY ALL ACTIONS REQUIRED TO AUTHORIZE EXECUTION OF THIS AGREEMENT, INCLUDING YOUR AUTHORITY, HAVE BEEN FULFILLED.
IMAGE SOURCE: (As Stated Above) CUSTOMER: (As Stated Above) Signature Signature
Print Name & Title Date Accepted Print Name & Title Date
650 E Hospitality Lane, Suite 500
San Bernardino, CA 92408
I. MAINTENANCE AND SUPPLIES.
A. Cost Per Image Charges. The charges stated in the Agreement include charges for maintenance (from 8 a.m. to 5 p.m. local time, except weekends and holidays (“Regular Service Hours”), inspection, adjustment, parts replacement, cleaning material required for proper operation, and toner and developer for such Equipment and may also include charges for such maintenance and supplies provided to You for the Equipment. Paper and staples are not included in this maintenance agreement. You must purchase staples separately, from Us. Supplies required in excess of manufactures suggested yield will be invoiced separately. Specialty toner and dry inks excluded from consumable supplies. Consumable supplies exclude any toners and dry inks (and their associated developers) other than standard cyan, magenta, yellow, and black. Specialty toner and dry inks (and their associated developers) must be purchased separately from Us. We may charge a fulfillment fee to cover simple network monitoring protocol which enables supply auto replenishment and delivery.
B. Equipment Eligible for Coverage. This only applies to the Equipment identified in the table on page one, or separately in Schedule(s) A, and/or B. You represent and warrant that, other than as set forth in the table on page one, or separately in Schedule(s) A, and/or B, there is no other equipment located at Your site(s) capable of using Our supplied toner and ink consumables. All Equipment capable of using Our supplied toner and ink consumables must be included in this Agreement. To the best of Your knowledge, there are no equipment conditions that do not meet manufacturer’s specifications (“Pre-Existing Conditions”), other than those specifically identified in the table on page one, or separately in Schedule(s) A and/ or B. You agree that We shall have the right to inspect and verify any Equipment covered by this Agreement which was previously owned by You. We reserve the right, at Our sole discretion, to exclude from this agreement any Equipment that We determine to have material faults, and/or to be unfit for service. If applicable, We may discount the Monthly Base Maintenance Payment by the amount reasonably allocated to any excluded Equipment.
C. Definition of Services Provided. We agree (a) to perform only those repairs involving worn Equipment components that have failed during ordinary use of the Equipment under normal operating conditions (trays, covers and other non-consumable parts are not covered), and (b) to supply You with all toner and ink consumables required to operate the Equipment. Requests for services outside of Regular Service Hours will be provided on a best effort basis at Our prevailing time and material hourly rate. Such charges for services outside of Regular Service Hours are in addition to the prepaid Minimum Monthly Payment. This Agreement does not cover after-hours service, shop overhauls, and service made necessary by accident, fire, water, natural disasters, or failure by You to meet the manufacturer's electrical requirements.
D. Access to Equipment. We shall have the right to access Your site and any other of Your premises that may house Equipment upon reasonable notice for access with Your supervision during regular work hours. We reserve the right to invoice You at Our prevailing time and material hourly rate, separate from the Minimum Monthly Payment, when access to the Equipment is denied for greater than fifteen (15) minutes, when You initiated the request for service. We shall apply an estimated monthly page volume to any and all Equipment that cannot be accessed for page count recording purposes.
E. Authorized Maintenance Providers. We, at Our discretion, may authorize Our approved maintenance subcontractors or approved service providers to perform maintenance and repairs to the Equipment. In cases where We manage Your third party service agreement on Your behalf, then all sums currently due under that agreement must be paid in full before We will assume any obligation or responsibility.
F. Repair Responsibility. Maintenance services excludes repairs due to: (a) misuse, neglect or abuse; (b) failure of the installation site or the PC or workstation used with the Equipment to comply with manufacturer’s published specifications; (c) use of options, accessories or products not serviced by Us; (d) non-Image Source alterations, relocation, service or supplies; or (e) failure to perform operator maintenance procedures identified in operator manuals, or (f) failure by You to meet the manufacturer's electrical requirements. Equipment may not be moved to another physical address without Our prior written consent, which shall not be unreasonably withheld or delayed. You agree that you will not take the Equipment out of service during the Term.
G. Analyst Services. You agree to pay Us periodic charges for Analyst Services. We shall discontinue billing or debiting Analyst Services upon receipt of a written request to discontinue Analyst Services support for Equipment. Upon cancellation, You agree to bear the entire cost of Analyst Services related to the Equipment covered by this Agreement. Includes dark web monitoring service and a cybersecurity review and evaluation. Upon completion a cybersecurity executive summary and scorecard will be provided.
H. IT Help Desk Support. You agree to pay Us periodic charges for IT Help Desk Support. The IT Help Desk Support shall include up to 3 help desk support calls per year, and additional support may be available upon request. We shall discontinue billing or debiting IT Help Desk Services upon receipt of a written request.
I. Data Security. Certain Equipment can be configured to include a variety of data security features. There may be an additional cost associated with certain data security features. The selection, suitability and use of data security features are solely Your responsibility. Upon request, We will provide additional information to You regarding the security features available for particular Equipment.
J. Cloud-based Apps. The Equipment supported under this Agreement may include Cloud-based Apps. The Cloud-based Apps may be fee based, paid-for services with service fees deducted from the credits that were included in the initial lease or purchase, for each page processed. You agree that in order to maintain uninterrupted services, if You consume all of the credits purchased, We shall invoice you for additional credits equal to the original amount of purchased credits. The Cloud-based Apps may be, fee based, paid-for services with either monthly or annual service fees, depending on the plan You selected. You agree that in order to maintain uninterrupted services, if Your paid-for services expire, We shall invoice you for an additional time period equal to the original time period purchased or leased.
K. Ownership and Control of Toner and Ink Consumables. All toner and ink consumables supplies provided under this Agreement shall at all times remain the property of Us. You may use the toner and ink consumables pursuant to the terms of this Agreement, but You shall not have any ownership rights in or to the toner or ink consumables. You shall not be charged for any toner or ink consumables in use upon the expiration of this Agreement. The ordering of consumables significantly in excess of the number of copies or prints produced may be charged to You by Us.
L. Additional Equipment and Right of Inspection. 1. You shall notify Us promptly upon installing any additional equipment (“Additional Equipment”) at Your site capable of using Our supplied toner and ink consumables. Additional Equipment installed subsequent to the date of this Agreement will be evaluated by Us, and included in, or excluded from, this Agreement at the sole discretion of Us.
2. Additional Equipment deemed included in the Agreement by Us shall be added to this Agreement and will automatically be covered by and considered Equipment under the terms of this Agreement. Billings or surcharges for Additional Equipment output will be reflected in the billing cycle immediately following the billing cycle in which the Additional Equipment is installed. If You add Additional Equipment, both the Minimum Monthly Payment and the Cost Per Images may be adjusted accordingly, at Our sole discretion. 3. If any such Additional Equipment is used equipment, You represent and warrant to Us that, except for Pre-Existing Conditions duly disclosed to Us prior to such Additional Equipment being covered by this Agreement, all of the Additional Equipment shall, on the date such coverage commences, be in good working order. We shall be entitled to take a physical inventory of the Additional Equipment, upon or prior to its being covered by this Agreement, to determine whether they are in working order. In the event, as of the date coverage commences under this Agreement, any Additional Equipment is not in good working order, You shall have such Additional Equipment repaired at Your sole expense and, until such Additional Equipment is so repaired, any Additional Equipment with Pre-Existing Conditions shall not be covered under this Agreement. An initial meter reading of zero (0) is agreed, unless You provide timely information to the contrary, for any Additional Equipment that meets the conditions of I.1 M. Access. You hereby grant to Us the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access Your computer network stations(s) for the purpose of enabling Us to service the Equipment.
N. Liability Limitations. This paragraph limits the liabilities arising under this Agreement, and is a bargained-for and material part of this Agreement. In no event shall We be liable to You for any indirect, special, exemplary, consequential or punitive damages, or for lost revenue, loss of profits, savings, or other indirect or contingent event-based economic loss arising out of or in connection with this Agreement, or for any loss or interruption of data, technology or services, or for any breach hereof or for any damages caused by any delay in furnishing services offered under this Agreement, even if a party has been advised of the possibility of such damages. Our aggregate liability to You for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, "Claims"), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Your actual and direct damages, not to exceed the amount of fees paid by You to Us for the specific services offered upon which the applicable claim(s) is/are based during the six (6) month period immediately prior to the date on which the cause of action accrued.
O. YourOfficeSupplySource.com. If you receive a credit from Image Source it will be available on the date the equipment is installed and will automatically expire on the first anniversary of the installation date. The credit may only be used for the purchase of supplies.
II. WARRANTY. Notwithstanding anything in this Agreement to the contrary, We warrant (a) that all personnel performing services hereunder by or on behalf of Us will have appropriate training and experience and (b) all equipment is in accordance with industry standards, and all supplies and materials are of good quality. Without limiting the generality of the foregoing (and without limiting any obligation of Us to make repairs under this Agreement), You expressly agree and acknowledge that in no event shall any manufacturer’s warranty, including but not limited to any implied warranty of merchantability, and fitness for a particular purpose, be deemed given by or otherwise transferred or applied to Us. If You notify Us within ninety (90) days from performance of the services that the services or a part thereof fails to conform to the standards specified herein, Your sole and exclusive remedy is that We shall promptly repair, replace, or re-perform the non-conforming services.
III. MONITORING SOFTWARE. A. You grant Permission to Install and Maintain Software. We license software (“Monitoring Software”) that enables Us to monitor the usage of, and the copy count produced on, the Equipment. You agree that We shall have the right, at any time during the term of this Agreement, to install the Monitoring Software on one or more of Your computer networked station(s). You agree to provide Us, during normal business hours, access to Your computer-networked station(s) to enable Us to upgrade, modify or maintain the Monitoring Software or to install new releases or additions to the Monitoring Software. Under no circumstances will the Monitoring Software provide Us access to Your information other than information directly related to this Agreement. You agree to not delete or remove the Monitoring Software or to alter, modify or otherwise render it unusable during the term of this Agreement without the prior written consent of Us. If You disagree, then We retain the right to invoice You the prevailing hourly billable rate for labor required to obtain meter readings, per meter reading cycle.
B. No License, other Prohibitions. Nothing herein shall be construed as granting a license to You for the use of the Monitoring Software. You may not, nor may You permit or cause any other person to (a) use or copy the Monitoring Software, in whole or in part, in any manner, (b) modify, translate, reverse engineer, decompile or dissemble the Monitoring Software, (c) rent, lease, loan, resell, distribute, use in a customer-server network to provide third parties access to, or otherwise transfer the Monitoring Software, or (d) remove any proprietary notices on the Monitoring Software.
C. Intellectual Property Rights. All rights (including all intellectual property rights, whether recognized currently or in the future) in and to the Monitoring Software (including any source code, executable code, object code, tools and/or libraries related to the Monitoring Software) will at all times be owned by Us. No modifications and/or use by You of the Monitoring Software shall under any circumstances transfer any right, title or interest in or to the Monitoring Software to You or any third party.
D. Monitoring Software Warranty, Liability. You acknowledge that the Monitoring Software will be installed on Your networked workstation(s) “as is” without warranty of any kind, either express or implied, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement. We do not warrant that the Monitoring Software will be error free or will operate without interruption. We shall in no event be liable to You or any third party for any special, consequential, incidental or indirect damages in connection with the Monitoring Software. If the software is found to cause issues on Your network, and these issues can be reasonably associated to the installation of the software through uniform software testing and tracing methodologies, Our liability will be limited to the removal of said Monitoring Software from Your environment.
IV. MISCELLANEOUS.
A. Software. Performance issues related to Software and/or connectivity are not covered under the terms of this Agreement. Any warranties related to Software will be those offered by the manufacturer and will be passed directly to the user.
B. Software/Hardware. Connectivity and performance issues related to Software and non-standard hardware are not covered under the terms of this Agreement. Any warranties related to these solutions, which include but are not be limited to: Xerox ConnectKey Applications, PaperCut, XMedius Fax, Umango, Square9, Ysoft, Nuance, Formax, NeoPost, or Xerox FreeFlow, any computers and scanners, will be those offered by the manufacturer and passed directly to the user. Operation and configuration of the Software will be the responsibility of You after initial install and operation test is completed by Us.
Customer Initial Page 2 of 2 v3.24.22
Xerox Financial Services LLC
201 Merritt 7
Norwalk, CT 06851
Supplier Name: IMAGE SOURCE
Lease Agreement
Supplier Address:
owner: XEROX FINANCIAL SERVICES LLC ~ 201 Merritt 7, Norwalk, er 06851 Equipment Location (if different from Billing Address):
xerox 8 ®
TERM LEASE PAYMENT - (Monthly frequency unless otherwise noted) PURCHASE OPTION - ('FMV' unless otherwise noted) Initial Term:
(in months)
Lease Payment (plus applicable taxes): $1, 0()5", ~,_
Frequency: IE! Monthly D Quarterly D Annually
CUSTOMER ACCEPTANCE
l8J Fair Market Value Purchase Option ("FMV")
D $1 Purchase Option
BY YOUR SIGNATURE BELOW, YOU ACKNOWLEDGE THA OU ARE ENTERING INTO A NON-CANCELLABLE AGREEMENT AND THAT YOU HAVE READ AND AGREED TO ALL APPLICABLE TERMS AND CONDITIONS SET TH AGES 1 AND 2 HEREOF.
Authorized Signer X: ' "veda Date: t'2- l1-M Federal Tax ID# (Required): 9 Y-~ tltJIJs.? 7
1. Definitions. The words "you" and "your" mean the legal entity Identified In "Customer lnformatlon" above, and -XFS, • •we; •us•, •owner" and •our" mean Xerox Financial Services llC. "Party" means you or XFS, and "Parties" means both you and XFS. "Supplier" means the entity Identified as "Suppller"' above. "Acceptance Date• means the date you Irrevocably determine Equfpment has been delivered, Installed and operating satisfactorily. "Agreement" means this lease Agreement, Including any attached Equipment schedule. "Commencement Date• will be a date after the Acceptance Date, as set forth In our first lnvo!ce, for the purpose of facl~tatlng an orderly transltfon and to provide a uniform billing cycle. "Discount Rate• means 3" per annum. "Equipment" means the Items Identified In "Equipment" above and In any attached Equipment schedule, plus any Software (as defined In Section 3 hereof), attachments, accessories, replacements, replacement parts, substitutions, additions and repalrs thereto. "Interim Period" means the period, If any, between the Acceptance Date and the Commencement Date. "Interim Payment" means one thirtieth cf the Lease Payment multiplied by the number of days in the Interim Period. "Payment" means the lease Payment specified above, Taxes and other charges vou, Supplier and XFS agree will be Invoiced by XFS. "Maintenance Agreement" means a separate agreement between you and Suppller for malntenance and support purposes. "Origination Fee• means a one-time fee of $125 billed on your first invoice, which you agree to pay, covering origination, documentation, processing and other initial ccsts. "Term" means the Interim Period, if any, together with the Initial Term plus any subsequent renewal or extension terms. •ucc• means the Uniform Commercial Code of the State(s) where XfS must file UCC4 financing statements to perfect Its security Interest In the Equipment. 2, Agreement, Paymenu and Late Paymenu. You agree and represent that the Equipment was selected, configured and negotiated by you based on your judgment and supplied by Supp'Her.
At your request, XFS wll1 acquire same from Supplier to lease to you hereunder and you agree tc lease same from XFS. The Initial Term commences on the Commencement Date. You aaree tc pay XFS the first Payment plus any applicable Interim Payment no later than 30 days after the Commencement Date; each subsequent Payment shall be payable on the same date of each month thereafter. You a11ree ta pay us all sums due under each Invoice via check, Automated Clea ring House debit, Electronic Funds Transfer or direct debit from your bank account by the due date. If any Payment Is not paid ln full within 5 days after Its due date, you wlll pay a late charce of the sreater of 1°" of the amount due or $25, not to exceed the maximum amount permitted by law. For each dishonored or returned Payment, you will be assessed the applicable fee, not to exceed $35, Restrictive covenants on any method of payment will be ineffective.
3. Equipment and Software. To the extent that Equipment Includes intangible property or associated services such as software licenses, such Intangible property shall be referred to as "Software.• You acknowledge and agree that XFS Is not the licensor of such Software, and therefore has no right, title or Interest In It, and vou will comply throughout the Term with any license and/or other agreem1mt ('Software License") with the supplier of the Software ("Software Supplier"). You are responsible for determining with the Supplier whether any Software Licenses are required, and entering Into them with Software Supplier(sl no later than 30 days after the Acceptance Date. YOU AGREE THE EQUIPMENT IS FOR YOUR LAWFUL BUSINESS USE IN THE UNITED STATES, WILL NOT BE USED FOR PERSONAL, HOUSEHOLD OR FAMILY PURPOSES, AND IS NOT BElNG ACQUIRED FOR RESALE. You will not attach the Equipment as a fixture to real estate or make any permanent alterations to It.
4. Non•Cancellable Aareement. THIS AGREEMENT CANNOT BE CANCELLED OR TERMINATED BY YOU PRIOR TO THE END OF THE INmAL TERM. YOUR OBUGATION TO MAKE All PAYMENTS IS ABSOLUTE AND UNCONDmONAl ANO NOT SUBJECT TO DELAY, REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM OR RECOUPMENT FOR ANY REASON WHATSOEVER, IRRESPECTIVE OF THE PERFORMANCE OF THE EQUIPMENT, SUPPLIER, ANY THIRD PARTY OR XFS. Any pursued clalm by you against XFS for alleged breach of our obligations hereunder shall be assened solely In a separate action; provided, however, that your obllgatlons hereunder shall continue unabated.
5. Equipment Delivery and Maintenance. You should arrange with Supplier to have the Equipment delivered to you at the locatlon(s) specified herein, and you a11ree to execute a Delivery & Acceptance Certificate at XFS's request (and confirm same via telephone and/or electronically) confirming when you have received, Inspected and Irrevocably accepted the Equlpmen~ and authorize XFS to fund the Supplier for the Equipment. If you fall to accept the Equipment, you shall no longer have any obligations hereunder; however, you remain liable for any Equipment purchase order or other contract Issued on your behalf directly with Supplier. Equipment may not be moved to another physical address wlthout XFS's prior written consent, which shaU not be unreasonably withheld or delayed. You agree that you will not take the Equipment out of service during the Term. You shall permit XFS or IU agent to Inspect Equipment and any maintenance records relating thereto durln11your normal business hours upon reasonable notice. You represent you have entl!rl!d Into a Maintenance Agreement to maintain the Equipment in good working order In accordance with the manufacturer's maintenance guidelines and to provide you wlth Equipment supplie$. You acknowled1e that XFS ls acting solely as an administrator for Supplier with respect to the billing and collecting af the chargl!s undl!r any Maintenance Agreeml!nt. XFS IS NOT LIABLE FOR ANY BREACH BY SU PPUER OF ANY OF ITS OBLIGATIONS TO YOU, NOR Will ANY OF YOUR OBLIGATIONS HEREUNDER BE MODIFIED, RELEASED OR EXCUSED BY ANY ALLEGED BREACH BY SUPPLIER.
6. End of Agreement Options. If a $1 Purchase Option Is designated, you will be deemed to have exercised your option to purchase the Equipment as of the Acceptance Date. If an FMV purchase option Is designated, If you are not In default and if you provide no greater than 150 days and no less than 60 days' prior written notice to XFS, you may, at the end of the ln1t1a1Term or any renewal term ("End Date"), either la) purchase all, but not less than all, of the Equipment by paying its fair market value, as determined by XFS In Its sole but reasonable discretion !"Determined FMV"), plus Taxes, or (b) return the Equipment within 30 days of thl! End Date, at your expense, fully Insured, to a conUnl!ntal US locatlon XFS sha[I specify, You cannot return Equipment more than 30 days prior to the End Datl! without our consent If we consent, we may charge you, In addition to all undlscountt d amounts due hereunder, an early termination fee.
If you have not electl!d one of the above options, this Agreement shall renew for successive 3-month tl!rms. Either party may terminate the Agreement as of the end of any 3-month rl!newal term on 30 days' prior written notice and by taking one of the actions identified In (a) or (bl In the preceding sentence of this section. Any FMV purchase option shall be exercised with respect to each item of Equipment on the day Immediately following the date of expiration of the Term of such Item, and by the delivery at such time by you to XFS of payment, In form acceptable to XFS, of the amount of the applicable purchase price. Upon payment of the applicable amount, XFS shall transfer our lntl!rest In the Equlpml!nt to you on an "AS IS, WHERE IS,• "WITH AU FAULTS" basis, without representation or warranty of any kind.
7. Equipment Retum.11 the Equipment 15 returned to XFS, It shall be in the same condition as when delivered to you, except for "ordinary wear and tl!ar" and, if not In such condition, you w,11 be liable for all expensl!S XFS Incurs to return the Equipment to such condition. IT IS SOLELY YOUR RESPONSIBILITY TO SECURE ANY SENSITIVE DATA AND PERMANENnY DELETE SUCH DATA FROM THE INTtRNAl MEDIA STORAGE PRIOR TO RETURNING THE EQUIPMENT TO XFS. YOU SHALL HOLD XFS HARMLESS FROM YOUR FAILURE TO SECURE AND PERMANENTLY DEL£11:
All SUCH CUSTOMER DATA AS OUnlNED IN THIS SECTION.
a. Meter Readings and Annual AdJustmenu. You acknowledge and agree that any cost-per-copy charges and associated meter readlngs/submlttals are not a part of this Agreement, but will be your responsibility under the Maintenance Agreement. In addition, at any time after 12 months from the Commencement Date and for each successive 12 month period thereafter during the Term, XFS may Increase your lease Payment by a maximum of fifteen percent ( 15") of the then-current Lease Payment therefor and you agree to pay such Increased amounts.
Pa11e 1 of2 XFS-FMV-IS-04.15.18
9. Equipment Ownership, Labelln1 and UCC Flllng. If and to the extent a court deems this Agreement to be a security agreement under the UCC, and otherwise for precautionary purposes onlv, you grant XFS a first priority security Interest In your Interest In the Equipment as defined above In order to secure your performance hereunder. Unless a $1 Purchase Option Is applicable, XFS Is and shall remain the sole owner of the Equipment, except the Software. You authorize XFS to file a UCC financing statement to show, and to do all other acts to protect, our Interest In the Equipment. You agree to pay any fillng fees and administrative costs for the filing of such financing statements. You agree to keep the Equipment free from any Tiens or encumbrances and to promptly notlfy XFS tf there Is any change In your organization such that a refiling or amendment to XFS's financing statement against you becomes necessary.
10. Assignment. YOU MAY NOT ASSIGN, SELL, PLEDGE, TRANSFER, SUBLEASE OR PART WITH POSSESSION OF THE EQUIPMENT, THIS AGREEMENT OR ANY OF YOUR RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT (COLLECTIVELY "ASSIGNMENT"I WITHOUT XFS'S PRIOR WRIITTN CONSENT, WHICH SHALL NOT BE UNREASONABLY WITHHELD, BUT SUBJECT TO THE SOLE EXERCISE OF XFS'S REASONABLE CREDIT DISCRETION AND EXECUTION OF ANY NECESSARY ASSIGNMENT DOCUMENTATION. If XFS agrees to an Assignment, you agree to pay the applicable anl1nment fee and reimburse XFS for any costs we Incur In connection with that Assl1nment, which In the auregate shall not exceed $250. XFS may sell, assign or transfer a~ or anv part of the Equipment, this Agreement and/or any of our rights (but none of our obli1atlons except for lnvolcln1 and tax admlnlstratlon) hereunder. XFS's assignee will have the same rights that we have to the extent assigned. YOU AGREE NOTTO ASSERT AGAINST SUCH ASSIGNEE ANY CLAIMS, DEFENSES, COUNTERCLAIMS, RECOUPMENTS, OR SET-OFFS THAT YOU MAY HAVE AGAINST XFS, and you a1ree to remit Payments to such Assignee If so designated. XFS agrees and acknowledges that any Assignment by us will not materially change your obllgatfons hereunder.
11. Taxes. You wm be responsible for, Indemnify and hold XFS harmless from, all appl'cable taxes, fees or charges (Including sales, use, personal property and transfer taxes (other than net Income taxes), p!us Interest and penalties) assessed by any governmental entity on you, the Equipment, this Agreement, or the amounts payable hereunder (collectively, "Taxes•I, which will be Included In XFS's Invoices to you unless you timely provide continuing proof of your tax exempt status. Regardless of your tax•exempt status, XFS reserves the right to pass throu11h, and you agree to pay, any suth Taxes that are actually assessed by the applicable State on XFS as lessor of the Equipment. For Jurisdictions where certain taxes are calculated and pald at the tlme of agreement Initiation, you authorize XFS to finance and adjust your Payment to Include such Taxes over the Term. Unless and until XFS notifies you In writing to the contrary, the following shall apply to personal property taxes and returns. If an FMV purchase option Is applicable, XFS will fite all personal property tax returns covering the Equlpment, pay the personal property taxes levied or assessed thereon, and co!lect from your account all personal property taxes on the Equipment. If a $1 purchase option Is app:lcab1e, you will file all personal property tax returns covering the Equipment, pay the personal property taxes levied or assessed thereon, and provide us proof thereof upon our request. XFS MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE TAX OR ACCOUNTING TREATMENT OF THIS AGREEMENT.
12. Equipment Warranty Information and Dlsclalmers. XFS HAS NO INVOLVEMENT IN THE DESIGN, MANUFACTURE, SALE, DEUVERY, INSTAllATION, USE OR MAINTENANCE OF THE EQUIPMENT. THEREFORE, XFS DISClAIMS, ANO YOU WAM SOLELY AGAINST XFS, All EQUIPMENT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE, AND XFS MAKES NO REPRESENTATIONS WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE EQUIPMENT'S SUITABILITY, FUNCTIONALITY, DURABILITY OR CONDmON. Slnce you have selected the Equipment and Supplier, you acknowledge that you are aware of the name of the manufacturer of each Item of Equipment, Supplier's c:ontact Information, and agree that you will contact manufacturer and/or Supplier for a description of any warranty rights you may have under the Equipment supply contract, sales order, or otherwise. Provided you are not In default het<!under, XFS hereby assigns to you any Equipment warranty ri1hts we may have against Supplier or manufacturer. If the Equipment Is returned to XFS or you are In default, such rights are deemed reassigned by you to XFS. IF THE EQUIPMENT IS NOT PROPERLY INSTALLED, DOES NOT OPERATE AS WARRANTED, BECOMES OBSOLETE, OR IS UNSATISFACTORY FOR ANY REASON WHATSOMR, YOU SHALL MAKE All RELATED ClAIMS SOLELY AGAINST MANUFACTURER OR SUPPLIER AND NOT AGAINST XFS, AND YOU SHALL NEVERTHELESS CONTINUE TO PAY All PAYMENTS ANO OTHER SUMS PAYABLE UNDER THIS AGREEMENT.
13. llablllty and lndemnlflcatlon. XFS IS NOT RESPONSIBLE FOR ANY LOSSES, DAMAGES, EXPENSES OR INJURIES OF ANY KIND OR TYPE, INCLUDING. BUT NOT LIMITED TO, ANY SPECIAL, INDIRECT, INCIDENTAL, CONSE(lUENTIAL OR PUNITIVE DAMAGES (COLLECTIVELY, •CLAIMS") TO YOU OR ANY THIRD PARTY CAUSED BY THE EQUIPMENT OR ITS USE. You a.ssume the risk of liability for, and hereby agree to Indemnify and hold safe and harmless, and covenant to defend, XFS, Its employees, officers and agents from and against: (al any and a.II Clalms (including tegal expenses of every kind and nature) arising out of the acceptance or rejection, ownership, leaslng. possession, operation, use, return or other disposition of the Equipment; and (b) any and all loss or damage of or to the Equipment. Neither sentence In this Section shaO apply to Claims arising directly and proxlmatel)IJrom XFS's gross negligence or willful misconduct.
14. Default and Remedies. You will be In default hereunder If XFS does not receive any Payment within :di ~ays after Its due dat"i!J'lr you breach any other material obllgatton hereunder or any other agreement with XFS. If you default, and such default continues for 10 days after XFS provlde~ptlce to you, XFS may, In addllion to other remedies (lncludlnR disabling ot repossessing the Equipment and/or requesting Supplier to cease performing under the Maintenance Agreemen1~1ptillately require you toldalone or more of the foJ!owlng; (a) as liquidated damages for loss of bargain and not as a penalty, pay the sum of (II all amounts then past due, plus Interest from the due date until paid at the rate of 1.5" per month; (HI the Payments remaining In the Term (Including the fixed maintenance component thereof, If permitted under the Maintenance Agreement)_. discounted at the Dlsc:ount Rate to the date of default, (Ill) the Equipment's booked residual, and (lvl Taxes; and (b) require you to return the Equipment as provided In Sectl ons 6 and 9 hereof. You agree to pay all reasonable costs, Including attorneys' fees a11d disbursements, Incurred by XFS to enforce this Aareement.
15. Risk of Loss and Insurance. You assume and agree to bear the entire ~lsk of loss, theft, destruction or other Impairment of the Equipment upon delivery. You, at your own expense, (II shall keep Equipment Insured against loss ordamaRe at a minimum of full replacement value thereof, and (fll shall carry liabl!lty Insurance a1alnst bodily Injury, lncludln1 death, and against property damage In the amount of at least $2 million {collectively, "Required Insurance•). All such Equipment rass/dama1e Insurance shall be with lender's loss payable to "XFS, Its successors and/or assigns, as their Interests may appear: and shall be with c:ompanles reasonably acceptable to XFS. XFS shall be named as an additional Insured on all llab~lty Insurance policies. The Required Insurance shall provide for 30 days' prior notice to XFS of cancellation. YOU MUST PROVIDE XFS OR OUR DESIGNEES WITH SATISFACTORY WRITTEN EVIDENCE OF REQUIRED INSURANCE Wn'HIN 300AVS OF THE ACCEPTANCE DATE AND ANY SUBSEQUENT WRITTEN REQUEST BY XFS OR OUR DESIGNEES. IF YOU DO NOT DO SO, THEN IN LIEU OF OTHER REMEDIES FOR DEFAULT, XFS 1N OUR DISCRETION ANO AT OUR SOLE OPTION MAY (BUT IS NOT REQUIRED TO) OBTAIN INSURANCE FROM AN INSURER OF XFS'S CHOOSING, WHIOI MAY BE AN XFS AFFILIATE, IN SUCH FORMS AND AMOUNTS AS XFS DEEMS REASONABLE TO PROTECT XFS'S INTERESTS (COLLECTIVELY •EQUIPMENT INSURANCE"). EQUIPMENT INSURANCE Will COVER TffE EQUIPMENT AND XFS; IT Will NOT NAME YOU AS AN INSURED AND MAY NOT COVER All OF YOUR INTEREST IN TffE EQUtpMENT AND Will BE SUBJECT TO CANCELlATION AT ANY TIME.
YOU AGREE TO PAY XFS PERIODIC CHARGES FOR EQUIPMENT INSURANCE (COLLECTIVELY "INSURANCE otARGES"J THAT INCLUDE: AN INSURANCE PREMIUM TffAT MAY BE HIGHER THAN IF YOU MAINTAINED THE REQUIRED INSURANCE SEPARATELY; A FlNANCE CHARGE OF UP TO 1.5" PER MONTH ON ANY ADVANa5 MADE BY XFS OR OUR AGENTS; AND COMMISSIONS, BILLING AND PROCESSING FEES; ANY OR AU OF WHICH MAY GENERATE A PROFIT TO XFS OR OUR AGENTS. XFS MAY ADD INSURANCE CHARGES TO EAot PAYMENT, XFS shall discontinue blllln1 or debiting Insurance Cha111es for Equipment Insurance upon receipt and review of satisfactory evidence of Required Insurance. You must promptly notify XFS of any loss or damage to Equ'pment which makes any Item of Equipment unfit for continued or repalrable use. You hereby Irrevocably appoint XFS as your attorney-In-fact to execute and endorse all checks or drafts In your name to collect under any such Requtred Insurance. Insurance proceeds from Required Insurance or Equipment Insurance received shall be applied, at XFS's option, to Ix) restore the Equipment so that It Is In the same condition as when delivered to you (normal wear and tear excepted), or (y) If the Equipment Is not restorable, to replace It with like-kind condition Equipment from the same manufacturer, or (z) pay to XFS the greater of Ill the total unpaid Payments for the entire Term hereof (discounted to present value at the Discount Rate) plus, If an FMV purchase option fs desl11nated on the first paae hereof, XfS's residual Interest In such Equipment (herein aereed to be 20% of the Equipment's orlalnal cost to XFSJ plus any other amounts due to XFS hereunder, or (II) the Determined FMV Immediately prfor to the loss or damage. NO LOSS OR DAMAGE TO EQUIPMENT, OR XFS'S RECEIPT AND APPLICATION OF INSURANCE PROCEEDS, SHALL RELIEVE YOU OF ANY OF YOUR REMAIN ING OBLIGATIONS UNDER THIS AGREEMENT. Notwithstanding procurement of Equipment Insurance or Required Insurance, you remain primarily liable for performance under lhls Section In the event the applicable Insurance can-I er fails or refuses to pay any dalm. YOU AGREE (II AT XFS'S SOLE ELECTION TO ARBITRATE ANY DISPUTE WITH XFS, OUR AGENTS OR ASSIGNS REGAMIING TffE EQUIPMENT INSURANCE UNDER THE RUlES OF THE AMERICAN ARBITRATION ASSOOATION IN FAIRFIELD COUNlY, CT, (II) THAT IF XFS MAKES THE FOREGOING ElECTION ARBITRATION (NOT A COURT) SHALL BE THE EXa.tJSIVE REMEDY FOR SUCH DISPUTES; AND (Ill) THAT ClA5S ARBITRATION IS NOT PERMITTED, This arbitration option does not apply to any other provision of this Aareement.
16. Finance Lease and customer Waivers. The parties agree this Agreement shall be construed as a "finance lease" under UCC Anlcle 2A. Customer waives Its rights as a leuee under ucc 2A sections 508-522,
17. Authorization of Signer and Credit Review. You represent that you may lawfully enter Into, and perform, this Agreement, that the Individual signing this Agreement on your behalf !las all necessary authority to do so, and that an flnanclal lnformat!op you provide accurately represe11ts your financial condition. You agree to furnish financial Information that XFS may request now, including your Federal Tax ID, and you authorize XFS to obtain credit reports on you In the future should you default or fa~ to make prompt payments hereunder.
18. Original and Sole COntrolllng Document. No Modifications Unless In Writing. This Agreement constitutes ttie entire agreement between the Parties as to the subjects addressed herein, and representations or statements not included herein are not part of this Agreement and are not binding on the Parties. You agree that an executed copy of this Agreement that Is signed by your authorized representative and by XFS's authorized representative (an original manual signature or such signature reproduced by means of a rellable electronic form, such as electronic transmission of a facsimile or electronic signature) shat! be marked •onglnal" by XFS and shall constitute the on!y original document for all purposes. To the extent this Agreement constitutes UCC chattel paper, no security Interest in thls Aareement may be created except by the possession or transfer of the copy mar~ed "orlglnar by XFS. IF A PURCHAS'E ORDER OR OTHER DOCUMENT IS ISSUED BY YOU, NONE OF ITS TERMS AND CONDITIONS SHALL BE BINDING ON XFS, AS THE TERMS AND CONDm ONS OF THIS AGREEMENT EXCLUSIVELY GOVERN THE TRANSACTION DOCUMENTED HEREIN. SUPPLIER AND ITS REPRESENTATIVES ARE NOT OUR AGENTS ANO ARE NOT AUTHORIZED TO MODIFY OR NEGOTIATE THE TERMS OF THIS AGREEMENT, THIS AGREEMENT MAY NOT BE AMENDED OR SUPPLEMENTED EXCEPT IN A WRlmN AGREEMENT SIGNED BY AUTHORIZED REPRESENTATIVES OF THE PARTIES AND NO PROVISIONS CAN BE WAIVED EXCEPT IN A WRITING SIGNED BY XFS, You authorize XFS to Insert or correct missing Information on this Aareement, Including but not limited to your proper legal name, a1reement/numbers, serial numbers and other Equipment Information, so long as there Is no material •mpact to your financial obllgatlons. 19, Govemlng Law, Jurisdiction, Venue and JURY TRIAL WAIVER. THIS AGREEMENT IS GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CONNECTICUT. THEJURISD.ICTION AND VENUE OF ANY ACTION TO ENFORCE THIS AGREEMENT, OR OTHERWISE RELATING TO THIS AGREEMENT, SHALL BE IN A FEDERAL OR STATE COURT IN FAi RFiELD COUNTY, CONNECTICUT OR, EXCLUSIVELY AT XFS'S OPTION, IN ANY OTHER FEDERAL OR STATE COURT WHERE THE EQUIPMENT IS LOCATED OR WHERE XFS'S OR YOUR PRINCIPAL PLACES OF BUSINESS ARE lOCATED, AND YOU HEREBY WAIVE ANY RIGHT TO TRANSFER VENUE. THE PARTIES HEMBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION RElATED TO OR ARISING OUT OF THIS AGREEMENT.
20. Miscellaneous. Your obligations under the "Taxes• and •uabltlty" Sections commence upon execution, and survive the expiration or earlier termination, of this Agreement. Notices hereunder must be Ill wrltl'n11. Notices to you will be sent to the •et1Hng Address• provided on the flrst page hereof, and notices to XFS shall be sent to our address provided on the first page hereof. Notices will be deemed given S days after malling by first class malt or 2 days after sendlnl by natronallv recognlied overnight courier. Invoices are not considered nollces and are not 1ovemed by the notice terms hereof. You authorize XFS to communicate with you by any electron!c means (lnclud1ng cellular phone, email, automatic dialing and recorded messages) using any phone number {Including cellular) or electrontc address you provide to us. If a court finds any term of this Agreement unenforceable, the remaining terms will remain In effect. The failure by either Party to exercb e any right or remedy wlll not constitute a waiver of such right or remedy. If more than one party has signed this Aareement as Customer, each such party agrees that Its llablUty ts joint and several. The followlng four sentences control over every other part of this Agreement: Both Parties will comply with applicable laws. XFS will not charge or collect any amounts In excess of those allowed by applicable law. Any part of this Agreement that would, but for the last four sentences of this Section, be read under any circumstances to allow for a cha111e higher than that allowed under any applicable legal llmlt, Is modified by this Section to limit the amounts chargeable hereunder to the maximum amount allowed under the legal limit. If, in any clrcumsta.,ces, any amount In excess of that allowed by law~ charged or received, any such charge will be deemed llmlted by the amount legally allowed and any amount received by XFS In excesi of that legally allowed wlll be applied by us to the payment of amounts legally owed hereunder or refunded to you.
Pne2 of2 Xf S+FMV•IS-04.lS..18
PrintCare
Managed Print Solutions
CUSTOMER INSTALL
Ful Legal Name
Address
CUSTOMER BILL TO
Name
Address
Phone Contad Name
Monthly Base Maintenanee Payment = S \ '2,.(: .,...... Excess Per Image Charge ~taled '" the below table Cost Per Image Agreement 650 E Hospitalit y L•no, Suite 500 S.o Bornonlloo CA, 92408 Agreement No.
OBA
City St•le Ct>, ZIP
City State CA- ZIP Qs(,, lf
DEFINITIONS! The words Customer, You and Your refer to customer Indicated above. The words Company, We, Us and Our to Image Source.
SERVICES OFFERED; We agree to provide all consumables, along with device environment monitoring, auto toner replenishmen~ proactive service error monitoring phone technical sup po~ service, and quarterly environment reporting under th's Cost Per Image Agreement. Further Information on the Service Management details are stated on the back of this document. Covered equipment, along with Cost Per Image pricing, Is listed In the table above, or separately In Schedule(s) A. and/or B IMAGE CHARGES~ Payments are due monthly, beginning the date the Agreement is lnitiated (as noted by the Agreement date below) or any later date designated by Us (see "Transitional Billing• section below) and continuing on the same day of each lollowing month until fully paid You are entiUed to make the tcrtal number of Images renected In the Monthly Image Allowance shown In the tab,e above, or separately In Schedule(s) A, and/or B, each month (II consolidated), or the monthly amount Image Allowance Per Machine or Group (if not consolidated). II You use more than the applicable Allowance(s) in any month, You will pay Us an additional charge equal to the number or additional metered Images muttiplied by the applicable Excess Per Image Charge. If the meter reading required lor period·c bllling Is not ava lable. Company may bill for use based on an average volume for the most recent 3 months. You agree that We may proportionally Increase Your Per Image Charges at any lime if Our estimated average page coverage is exceeded In any month during the term of this Agreement Each print made that is larger than 145 square inches may register as 2 prints on the meter. In addttion to the foregoing. You agree that effective on eachfany anniversary or this Agreement, We may annually Increase both the Minimum Monthly Payment and lhe Excess Per Image Charge by amounts determined in Our discreUon but not to exceed ten pe,cent (10%) or the then current payment and/or charge In each year. You agree to comply with bll~ng and meter collection procedures designated by Us. Including notilyrng Us of the meter reading on the billing date. If meters are not received. We reserve the right to estimate Your usage for the b~llng perlOd TRANSITIONAL BILLING: If We designate as the Agreement commencement date or effective date a date which Is later tnan the date the Agreement ls/was initialed (as noled by the Agreement Date below). then You shall pay Us an lnterim payment for each day, from the date the Agreement ls/was Initiated until the commencement date, equal to the minimum monthly payment divided by 30. If this Cost Per Image Agreement has no m'nimum monthly amount (as designated in In the table above. or separately in Schedule{s) A, and!or B), We will bill You for actual pages copied or printed from the Agreement ln,tiatioo date until the designated commencement date GOVERNING LAW, CONSENT TO JURISDICTION AND VENUE OF LITIGATION This Agreement and each addendum shall be governed by the laws of the State of Callfomla You agree that any dispute arising under or related to this agreement will be adjudlcated in the federal or state court located In San Bernardino. You hereby consent to personal jurisdiction and venue In that court and waive any right to transfer venue. Each party walves any right to a trial by jury LATE FEES: If any amount payable to Us is nol paid when due, You will pay Us a late charge equal to 1) a rate of 1.5% per month of balance overdue or 2) a minimum or $5 per month.
The Customer will also pay CO:lection costs and reasonable attomey·s fees should the account be placed ror collection.
AGREEMENT PERIOD This agreement Is ror a period of 60 months from the date the Agreement Is Initiated and Is non-cancelable In addition to any other rights under this contract, Company may terminate this contract at any time by giving the Customer 30 day prior written notice. Unless notified In writing 30 days prior to the contract expiration date, this agreement shall renew ro, 12-month periods.
THIS AGREEMENT JS SUBJECT TO THE TERMS AND CONOITIONS PR NTEO ON HIS PA E. THE REVERSE SIDE. AND. IF APPtlCAll.E, A TT ACHED S HEOULE{SJA AND/OR B, ALL OF WHICH PERTAIN TO THIS AGREEMENT ANO WHICH YOU ACKNOWLEDGE HAVING REAO. THIS AGREEMENT IS NOT BINDING UNTIL ACCEPTED BY US. YOU CERTIFY ALL ACTIONS REQUIRED TO AUTHORIZE EXECUTION OF THIS AGREEMENT INCLUDING YOUR AUTHORITY HAVE BEEN FULFILLED.
CUSTOMER. (As Stoted Abovol
natur,
Prln_t N&~J & Ti Pr.nt Nilme & Tlde
Finance Director
PrintCare ~l imageS1Qr~f S~
Managed Print Solutions 650 E Hospitality Lane. Suile500 San Bernardino, CA 92408
I. MAINTENANCE ANO SUPPLIES.
A. Cost Per Image Cllargas. The charges stated rn the Agreement Include charges for maintenance (from 8 am. to 5 pm locaHlme. except weekends and holidays ("Regular Service Hours"), Inspect on. adjus1ment. pans replacement. cleaning material require!! for proper operation. and toner and developer for such Equipment and may also Include charges for such maintenance and supplies provided to You for the Equipment. Paper and staples are not included In lhis maintenance agreement. You must purchase stap•es separately, from Us. Color toner and developer suppl es will be provided for production of pages, with an average 20•4 page coverage. Supplies required for production In e,cess of 20% page coverage will be Invoiced separately. Specialty toner and dry Inks excluded from consumable sup piles. Consumable sup piles exclude any toners and dry Inks (and their associated developers) other than standard cyan magenta. yellow. and black. Specialty toner and dry ,Inks (and their associated developers) must be purchased separately from Us We may charge a fulfillment fee to cover equipment monitor.·ng and supply replenishment and dellvery B. Equipment Ellgible for Coverage. This only applies to the Equipment Identified In the tab:e on page one, or separately In Schedule(s) A, and/or B. You represent and warrant that, other than as set forth in the table on page one. or separately In Schedule(s) A, and/or B, there Is no o1her equ·pment l ocated at Your site(s) capable of using Our supplied toner and Ink consumables. All Equipment capable of using Our suppl.ed toner and il!k consumab"es must be fnctuded in this Agreement, To the best ol Your knowledge. there are no equl,:ment conditions that do no1 meet manufacturer's specifications ('Pre-EJ<1sllng CondiUons"). other than those specificany Identified In the table on page one. or separately In Sc;hedule(s) A and/ or B. You agree that We shall have the ~ ghl to lnspec;t and verify any Equipment covered by this Agreement wh'ch was previously owned by You. We reserve the right, at Our sole discretion, to exclude from thls agreement any Equipment that We determine to have material lalits, and/or to be unfit for service If applicable. We may dlScount the Monthly Base Maintenance Payment by the amount reasonably allocated to any excluded Equipment C. Definition of Services Provided. We agree (a) to pelform only those repairs Involving wom Equipment components that have failed during ordinary use of the Equipment under normal operating conditions (trays, covers and o1her non-consumable parts are not covered). and (b) to supply You with al toner and Ink consumables requlred to operate the Equipment. Requests for services outside of Regular Service Hours will be provided on e best erron basis at Our preva.llng rme and materia'I hourly rate. Sud1 charges for services outside of Regular Serv·ce Hours are in add tlon to the prepaid M nimum Monthly Payment. This Agreement does not cover after.hours service, shop overhauls, and service made necessary by accident. fire, water, natural d'sasters or !allure by You to meet lhe manufadurer's electrical requirements D. Access to Equipment We shall have the right to access Your site anll any other of Your premises that may house Equipment up011 reasonable notio;e for access with Your supervision during regular work hours. We reserve the right to Invoice You at Our prevailing time and material hourly rate, separate from the Minimum Monthly Payment, when access to lhe Equipment is denied for greater than fifteen (15) IT\if!utes, when You Initiated the request for service. We shaU apply an estimated monthly page volume lo any and all Equipment lhat cannot be accessed lor page count recording purposes, E. Authorized Maintenance Providers. We. at Our dlscretron. may authoriZe Our approved maintenance subcontractors or approved servlce providers to perform maintenance and rep,irs to the Equipment. In cases where We manage Your third pany service agreement on Your behalr, then all sums currently due under lhat agreement must be pa d In full berore We will assume any obllgatl.on or responsibility F. Repair Responsibility. Maintenance servkes excludes repairs due to: (a) mJsuse. negled Gt abuse; (b) failure or the installation s'te or the PC or workstaUon used with the Equipment to comply with manuta<:1urer's pub'•shed specifications. (c) use of options, accessories or produ<:1s not serviced by Us, (dl non-1rnage Source alleracons, retocallon. service or supplies; 01 (e) failure to perform operator maintenance procedures Identified In operator manuals. or (I) fa~ure by You lo meet the manuracturer's electrical requirements. Equipment may not be moved to another physical address without Our pJ!or written consent. which sha~ no1 ba unreasonably withheld or delayed, You agree that you wilt no1 lake the Equipment out of service during the Term.
G. Analyst Services. We agree to provide Analyst Services, al no addil~onal charge, for the first 90 days olthls Agreement. Ah 90 UJy!t You ;;g:ce ta pa1 l:ls pe,lbdlc d,arget- . . . . ' . · ~ GaDC,ellalion, ¥ew agfae • •••Me e.nwrwal bl 11•:afjst em f.k.t:J =ma tu me !Q¥J111hEJU e&r&'H by ih1i A;1aoett.
H. Ownership and Control ol Toner and Ink Consumables. AU toner and Ink consumables supplies provided under this Ag eme~t shall al a~ limes remain the property or Us You may use the toner and Ink consumables pursuant to the terms of this Agreement, but You shall not have any ownership righta in or to the toner or Ink consumables. Voll shall not be charged for any toner or rnk consumables In use upon the expiratron of this Agreement, The ordering ot conswnabJes slgnificanUy In excess of the number of copies or prints produced may be charged to Yo11 by Us
l AddlUonal Equipment 1111d Righi of lnspecUon. 1 You shall notify Us promptly upon Installing any adllitlonal equipment ("Additional Equipment'! at Your site capable of using Our supplied toner and In~ consumables Equ pment Installed subsequent to the dale of this Agreement wl be evaluated by Us, and Included in. or exctuded from, this Agreement at the sole discretion of Us z. Additional Equipment deemed Included In the Agreement by Us shall be added to this Agreement and wla automaUcally be covered by and consldered Equipment under the terms of this Agreement. Blll,ngs or surchar11es for Additional Equipment output will be reflected In the bliling cycle Immediately ro, owin11 the billing cycle In which the Addlllonal Equipment Is lnstal'ed. II You add Additional Equ pment, the Minimum Monthly Payment may be adjusted acconllngly. at Our sole dlscreUon, 3, If any such Additional Equipment Is used equlpment. You represent and warrant to Us that, e,cept for Pre-Existing Conditions duly disclosed ta Us prior to such Addlllonal Equipment betng covered by this Agreement, all of the AddiUonal Equipment shall, on the date such coverage commences, be in gaol! wor~lng order. We sha1 be entitled to take a physical Inventory of the Additional Equipment. upon or prior to Its being covered by thls Agreement, to determine Whether they are In work,ng onler, In the event. as of the date coverage commences under thls Agreement, any Addit:onal Equ pment Is not In gooll woJ!tfn!I order, You shall have such Additional Equipment repalred at Your sole expense and. until such Additional Equipment Is so repaired, any Addillonal Equipment with Pre-Existing Conditions shall not be covered under thls Agreement. An lnlt.al meter reading or zero (0) ls agreed. unless You provide timely lnformat,cn to the conlrary, for any Additional Equipment that meets the conditions or Lt
II. WARRANTY Notwtthstandlng anything In this Agreement to the contrary, We warrant (a, that all personnel pelfcrming services hereunder by or on behalf of Us will have appropriate training and experience and (b) all equpment Is In accordance with Industry standanls, and a~ supphes and materials are of good quality, Without limiting the generaltty or the foregoing (and without limiling any obligation of Us to make repairs under this Agreement). You expressly agree and acknowlellge that In no eve'11 shall any manuladurer's warranty. Including but not tlmtted to any lmpl ed warranty of merchantability and fitness for a panicular purpose, be deemed given by or otherwise transferred or app'ied to Us. U You notify Us within ninety (90) days from performance of the services that the services or a pan thereof falls to conform to the standards specified herein.
Your sole and exciuslve remedy Is that We sha I prompUy repair, replace, or re-perform the non-conforming servJces.
Ill. MONITORING SOFTWARE,
A. You grant Pennlsslon to Install and Malnblln Software. We license software ('Monitoring Software·) that enables Us to monitor the usage of, and the copy count produced on •. the Equipment. You agree that We shall have the right, at any time during the term of this Agreement, to Install the Monitoring Software on one or n,ore of Your computer networked statlon(s). You agree to provide Us, during normal business hours, access to Your computer-networked statlon(s) to enable Us to upgrade, modify or maintain the Monitoring Software or to Install new releases or additions to the Monitoring Software. Under no circumstances wi'.I the Monitoring Software provide Us access to Your Information other than Information direcily related to this Agreement. You agree to not delete or remove the Monitoring Software or to alter, modlry or otherwise render II unusable during the term of this Agreement wtthout the prior written consent ol Us. If You disagree, then We retain the right to invoice You the prevailing hourly b11iab'e rate for labor required to obtain meter readings. per meter reading cycle B. No License, other Prohibitions. Nothing herein shall be construed as granting a license to You for the use of the Monkoring Software. You may not, nor may You permit or cause any other person to (a) use or copy the Monitoring Software, In whole or In pan, In any manner, (b) modify. translate, reverse engineer. decompile or dissemble the Monitoring Software, (c) rent. lease. loan, resell distribute. use In a customer-server network to provide third parties access to, or otherwise transfer the Monitoring Software, or (d) remove any proprietary notices on the Monitoring Software.
C. Intellectual Property Rights. All rights (lnciudlng all lntelledual propeny rights. whether recognize!! currently or In the future) In and to the Monkoring Software (lnclud'ng any source code. e•ecutable code. object code, tools and/or l.braries related to the Monitoring Software) will at all times be owned by Us. No modifications and/or use by You of the Monitoring Software shal under any circumstances transfer any right, titre or Interest In or lo the Monilorlng Sol\ware to You or any third pany.
D. Monitoring Software Warranty, Llablllty. You acknDW:iedge that the Monitoring Soflwarew',11 be Installed on Your networked worksta!lon(s) •as Is" without warranty of any kind. either express or lmpt ed, including the implied warranties of merchantability, fitness for a panlc:ular purpose and non-Infringement. We do not warrant that the Monitoring Software will be error rree or will operate without interrupt!on. We shaU In no event be Uab:e to You or any third pany for any special. consequential, Incidental or lndlreci damages in connecilan with the Monitoring Software. If the software Is found to cause Issues on Your network, and these Issues can be reasonably associated to the Installation or the software through uniform sollware testing and tracing methodolog,es, Our liability wm be limijed to the 111moval of said Monitoring Software rrom Your environment.
IV. MISCELLANEOUS.
A. Software. Performance Issues related to Software ancl/or connecilvity are not coverell under the terms of this Agreement. Any warranties related to Software w~1 be lhose offered by the manufadurer and wi:I be passed directly to the user. e. Software/Hardware. Connectivity and performance issues related to Software and non-standanl hardware are not covered unller the terms of this Agreement. Any warranties related to these SIMl(:a.'ttrlll, fllhn-.tfile no1 be llmited to: Xerox ConneciKey Appllcallons, PaperCut. XMedlus Fax.. Umango, Square9, Ysoft, Nuance, Formax, NeoPost. or Xero~»,iny~l>[lfea ~d scanners, wlll be those offered by the manufacturer and passed directly to the user. Operation and conrrgurallon of the Software ,'ijf ~y;;ru1~1!lft'ftlj':~a!f nil al lnstav and operation test Is completed by Us.
Customer Initial & Page 2 of 2 v9 27.19
Xerox Financial Services LLC
201 Merritt 7
Norwalk, CT 06851
Supplier Name: IMAGE SOURCE
Lease Agreement
Supplier Address:
owner: XEROX FINANCIAL SERVICES LLC ~ 201 Merritt 7, Norwalk, er 06851 Equipment Location (if different from Billing Address):
xerox 8 ®
TERM LEASE PAYMENT - (Monthly frequency unless otherwise noted) PURCHASE OPTION - ('FMV' unless otherwise noted) Initial Term:
(in months)
Lease Payment (plus applicable taxes): $1, 0()5", ~,_
Frequency: IE! Monthly D Quarterly D Annually
CUSTOMER ACCEPTANCE
l8J Fair Market Value Purchase Option ("FMV")
D $1 Purchase Option
BY YOUR SIGNATURE BELOW, YOU ACKNOWLEDGE THA OU ARE ENTERING INTO A NON-CANCELLABLE AGREEMENT AND THAT YOU HAVE READ AND AGREED TO ALL APPLICABLE TERMS AND CONDITIONS SET TH AGES 1 AND 2 HEREOF.
Authorized Signer X: ' "veda Date: t'2- l1-M Federal Tax ID# (Required): 9 Y-~ tltJIJs.? 7
1. Definitions. The words "you" and "your" mean the legal entity Identified In "Customer lnformatlon" above, and -XFS, • •we; •us•, •owner" and •our" mean Xerox Financial Services llC. "Party" means you or XFS, and "Parties" means both you and XFS. "Supplier" means the entity Identified as "Suppller"' above. "Acceptance Date• means the date you Irrevocably determine Equfpment has been delivered, Installed and operating satisfactorily. "Agreement" means this lease Agreement, Including any attached Equipment schedule. "Commencement Date• will be a date after the Acceptance Date, as set forth In our first lnvo!ce, for the purpose of facl~tatlng an orderly transltfon and to provide a uniform billing cycle. "Discount Rate• means 3" per annum. "Equipment" means the Items Identified In "Equipment" above and In any attached Equipment schedule, plus any Software (as defined In Section 3 hereof), attachments, accessories, replacements, replacement parts, substitutions, additions and repalrs thereto. "Interim Period" means the period, If any, between the Acceptance Date and the Commencement Date. "Interim Payment" means one thirtieth cf the Lease Payment multiplied by the number of days in the Interim Period. "Payment" means the lease Payment specified above, Taxes and other charges vou, Supplier and XFS agree will be Invoiced by XFS. "Maintenance Agreement" means a separate agreement between you and Suppller for malntenance and support purposes. "Origination Fee• means a one-time fee of $125 billed on your first invoice, which you agree to pay, covering origination, documentation, processing and other initial ccsts. "Term" means the Interim Period, if any, together with the Initial Term plus any subsequent renewal or extension terms. •ucc• means the Uniform Commercial Code of the State(s) where XfS must file UCC4 financing statements to perfect Its security Interest In the Equipment. 2, Agreement, Paymenu and Late Paymenu. You agree and represent that the Equipment was selected, configured and negotiated by you based on your judgment and supplied by Supp'Her.
At your request, XFS wll1 acquire same from Supplier to lease to you hereunder and you agree tc lease same from XFS. The Initial Term commences on the Commencement Date. You aaree tc pay XFS the first Payment plus any applicable Interim Payment no later than 30 days after the Commencement Date; each subsequent Payment shall be payable on the same date of each month thereafter. You a11ree ta pay us all sums due under each Invoice via check, Automated Clea ring House debit, Electronic Funds Transfer or direct debit from your bank account by the due date. If any Payment Is not paid ln full within 5 days after Its due date, you wlll pay a late charce of the sreater of 1°" of the amount due or $25, not to exceed the maximum amount permitted by law. For each dishonored or returned Payment, you will be assessed the applicable fee, not to exceed $35, Restrictive covenants on any method of payment will be ineffective.
3. Equipment and Software. To the extent that Equipment Includes intangible property or associated services such as software licenses, such Intangible property shall be referred to as "Software.• You acknowledge and agree that XFS Is not the licensor of such Software, and therefore has no right, title or Interest In It, and vou will comply throughout the Term with any license and/or other agreem1mt ('Software License") with the supplier of the Software ("Software Supplier"). You are responsible for determining with the Supplier whether any Software Licenses are required, and entering Into them with Software Supplier(sl no later than 30 days after the Acceptance Date. YOU AGREE THE EQUIPMENT IS FOR YOUR LAWFUL BUSINESS USE IN THE UNITED STATES, WILL NOT BE USED FOR PERSONAL, HOUSEHOLD OR FAMILY PURPOSES, AND IS NOT BElNG ACQUIRED FOR RESALE. You will not attach the Equipment as a fixture to real estate or make any permanent alterations to It.
4. Non•Cancellable Aareement. THIS AGREEMENT CANNOT BE CANCELLED OR TERMINATED BY YOU PRIOR TO THE END OF THE INmAL TERM. YOUR OBUGATION TO MAKE All PAYMENTS IS ABSOLUTE AND UNCONDmONAl ANO NOT SUBJECT TO DELAY, REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM OR RECOUPMENT FOR ANY REASON WHATSOEVER, IRRESPECTIVE OF THE PERFORMANCE OF THE EQUIPMENT, SUPPLIER, ANY THIRD PARTY OR XFS. Any pursued clalm by you against XFS for alleged breach of our obligations hereunder shall be assened solely In a separate action; provided, however, that your obllgatlons hereunder shall continue unabated.
5. Equipment Delivery and Maintenance. You should arrange with Supplier to have the Equipment delivered to you at the locatlon(s) specified herein, and you a11ree to execute a Delivery & Acceptance Certificate at XFS's request (and confirm same via telephone and/or electronically) confirming when you have received, Inspected and Irrevocably accepted the Equlpmen~ and authorize XFS to fund the Supplier for the Equipment. If you fall to accept the Equipment, you shall no longer have any obligations hereunder; however, you remain liable for any Equipment purchase order or other contract Issued on your behalf directly with Supplier. Equipment may not be moved to another physical address wlthout XFS's prior written consent, which shaU not be unreasonably withheld or delayed. You agree that you will not take the Equipment out of service during the Term. You shall permit XFS or IU agent to Inspect Equipment and any maintenance records relating thereto durln11your normal business hours upon reasonable notice. You represent you have entl!rl!d Into a Maintenance Agreement to maintain the Equipment in good working order In accordance with the manufacturer's maintenance guidelines and to provide you wlth Equipment supplie$. You acknowled1e that XFS ls acting solely as an administrator for Supplier with respect to the billing and collecting af the chargl!s undl!r any Maintenance Agreeml!nt. XFS IS NOT LIABLE FOR ANY BREACH BY SU PPUER OF ANY OF ITS OBLIGATIONS TO YOU, NOR Will ANY OF YOUR OBLIGATIONS HEREUNDER BE MODIFIED, RELEASED OR EXCUSED BY ANY ALLEGED BREACH BY SUPPLIER.
6. End of Agreement Options. If a $1 Purchase Option Is designated, you will be deemed to have exercised your option to purchase the Equipment as of the Acceptance Date. If an FMV purchase option Is designated, If you are not In default and if you provide no greater than 150 days and no less than 60 days' prior written notice to XFS, you may, at the end of the ln1t1a1Term or any renewal term ("End Date"), either la) purchase all, but not less than all, of the Equipment by paying its fair market value, as determined by XFS In Its sole but reasonable discretion !"Determined FMV"), plus Taxes, or (b) return the Equipment within 30 days of thl! End Date, at your expense, fully Insured, to a conUnl!ntal US locatlon XFS sha[I specify, You cannot return Equipment more than 30 days prior to the End Datl! without our consent If we consent, we may charge you, In addition to all undlscountt d amounts due hereunder, an early termination fee.
If you have not electl!d one of the above options, this Agreement shall renew for successive 3-month tl!rms. Either party may terminate the Agreement as of the end of any 3-month rl!newal term on 30 days' prior written notice and by taking one of the actions identified In (a) or (bl In the preceding sentence of this section. Any FMV purchase option shall be exercised with respect to each item of Equipment on the day Immediately following the date of expiration of the Term of such Item, and by the delivery at such time by you to XFS of payment, In form acceptable to XFS, of the amount of the applicable purchase price. Upon payment of the applicable amount, XFS shall transfer our lntl!rest In the Equlpml!nt to you on an "AS IS, WHERE IS,• "WITH AU FAULTS" basis, without representation or warranty of any kind.
7. Equipment Retum.11 the Equipment 15 returned to XFS, It shall be in the same condition as when delivered to you, except for "ordinary wear and tl!ar" and, if not In such condition, you w,11 be liable for all expensl!S XFS Incurs to return the Equipment to such condition. IT IS SOLELY YOUR RESPONSIBILITY TO SECURE ANY SENSITIVE DATA AND PERMANENnY DELETE SUCH DATA FROM THE INTtRNAl MEDIA STORAGE PRIOR TO RETURNING THE EQUIPMENT TO XFS. YOU SHALL HOLD XFS HARMLESS FROM YOUR FAILURE TO SECURE AND PERMANENTLY DEL£11:
All SUCH CUSTOMER DATA AS OUnlNED IN THIS SECTION.
a. Meter Readings and Annual AdJustmenu. You acknowledge and agree that any cost-per-copy charges and associated meter readlngs/submlttals are not a part of this Agreement, but will be your responsibility under the Maintenance Agreement. In addition, at any time after 12 months from the Commencement Date and for each successive 12 month period thereafter during the Term, XFS may Increase your lease Payment by a maximum of fifteen percent ( 15") of the then-current Lease Payment therefor and you agree to pay such Increased amounts.
Pa11e 1 of2 XFS-FMV-IS-04.15.18
9. Equipment Ownership, Labelln1 and UCC Flllng. If and to the extent a court deems this Agreement to be a security agreement under the UCC, and otherwise for precautionary purposes onlv, you grant XFS a first priority security Interest In your Interest In the Equipment as defined above In order to secure your performance hereunder. Unless a $1 Purchase Option Is applicable, XFS Is and shall remain the sole owner of the Equipment, except the Software. You authorize XFS to file a UCC financing statement to show, and to do all other acts to protect, our Interest In the Equipment. You agree to pay any fillng fees and administrative costs for the filing of such financing statements. You agree to keep the Equipment free from any Tiens or encumbrances and to promptly notlfy XFS tf there Is any change In your organization such that a refiling or amendment to XFS's financing statement against you becomes necessary.
10. Assignment. YOU MAY NOT ASSIGN, SELL, PLEDGE, TRANSFER, SUBLEASE OR PART WITH POSSESSION OF THE EQUIPMENT, THIS AGREEMENT OR ANY OF YOUR RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT (COLLECTIVELY "ASSIGNMENT"I WITHOUT XFS'S PRIOR WRIITTN CONSENT, WHICH SHALL NOT BE UNREASONABLY WITHHELD, BUT SUBJECT TO THE SOLE EXERCISE OF XFS'S REASONABLE CREDIT DISCRETION AND EXECUTION OF ANY NECESSARY ASSIGNMENT DOCUMENTATION. If XFS agrees to an Assignment, you agree to pay the applicable anl1nment fee and reimburse XFS for any costs we Incur In connection with that Assl1nment, which In the auregate shall not exceed $250. XFS may sell, assign or transfer a~ or anv part of the Equipment, this Agreement and/or any of our rights (but none of our obli1atlons except for lnvolcln1 and tax admlnlstratlon) hereunder. XFS's assignee will have the same rights that we have to the extent assigned. YOU AGREE NOTTO ASSERT AGAINST SUCH ASSIGNEE ANY CLAIMS, DEFENSES, COUNTERCLAIMS, RECOUPMENTS, OR SET-OFFS THAT YOU MAY HAVE AGAINST XFS, and you a1ree to remit Payments to such Assignee If so designated. XFS agrees and acknowledges that any Assignment by us will not materially change your obllgatfons hereunder.
11. Taxes. You wm be responsible for, Indemnify and hold XFS harmless from, all appl'cable taxes, fees or charges (Including sales, use, personal property and transfer taxes (other than net Income taxes), p!us Interest and penalties) assessed by any governmental entity on you, the Equipment, this Agreement, or the amounts payable hereunder (collectively, "Taxes•I, which will be Included In XFS's Invoices to you unless you timely provide continuing proof of your tax exempt status. Regardless of your tax•exempt status, XFS reserves the right to pass throu11h, and you agree to pay, any suth Taxes that are actually assessed by the applicable State on XFS as lessor of the Equipment. For Jurisdictions where certain taxes are calculated and pald at the tlme of agreement Initiation, you authorize XFS to finance and adjust your Payment to Include such Taxes over the Term. Unless and until XFS notifies you In writing to the contrary, the following shall apply to personal property taxes and returns. If an FMV purchase option Is applicable, XFS will fite all personal property tax returns covering the Equlpment, pay the personal property taxes levied or assessed thereon, and co!lect from your account all personal property taxes on the Equipment. If a $1 purchase option Is app:lcab1e, you will file all personal property tax returns covering the Equipment, pay the personal property taxes levied or assessed thereon, and provide us proof thereof upon our request. XFS MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE TAX OR ACCOUNTING TREATMENT OF THIS AGREEMENT.
12. Equipment Warranty Information and Dlsclalmers. XFS HAS NO INVOLVEMENT IN THE DESIGN, MANUFACTURE, SALE, DEUVERY, INSTAllATION, USE OR MAINTENANCE OF THE EQUIPMENT. THEREFORE, XFS DISClAIMS, ANO YOU WAM SOLELY AGAINST XFS, All EQUIPMENT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE, AND XFS MAKES NO REPRESENTATIONS WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE EQUIPMENT'S SUITABILITY, FUNCTIONALITY, DURABILITY OR CONDmON. Slnce you have selected the Equipment and Supplier, you acknowledge that you are aware of the name of the manufacturer of each Item of Equipment, Supplier's c:ontact Information, and agree that you will contact manufacturer and/or Supplier for a description of any warranty rights you may have under the Equipment supply contract, sales order, or otherwise. Provided you are not In default het<!under, XFS hereby assigns to you any Equipment warranty ri1hts we may have against Supplier or manufacturer. If the Equipment Is returned to XFS or you are In default, such rights are deemed reassigned by you to XFS. IF THE EQUIPMENT IS NOT PROPERLY INSTALLED, DOES NOT OPERATE AS WARRANTED, BECOMES OBSOLETE, OR IS UNSATISFACTORY FOR ANY REASON WHATSOMR, YOU SHALL MAKE All RELATED ClAIMS SOLELY AGAINST MANUFACTURER OR SUPPLIER AND NOT AGAINST XFS, AND YOU SHALL NEVERTHELESS CONTINUE TO PAY All PAYMENTS ANO OTHER SUMS PAYABLE UNDER THIS AGREEMENT.
13. llablllty and lndemnlflcatlon. XFS IS NOT RESPONSIBLE FOR ANY LOSSES, DAMAGES, EXPENSES OR INJURIES OF ANY KIND OR TYPE, INCLUDING. BUT NOT LIMITED TO, ANY SPECIAL, INDIRECT, INCIDENTAL, CONSE(lUENTIAL OR PUNITIVE DAMAGES (COLLECTIVELY, •CLAIMS") TO YOU OR ANY THIRD PARTY CAUSED BY THE EQUIPMENT OR ITS USE. You a.ssume the risk of liability for, and hereby agree to Indemnify and hold safe and harmless, and covenant to defend, XFS, Its employees, officers and agents from and against: (al any and a.II Clalms (including tegal expenses of every kind and nature) arising out of the acceptance or rejection, ownership, leaslng. possession, operation, use, return or other disposition of the Equipment; and (b) any and all loss or damage of or to the Equipment. Neither sentence In this Section shaO apply to Claims arising directly and proxlmatel)IJrom XFS's gross negligence or willful misconduct.
14. Default and Remedies. You will be In default hereunder If XFS does not receive any Payment within :di ~ays after Its due dat"i!J'lr you breach any other material obllgatton hereunder or any other agreement with XFS. If you default, and such default continues for 10 days after XFS provlde~ptlce to you, XFS may, In addllion to other remedies (lncludlnR disabling ot repossessing the Equipment and/or requesting Supplier to cease performing under the Maintenance Agreemen1~1ptillately require you toldalone or more of the foJ!owlng; (a) as liquidated damages for loss of bargain and not as a penalty, pay the sum of (II all amounts then past due, plus Interest from the due date until paid at the rate of 1.5" per month; (HI the Payments remaining In the Term (Including the fixed maintenance component thereof, If permitted under the Maintenance Agreement)_. discounted at the Dlsc:ount Rate to the date of default, (Ill) the Equipment's booked residual, and (lvl Taxes; and (b) require you to return the Equipment as provided In Sectl ons 6 and 9 hereof. You agree to pay all reasonable costs, Including attorneys' fees a11d disbursements, Incurred by XFS to enforce this Aareement.
15. Risk of Loss and Insurance. You assume and agree to bear the entire ~lsk of loss, theft, destruction or other Impairment of the Equipment upon delivery. You, at your own expense, (II shall keep Equipment Insured against loss ordamaRe at a minimum of full replacement value thereof, and (fll shall carry liabl!lty Insurance a1alnst bodily Injury, lncludln1 death, and against property damage In the amount of at least $2 million {collectively, "Required Insurance•). All such Equipment rass/dama1e Insurance shall be with lender's loss payable to "XFS, Its successors and/or assigns, as their Interests may appear: and shall be with c:ompanles reasonably acceptable to XFS. XFS shall be named as an additional Insured on all llab~lty Insurance policies. The Required Insurance shall provide for 30 days' prior notice to XFS of cancellation. YOU MUST PROVIDE XFS OR OUR DESIGNEES WITH SATISFACTORY WRITTEN EVIDENCE OF REQUIRED INSURANCE Wn'HIN 300AVS OF THE ACCEPTANCE DATE AND ANY SUBSEQUENT WRITTEN REQUEST BY XFS OR OUR DESIGNEES. IF YOU DO NOT DO SO, THEN IN LIEU OF OTHER REMEDIES FOR DEFAULT, XFS 1N OUR DISCRETION ANO AT OUR SOLE OPTION MAY (BUT IS NOT REQUIRED TO) OBTAIN INSURANCE FROM AN INSURER OF XFS'S CHOOSING, WHIOI MAY BE AN XFS AFFILIATE, IN SUCH FORMS AND AMOUNTS AS XFS DEEMS REASONABLE TO PROTECT XFS'S INTERESTS (COLLECTIVELY •EQUIPMENT INSURANCE"). EQUIPMENT INSURANCE Will COVER TffE EQUIPMENT AND XFS; IT Will NOT NAME YOU AS AN INSURED AND MAY NOT COVER All OF YOUR INTEREST IN TffE EQUtpMENT AND Will BE SUBJECT TO CANCELlATION AT ANY TIME.
YOU AGREE TO PAY XFS PERIODIC CHARGES FOR EQUIPMENT INSURANCE (COLLECTIVELY "INSURANCE otARGES"J THAT INCLUDE: AN INSURANCE PREMIUM TffAT MAY BE HIGHER THAN IF YOU MAINTAINED THE REQUIRED INSURANCE SEPARATELY; A FlNANCE CHARGE OF UP TO 1.5" PER MONTH ON ANY ADVANa5 MADE BY XFS OR OUR AGENTS; AND COMMISSIONS, BILLING AND PROCESSING FEES; ANY OR AU OF WHICH MAY GENERATE A PROFIT TO XFS OR OUR AGENTS. XFS MAY ADD INSURANCE CHARGES TO EAot PAYMENT, XFS shall discontinue blllln1 or debiting Insurance Cha111es for Equipment Insurance upon receipt and review of satisfactory evidence of Required Insurance. You must promptly notify XFS of any loss or damage to Equ'pment which makes any Item of Equipment unfit for continued or repalrable use. You hereby Irrevocably appoint XFS as your attorney-In-fact to execute and endorse all checks or drafts In your name to collect under any such Requtred Insurance. Insurance proceeds from Required Insurance or Equipment Insurance received shall be applied, at XFS's option, to Ix) restore the Equipment so that It Is In the same condition as when delivered to you (normal wear and tear excepted), or (y) If the Equipment Is not restorable, to replace It with like-kind condition Equipment from the same manufacturer, or (z) pay to XFS the greater of Ill the total unpaid Payments for the entire Term hereof (discounted to present value at the Discount Rate) plus, If an FMV purchase option fs desl11nated on the first paae hereof, XfS's residual Interest In such Equipment (herein aereed to be 20% of the Equipment's orlalnal cost to XFSJ plus any other amounts due to XFS hereunder, or (II) the Determined FMV Immediately prfor to the loss or damage. NO LOSS OR DAMAGE TO EQUIPMENT, OR XFS'S RECEIPT AND APPLICATION OF INSURANCE PROCEEDS, SHALL RELIEVE YOU OF ANY OF YOUR REMAIN ING OBLIGATIONS UNDER THIS AGREEMENT. Notwithstanding procurement of Equipment Insurance or Required Insurance, you remain primarily liable for performance under lhls Section In the event the applicable Insurance can-I er fails or refuses to pay any dalm. YOU AGREE (II AT XFS'S SOLE ELECTION TO ARBITRATE ANY DISPUTE WITH XFS, OUR AGENTS OR ASSIGNS REGAMIING TffE EQUIPMENT INSURANCE UNDER THE RUlES OF THE AMERICAN ARBITRATION ASSOOATION IN FAIRFIELD COUNlY, CT, (II) THAT IF XFS MAKES THE FOREGOING ElECTION ARBITRATION (NOT A COURT) SHALL BE THE EXa.tJSIVE REMEDY FOR SUCH DISPUTES; AND (Ill) THAT ClA5S ARBITRATION IS NOT PERMITTED, This arbitration option does not apply to any other provision of this Aareement.
16. Finance Lease and customer Waivers. The parties agree this Agreement shall be construed as a "finance lease" under UCC Anlcle 2A. Customer waives Its rights as a leuee under ucc 2A sections 508-522,
17. Authorization of Signer and Credit Review. You represent that you may lawfully enter Into, and perform, this Agreement, that the Individual signing this Agreement on your behalf !las all necessary authority to do so, and that an flnanclal lnformat!op you provide accurately represe11ts your financial condition. You agree to furnish financial Information that XFS may request now, including your Federal Tax ID, and you authorize XFS to obtain credit reports on you In the future should you default or fa~ to make prompt payments hereunder.
18. Original and Sole COntrolllng Document. No Modifications Unless In Writing. This Agreement constitutes ttie entire agreement between the Parties as to the subjects addressed herein, and representations or statements not included herein are not part of this Agreement and are not binding on the Parties. You agree that an executed copy of this Agreement that Is signed by your authorized representative and by XFS's authorized representative (an original manual signature or such signature reproduced by means of a rellable electronic form, such as electronic transmission of a facsimile or electronic signature) shat! be marked •onglnal" by XFS and shall constitute the on!y original document for all purposes. To the extent this Agreement constitutes UCC chattel paper, no security Interest in thls Aareement may be created except by the possession or transfer of the copy mar~ed "orlglnar by XFS. IF A PURCHAS'E ORDER OR OTHER DOCUMENT IS ISSUED BY YOU, NONE OF ITS TERMS AND CONDITIONS SHALL BE BINDING ON XFS, AS THE TERMS AND CONDm ONS OF THIS AGREEMENT EXCLUSIVELY GOVERN THE TRANSACTION DOCUMENTED HEREIN. SUPPLIER AND ITS REPRESENTATIVES ARE NOT OUR AGENTS ANO ARE NOT AUTHORIZED TO MODIFY OR NEGOTIATE THE TERMS OF THIS AGREEMENT, THIS AGREEMENT MAY NOT BE AMENDED OR SUPPLEMENTED EXCEPT IN A WRlmN AGREEMENT SIGNED BY AUTHORIZED REPRESENTATIVES OF THE PARTIES AND NO PROVISIONS CAN BE WAIVED EXCEPT IN A WRITING SIGNED BY XFS, You authorize XFS to Insert or correct missing Information on this Aareement, Including but not limited to your proper legal name, a1reement/numbers, serial numbers and other Equipment Information, so long as there Is no material •mpact to your financial obllgatlons. 19, Govemlng Law, Jurisdiction, Venue and JURY TRIAL WAIVER. THIS AGREEMENT IS GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CONNECTICUT. THEJURISD.ICTION AND VENUE OF ANY ACTION TO ENFORCE THIS AGREEMENT, OR OTHERWISE RELATING TO THIS AGREEMENT, SHALL BE IN A FEDERAL OR STATE COURT IN FAi RFiELD COUNTY, CONNECTICUT OR, EXCLUSIVELY AT XFS'S OPTION, IN ANY OTHER FEDERAL OR STATE COURT WHERE THE EQUIPMENT IS LOCATED OR WHERE XFS'S OR YOUR PRINCIPAL PLACES OF BUSINESS ARE lOCATED, AND YOU HEREBY WAIVE ANY RIGHT TO TRANSFER VENUE. THE PARTIES HEMBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION RElATED TO OR ARISING OUT OF THIS AGREEMENT.
20. Miscellaneous. Your obligations under the "Taxes• and •uabltlty" Sections commence upon execution, and survive the expiration or earlier termination, of this Agreement. Notices hereunder must be Ill wrltl'n11. Notices to you will be sent to the •et1Hng Address• provided on the flrst page hereof, and notices to XFS shall be sent to our address provided on the first page hereof. Notices will be deemed given S days after malling by first class malt or 2 days after sendlnl by natronallv recognlied overnight courier. Invoices are not considered nollces and are not 1ovemed by the notice terms hereof. You authorize XFS to communicate with you by any electron!c means (lnclud1ng cellular phone, email, automatic dialing and recorded messages) using any phone number {Including cellular) or electrontc address you provide to us. If a court finds any term of this Agreement unenforceable, the remaining terms will remain In effect. The failure by either Party to exercb e any right or remedy wlll not constitute a waiver of such right or remedy. If more than one party has signed this Aareement as Customer, each such party agrees that Its llablUty ts joint and several. The followlng four sentences control over every other part of this Agreement: Both Parties will comply with applicable laws. XFS will not charge or collect any amounts In excess of those allowed by applicable law. Any part of this Agreement that would, but for the last four sentences of this Section, be read under any circumstances to allow for a cha111e higher than that allowed under any applicable legal llmlt, Is modified by this Section to limit the amounts chargeable hereunder to the maximum amount allowed under the legal limit. If, in any clrcumsta.,ces, any amount In excess of that allowed by law~ charged or received, any such charge will be deemed llmlted by the amount legally allowed and any amount received by XFS In excesi of that legally allowed wlll be applied by us to the payment of amounts legally owed hereunder or refunded to you.
Pne2 of2 Xf S+FMV•IS-04.lS..18
PrintCare
Managed Print Solutions
CUSTOMER INSTALL
Ful Legal Name
Address
CUSTOMER BILL TO
Name
Address
Phone Contad Name
Monthly Base Maintenanee Payment = S \ '2,.(: .,...... Excess Per Image Charge ~taled '" the below table Cost Per Image Agreement 650 E Hospitalit y L•no, Suite 500 S.o Bornonlloo CA, 92408 Agreement No.
OBA
City St•le Ct>, ZIP
City State CA- ZIP Qs(,, lf
DEFINITIONS! The words Customer, You and Your refer to customer Indicated above. The words Company, We, Us and Our to Image Source.
SERVICES OFFERED; We agree to provide all consumables, along with device environment monitoring, auto toner replenishmen~ proactive service error monitoring phone technical sup po~ service, and quarterly environment reporting under th's Cost Per Image Agreement. Further Information on the Service Management details are stated on the back of this document. Covered equipment, along with Cost Per Image pricing, Is listed In the table above, or separately In Schedule(s) A. and/or B IMAGE CHARGES~ Payments are due monthly, beginning the date the Agreement is lnitiated (as noted by the Agreement date below) or any later date designated by Us (see "Transitional Billing• section below) and continuing on the same day of each lollowing month until fully paid You are entiUed to make the tcrtal number of Images renected In the Monthly Image Allowance shown In the tab,e above, or separately In Schedule(s) A, and/or B, each month (II consolidated), or the monthly amount Image Allowance Per Machine or Group (if not consolidated). II You use more than the applicable Allowance(s) in any month, You will pay Us an additional charge equal to the number or additional metered Images muttiplied by the applicable Excess Per Image Charge. If the meter reading required lor period·c bllling Is not ava lable. Company may bill for use based on an average volume for the most recent 3 months. You agree that We may proportionally Increase Your Per Image Charges at any lime if Our estimated average page coverage is exceeded In any month during the term of this Agreement Each print made that is larger than 145 square inches may register as 2 prints on the meter. In addttion to the foregoing. You agree that effective on eachfany anniversary or this Agreement, We may annually Increase both the Minimum Monthly Payment and lhe Excess Per Image Charge by amounts determined in Our discreUon but not to exceed ten pe,cent (10%) or the then current payment and/or charge In each year. You agree to comply with bll~ng and meter collection procedures designated by Us. Including notilyrng Us of the meter reading on the billing date. If meters are not received. We reserve the right to estimate Your usage for the b~llng perlOd TRANSITIONAL BILLING: If We designate as the Agreement commencement date or effective date a date which Is later tnan the date the Agreement ls/was initialed (as noled by the Agreement Date below). then You shall pay Us an lnterim payment for each day, from the date the Agreement ls/was Initiated until the commencement date, equal to the minimum monthly payment divided by 30. If this Cost Per Image Agreement has no m'nimum monthly amount (as designated in In the table above. or separately in Schedule{s) A, and!or B), We will bill You for actual pages copied or printed from the Agreement ln,tiatioo date until the designated commencement date GOVERNING LAW, CONSENT TO JURISDICTION AND VENUE OF LITIGATION This Agreement and each addendum shall be governed by the laws of the State of Callfomla You agree that any dispute arising under or related to this agreement will be adjudlcated in the federal or state court located In San Bernardino. You hereby consent to personal jurisdiction and venue In that court and waive any right to transfer venue. Each party walves any right to a trial by jury LATE FEES: If any amount payable to Us is nol paid when due, You will pay Us a late charge equal to 1) a rate of 1.5% per month of balance overdue or 2) a minimum or $5 per month.
The Customer will also pay CO:lection costs and reasonable attomey·s fees should the account be placed ror collection.
AGREEMENT PERIOD This agreement Is ror a period of 60 months from the date the Agreement Is Initiated and Is non-cancelable In addition to any other rights under this contract, Company may terminate this contract at any time by giving the Customer 30 day prior written notice. Unless notified In writing 30 days prior to the contract expiration date, this agreement shall renew ro, 12-month periods.
THIS AGREEMENT JS SUBJECT TO THE TERMS AND CONOITIONS PR NTEO ON HIS PA E. THE REVERSE SIDE. AND. IF APPtlCAll.E, A TT ACHED S HEOULE{SJA AND/OR B, ALL OF WHICH PERTAIN TO THIS AGREEMENT ANO WHICH YOU ACKNOWLEDGE HAVING REAO. THIS AGREEMENT IS NOT BINDING UNTIL ACCEPTED BY US. YOU CERTIFY ALL ACTIONS REQUIRED TO AUTHORIZE EXECUTION OF THIS AGREEMENT INCLUDING YOUR AUTHORITY HAVE BEEN FULFILLED.
CUSTOMER. (As Stoted Abovol
natur,
Prln_t N&~J & Ti Pr.nt Nilme & Tlde
Finance Director
PrintCare ~l imageS1Qr~f S~
Managed Print Solutions 650 E Hospitality Lane. Suile500 San Bernardino, CA 92408
I. MAINTENANCE ANO SUPPLIES.
A. Cost Per Image Cllargas. The charges stated rn the Agreement Include charges for maintenance (from 8 am. to 5 pm locaHlme. except weekends and holidays ("Regular Service Hours"), Inspect on. adjus1ment. pans replacement. cleaning material require!! for proper operation. and toner and developer for such Equipment and may also Include charges for such maintenance and supplies provided to You for the Equipment. Paper and staples are not included In lhis maintenance agreement. You must purchase stap•es separately, from Us. Color toner and developer suppl es will be provided for production of pages, with an average 20•4 page coverage. Supplies required for production In e,cess of 20% page coverage will be Invoiced separately. Specialty toner and dry Inks excluded from consumable sup piles. Consumable sup piles exclude any toners and dry Inks (and their associated developers) other than standard cyan magenta. yellow. and black. Specialty toner and dry ,Inks (and their associated developers) must be purchased separately from Us We may charge a fulfillment fee to cover equipment monitor.·ng and supply replenishment and dellvery B. Equipment Ellgible for Coverage. This only applies to the Equipment Identified In the tab:e on page one, or separately In Schedule(s) A, and/or B. You represent and warrant that, other than as set forth in the table on page one. or separately In Schedule(s) A, and/or B, there Is no o1her equ·pment l ocated at Your site(s) capable of using Our supplied toner and Ink consumables. All Equipment capable of using Our suppl.ed toner and il!k consumab"es must be fnctuded in this Agreement, To the best ol Your knowledge. there are no equl,:ment conditions that do no1 meet manufacturer's specifications ('Pre-EJ<1sllng CondiUons"). other than those specificany Identified In the table on page one. or separately In Sc;hedule(s) A and/ or B. You agree that We shall have the ~ ghl to lnspec;t and verify any Equipment covered by this Agreement wh'ch was previously owned by You. We reserve the right, at Our sole discretion, to exclude from thls agreement any Equipment that We determine to have material lalits, and/or to be unfit for service If applicable. We may dlScount the Monthly Base Maintenance Payment by the amount reasonably allocated to any excluded Equipment C. Definition of Services Provided. We agree (a) to pelform only those repairs Involving wom Equipment components that have failed during ordinary use of the Equipment under normal operating conditions (trays, covers and o1her non-consumable parts are not covered). and (b) to supply You with al toner and Ink consumables requlred to operate the Equipment. Requests for services outside of Regular Service Hours will be provided on e best erron basis at Our preva.llng rme and materia'I hourly rate. Sud1 charges for services outside of Regular Serv·ce Hours are in add tlon to the prepaid M nimum Monthly Payment. This Agreement does not cover after.hours service, shop overhauls, and service made necessary by accident. fire, water, natural d'sasters or !allure by You to meet lhe manufadurer's electrical requirements D. Access to Equipment We shall have the right to access Your site anll any other of Your premises that may house Equipment up011 reasonable notio;e for access with Your supervision during regular work hours. We reserve the right to Invoice You at Our prevailing time and material hourly rate, separate from the Minimum Monthly Payment, when access to lhe Equipment is denied for greater than fifteen (15) IT\if!utes, when You Initiated the request for service. We shaU apply an estimated monthly page volume lo any and all Equipment lhat cannot be accessed lor page count recording purposes, E. Authorized Maintenance Providers. We. at Our dlscretron. may authoriZe Our approved maintenance subcontractors or approved servlce providers to perform maintenance and rep,irs to the Equipment. In cases where We manage Your third pany service agreement on Your behalr, then all sums currently due under lhat agreement must be pa d In full berore We will assume any obllgatl.on or responsibility F. Repair Responsibility. Maintenance servkes excludes repairs due to: (a) mJsuse. negled Gt abuse; (b) failure or the installation s'te or the PC or workstaUon used with the Equipment to comply with manuta<:1urer's pub'•shed specifications. (c) use of options, accessories or produ<:1s not serviced by Us, (dl non-1rnage Source alleracons, retocallon. service or supplies; 01 (e) failure to perform operator maintenance procedures Identified In operator manuals. or (I) fa~ure by You lo meet the manuracturer's electrical requirements. Equipment may not be moved to another physical address without Our pJ!or written consent. which sha~ no1 ba unreasonably withheld or delayed, You agree that you wilt no1 lake the Equipment out of service during the Term.
G. Analyst Services. We agree to provide Analyst Services, al no addil~onal charge, for the first 90 days olthls Agreement. Ah 90 UJy!t You ;;g:ce ta pa1 l:ls pe,lbdlc d,arget- . . . . ' . · ~ GaDC,ellalion, ¥ew agfae • •••Me e.nwrwal bl 11•:afjst em f.k.t:J =ma tu me !Q¥J111hEJU e&r&'H by ih1i A;1aoett.
H. Ownership and Control ol Toner and Ink Consumables. AU toner and Ink consumables supplies provided under this Ag eme~t shall al a~ limes remain the property or Us You may use the toner and Ink consumables pursuant to the terms of this Agreement, but You shall not have any ownership righta in or to the toner or Ink consumables. Voll shall not be charged for any toner or rnk consumables In use upon the expiratron of this Agreement, The ordering ot conswnabJes slgnificanUy In excess of the number of copies or prints produced may be charged to Yo11 by Us
l AddlUonal Equipment 1111d Righi of lnspecUon. 1 You shall notify Us promptly upon Installing any adllitlonal equipment ("Additional Equipment'! at Your site capable of using Our supplied toner and In~ consumables Equ pment Installed subsequent to the dale of this Agreement wl be evaluated by Us, and Included in. or exctuded from, this Agreement at the sole discretion of Us z. Additional Equipment deemed Included In the Agreement by Us shall be added to this Agreement and wla automaUcally be covered by and consldered Equipment under the terms of this Agreement. Blll,ngs or surchar11es for Additional Equipment output will be reflected In the bliling cycle Immediately ro, owin11 the billing cycle In which the Addlllonal Equipment Is lnstal'ed. II You add Additional Equ pment, the Minimum Monthly Payment may be adjusted acconllngly. at Our sole dlscreUon, 3, If any such Additional Equipment Is used equlpment. You represent and warrant to Us that, e,cept for Pre-Existing Conditions duly disclosed ta Us prior to such Addlllonal Equipment betng covered by this Agreement, all of the AddiUonal Equipment shall, on the date such coverage commences, be in gaol! wor~lng order. We sha1 be entitled to take a physical Inventory of the Additional Equipment. upon or prior to Its being covered by thls Agreement, to determine Whether they are In work,ng onler, In the event. as of the date coverage commences under thls Agreement, any Addit:onal Equ pment Is not In gooll woJ!tfn!I order, You shall have such Additional Equipment repalred at Your sole expense and. until such Additional Equipment Is so repaired, any Addillonal Equipment with Pre-Existing Conditions shall not be covered under thls Agreement. An lnlt.al meter reading or zero (0) ls agreed. unless You provide timely lnformat,cn to the conlrary, for any Additional Equipment that meets the conditions or Lt
II. WARRANTY Notwtthstandlng anything In this Agreement to the contrary, We warrant (a, that all personnel pelfcrming services hereunder by or on behalf of Us will have appropriate training and experience and (b) all equpment Is In accordance with Industry standanls, and a~ supphes and materials are of good quality, Without limiting the generaltty or the foregoing (and without limiling any obligation of Us to make repairs under this Agreement). You expressly agree and acknowlellge that In no eve'11 shall any manuladurer's warranty. Including but not tlmtted to any lmpl ed warranty of merchantability and fitness for a panicular purpose, be deemed given by or otherwise transferred or app'ied to Us. U You notify Us within ninety (90) days from performance of the services that the services or a pan thereof falls to conform to the standards specified herein.
Your sole and exciuslve remedy Is that We sha I prompUy repair, replace, or re-perform the non-conforming servJces.
Ill. MONITORING SOFTWARE,
A. You grant Pennlsslon to Install and Malnblln Software. We license software ('Monitoring Software·) that enables Us to monitor the usage of, and the copy count produced on •. the Equipment. You agree that We shall have the right, at any time during the term of this Agreement, to Install the Monitoring Software on one or n,ore of Your computer networked statlon(s). You agree to provide Us, during normal business hours, access to Your computer-networked statlon(s) to enable Us to upgrade, modify or maintain the Monitoring Software or to Install new releases or additions to the Monitoring Software. Under no circumstances wi'.I the Monitoring Software provide Us access to Your Information other than Information direcily related to this Agreement. You agree to not delete or remove the Monitoring Software or to alter, modlry or otherwise render II unusable during the term of this Agreement wtthout the prior written consent ol Us. If You disagree, then We retain the right to invoice You the prevailing hourly b11iab'e rate for labor required to obtain meter readings. per meter reading cycle B. No License, other Prohibitions. Nothing herein shall be construed as granting a license to You for the use of the Monkoring Software. You may not, nor may You permit or cause any other person to (a) use or copy the Monitoring Software, In whole or In pan, In any manner, (b) modify. translate, reverse engineer. decompile or dissemble the Monitoring Software, (c) rent. lease. loan, resell distribute. use In a customer-server network to provide third parties access to, or otherwise transfer the Monitoring Software, or (d) remove any proprietary notices on the Monitoring Software.
C. Intellectual Property Rights. All rights (lnciudlng all lntelledual propeny rights. whether recognize!! currently or In the future) In and to the Monkoring Software (lnclud'ng any source code. e•ecutable code. object code, tools and/or l.braries related to the Monitoring Software) will at all times be owned by Us. No modifications and/or use by You of the Monitoring Software shal under any circumstances transfer any right, titre or Interest In or lo the Monilorlng Sol\ware to You or any third pany.
D. Monitoring Software Warranty, Llablllty. You acknDW:iedge that the Monitoring Soflwarew',11 be Installed on Your networked worksta!lon(s) •as Is" without warranty of any kind. either express or lmpt ed, including the implied warranties of merchantability, fitness for a panlc:ular purpose and non-Infringement. We do not warrant that the Monitoring Software will be error rree or will operate without interrupt!on. We shaU In no event be Uab:e to You or any third pany for any special. consequential, Incidental or lndlreci damages in connecilan with the Monitoring Software. If the software Is found to cause Issues on Your network, and these Issues can be reasonably associated to the Installation or the software through uniform sollware testing and tracing methodolog,es, Our liability wm be limijed to the 111moval of said Monitoring Software rrom Your environment.
IV. MISCELLANEOUS.
A. Software. Performance Issues related to Software ancl/or connecilvity are not coverell under the terms of this Agreement. Any warranties related to Software w~1 be lhose offered by the manufadurer and wi:I be passed directly to the user. e. Software/Hardware. Connectivity and performance issues related to Software and non-standanl hardware are not covered unller the terms of this Agreement. Any warranties related to these SIMl(:a.'ttrlll, fllhn-.tfile no1 be llmited to: Xerox ConneciKey Appllcallons, PaperCut. XMedlus Fax.. Umango, Square9, Ysoft, Nuance, Formax, NeoPost. or Xero~»,iny~l>[lfea ~d scanners, wlll be those offered by the manufacturer and passed directly to the user. Operation and conrrgurallon of the Software ,'ijf ~y;;ru1~1!lft'ftlj':~a!f nil al lnstav and operation test Is completed by Us.
Customer Initial & Page 2 of 2 v9 27.19
Model Included Serial Department Lease Maintenance Meter Mo Vol Actual Cost Per Monthly Monthly Number Features Number Location Payment Base Type Included Mo Volume Page Usage Cost Totals 1 Xerox C8035 35ppm B/W 35ppm Color New Police Dept. $1,005.82 $125.00 B/W 0 1,398 $0.0079 $11.04 $1,291.27 Copy / Print / One Touch Color Scan / Fax / 4Tray Color 0 3,049 $0.0490 $149.40 2 Xerox C8055 55ppm B/W 55ppm Color New Administration B/W 0 10,411 $0.0079 $82.25 $120.12 Copy / Print / One Touch Color Scan / Fax / 4Tray Color 0 773 $0.0490 $37.88 3 Xerox B7035 35ppm B/W New Yvonne B/W 0 381 $0.0049 $1.87 $1.87 Copy / Print / One Touch Color Scan / Fax / 4Tray
4 Xerox B7035 35ppm B/W New City Hall - Planning B/W 0 489 $0.0049 $2.40 $2.40 Copy / Print / One Touch Color Scan / Fax / 4Tray
5 Xerox 5955 55ppm B/W Public Works B/W 0 1,500 $0.0049 $7.35 $7.35 Copy / Print / Scan / Fax / 4Tray
6 Xerox B400 DN 47 ppm B/W duplex printer New Maggie B/W 673 $0.0099 $6.66 $8.88 7 Xerox B400 DN 47 ppm B/W duplex printer New Angela B/W 224 $0.0099 $2.22 $2.22 9 Xerox B400 DN 47 ppm B/W duplex printer New Krystle B/W 0 $0.0099 $0.00 $0.00 10 Xerox B400 DN 47 ppm B/W duplex printer New Nancy B/W 0 $0.0099 $0.00 $0.00 Total: $1,005.82 $125.00 B/W Vol 15,076 Col Vol. 4,046 Monthly Total: $1,434.10 Model Included Serial Department Lease Maintenance Meter Mo Vol Actual Cost Per Monthly Monthly Number Features Number Location Payment Base Type Included Mo Volume Page Usage Cost Totals 1 Xerox C8035 35ppm B/W 35ppm Color Police Dept. $1,390.62 $100.00 B/W 0 1,398 $0.0079 $11.04 $1,651.07 Copy / Print / One Touch Color Scan / Fax / 4Tray Color 0 3,049 $0.0490 $149.40 2 Xerox C9070 70ppm B/W 70ppm Color Administration B/W 0 10,411 $0.0079 $82.25 $120.12 Copy / Print / One Touch Color Scan / Fax / 4Tray Color 0 773 $0.0490 $37.88 3 C405 36ppm B/W 36ppm Color Yvonne B/W 0 381 $0.0099 $3.77 $3.77 Copy / Print / Color Scan / Fax Color 0 0 $0.9900 $0.00 4 Xerox C8055 55ppm B/W 55ppm Color City Hall - Planning B/W 0 489 $0.0079 $3.86 $3.86 Copy / Print / One Touch Color Scan / Fax / 4Tray Color 0 0 $0.0490 $0.00 5 Xerox B7035 35ppm B/W Public Works B/W 0 1,500 $0.0049 $7.35 $7.35 Copy / Print / Scan / Fax / 4Tray
6 Xerox B400 DN 47 ppm B/W duplex printer Krystle B/W 673 $0.0099 $6.66 $8.88 7 Xerox B400 DN 47 ppm B/W duplex printer Maggie B/W 224 $0.0099 $2.22 $2.22 Total: $1,394.40 $100.00 B/W Vol 13,576 Color Vol 3,822 Monthly Total: $1,797.27 Pricing Valid through June 30th, 2022 MONTHLY SAVINGS -$363.17 Price does not include applicable sales tax ANNUAL SAVINGS -$4,358.06 TERM SAVINGS -$21,790.32
Xerox ConnectKey Technology - including Apple AirPrint, benchmark security, one touch scanning, application defaults & much more! Includes Analyst services at no additional charge for 90 days after installation Scott Dobyns, Region Vice President . [email protected] . Ph. 909-890-4040 ext. 25605 Image Source Total Satisfaction Guarantee
Includes all maintenance, supplies, parts, toner, labor, equipment delivery, setup, and staff training (excluding paper and staples) Current Situation
63 Month FMV
Proposed Solution
63 Month FMV
Immediate Advantages:
Removal of your current Toshiba leased equipment
Certified pre -
owned
CITY COUNCIL OF THE CITY OF FOWLER
ITEM NO: 6-H
REPORT TO THE CITY COUNCIL
August 16, 2022
FROM THOMAS W. GAFFERY IV, Community & Economic Development Director ANGELA VASQUEZ, Deputy City Clerk
SUBJECT
APPROVE Statement of Work Agreements with CivicPlus in the amount of $14,104 for website and meeting management design and two (2) years of service, and authorize the City Manager to execute related documents.
RECOMMENDATION
Staff recommend the City Council approve the above proposed action.
BACKGROUND
The City currently uses CivicPlus (formerly Municode) for codification services. The City does not currently have an automated workflow for meeting and agenda management. The City’s current website is outdated, not mobile-friendly, and has ADA accessibility issues. Additionally, the current website requires City staff to contact the vendor for any changes, including simple tasks like uploading agendas.
The CivicPlus interface will allow City staff to directly make simple changes using a web interface. After the branding and marketing vendor has completed their work, staff will be able to work with CivicPlus to make any necessary updates to the City’s website templates.
ENVIRONMENTAL REVIEW
This action does not constitute a “project” pursuant to the California Environmental Quality Act.
Approve agreements with CivicPlus
August 16, 2022
FISCAL IMPACT
On August 2, 2022, City Council approved Resolution No. 2581 appropriating funding funds for this scope of work.
CONFLICT OF INTEREST
Staff is not aware of any conflicts of interest.
Attachments
- Statement of Work: Municode Meetings
- Statement of Work: Municode Web Premium
CivicPlus
302 South 4th St. Suite 500
Manhattan, KS 66502
US
Quote #: Q-27983-1
Date: 8/9/2022 9:29 AM
Expires On: 11/7/2022
Product: CivicClerk
Client:
Fowler CA - CivicClerk
Bill To:
Fowler CA - CivicClerk
SALESPERSON Phone EMAIL DELIVERY METHOD PAYMENT METHOD
Christopher Rogers x [email protected] Net 30
CivicClerk - Statement of Work
QTY PRODUCT NAME DESCRIPTION PRODUCT
TYPE
1.00 Municode Meetings Premium –
One-Time Build Cost
Municode Meetings Premium – One-Time Build Cost One-time
1.00 Municode Meetings Premium
Annual
Municode Meetings Premium Annual Renewable
1.00 Municode Meetings Additional
Meetings Bodies
Municode Meetings Additional Meetings Bodies Renewable
List Price - Year 1 Total USD 4,500.00
Total Investment - Year 1 USD 3,600.00
Annual Recurring Services - Year 2 USD 3,780.00
Total Days of Quote:365
1. This Statement of Work ("SOW") shall be subject to the terms and conditions of the CivicPlus Master Services Agreement located at https://www.civicplus.com/master-services-agreement (“MSA”), to which this SOW is hereby attached as the CivicClerk Statement of Work. By signing this SOW, Client expressly agrees to the terms and conditions of the MSA throughout the Term of this SOW.
2. This SOW shall remain in effect for an initial term equal to 365 days from the date of signing (“Initial Term”). In the event that neither party gives 60 days’ notice to terminate prior to the end of the Initial Term or any subsequent Renewal Term, this SOW will automatically renew for an additional 1-year renewal term (“Renewal Term”). The Initial Term and all Renewal Terms are collectively referred to as the “Term”.
3. The Total Investment - Year 1 will be invoiced at signing of this SOW. Client will pay all invoices within 30 days of the date of invoice.
V. PD 06.01.2015-0048
4. Annual Recurring Services shall be invoiced on the start date of each Renewal Term. Annual Recurring Services, including but not limited to hosting, support and maintenance services, shall be subject to a 5% annual increase beginning in year 2 of service.
5. Client shall have sole control and responsibility over the determination of which data and information shall be included in the content that is to be transmitted and stored by CivicPlus. Client shall not provide to CivicPlus or allow to be provided to CivicPlus any content that (a) infringes or violates any 3rd party’s Intellectual Property rights, rights of publicity or rights of privacy, (b) contains any defamatory material, or (c) violates any federal, state, local, or foreign laws, regulations, or statutes.
6. The scope of the initial implementation services to be delivered by CivicPlus are as listed above. Client is responsible for providing all information required for the configuration of the services in accordance with the scope and project timeline.
7. Upon Go-Live, any unused implementation services (ie: board configuration) will expire. Any configuration of additional boards by CivicPlus after Go-Live may incur additional one-time charges based on the scope of the desired configuration, design, and training services.
8. Completion of implementation services will be determined by Go Live status. The parties agree to cooperate in a timely manner to complete all implementation tasks and deliverables in order to obtain Go-Live status of the services.
CivicPlus will make reasonable efforts to confirm Go Live status with the Client, but reserves the right to deem Client’s use of the services in the intended course of business as Go Live. “Go-Live” is defined as the Client’s use of the services implemented by CivicPlus under this SOW for the intended purpose and with the intended audience.
Signature Page to follow.
V. PD 06.01.2015-0048
Acceptance
By signing below, the parties are agreeing to be bound by the covenants and obligations specified in this SOW and the MSA terms and conditions found at: https://www.civicplus.com/master-services-agreement.
IN WITNESS WHEREOF, the parties have caused this SOW to be executed by their duly authorized representatives as of the dates below.
Client CivicPlus
By:
___________________________________
By:
___________________________________
Name:
___________________________________
Name:
___________________________________
Title:
___________________________________
Title:
___________________________________
Date:
___________________________________
Date:
___________________________________
V. PD 06.01.2015-0048
Contact Information
*all documents must be returned: Master Service Agreement, Statement of Work, and Contact Information Sheet.
Organization URL
________________________________________________________________________________________________________________________ Street Address
________________________________________________________________________________________________________________________ Address 2
________________________________________________________________________________________________________________________ City State Postal Code
________________________________________________________________________________________________________________________ CivicPlus provides telephone support for all trained clients from 7am –7pm Central Time, Monday-Friday (excluding holidays).
Emergency Support is provided on a 24/7/365 basis for representatives named by the Client. Client is responsible for ensuring CivicPlus has current updates.
________________________________________________________________________________________________________________________ Emergency Contact & Mobile Phone
________________________________________________________________________________________________________________________ Emergency Contact & Mobile Phone
________________________________________________________________________________________________________________________ Emergency Contact & Mobile Phone
________________________________________________________________________________________________________________________ Billing Contact E-Mail
________________________________________________________________________________________________________________________ Phone Ext. Fax
________________________________________________________________________________________________________________________ Billing Address
________________________________________________________________________________________________________________________ Address 2
________________________________________________________________________________________________________________________ City State Postal Code
________________________________________________________________________________________________________________________ Tax ID # Sales Tax Exempt #
________________________________________________________________________________________________________________________ Billing Terms Account Rep
________________________________________________________________________________________________________________________ Info Required on Invoice (PO or Job #)
________________________________________________________________________________________________________________________ Are you utilizing any external funding for your project (ex. FEMA, CARES): Y [ ] or N [ ] Please list all external sources: _______________________________________________________________________________________________ Contract Contact Email
________________________________________________________________________________________________________________________ Phone Ext. Fax
________________________________________________________________________________________________________________________ Project Contact Email
________________________________________________________________________________________________________________________ Phone Ext. Fax
________________________________________________________________________________________________________________________ V. PD 06.01.2015-0048
CivicPlus
302 South 4th St. Suite 500
Manhattan, KS 66502
US
Quote #: Q-27975-1
Date: 8/8/2022 5:03 PM
Expires On: 11/6/2022
Product: CivicEngage
Client:
Fowler CA - CivicEngage
Bill To:
Fowler CA - CivicEngage
SALESPERSON Phone EMAIL DELIVERY METHOD PAYMENT METHOD
Christopher Rogers x [email protected] Net 30
CivicEngage - Statement of Work
QTY PRODUCT NAME DESCRIPTION PRODUCT
TYPE
1.00 Municode Web Premium Civic
Open Subscription
Municode Web Premium Civic Open Subscription Renewable
1.00 Municode Web Premium Civic
Open Build
Premium Municode Web Civic Open Build: Standard
Design, 150 pages migration, 3yrs meetings migration, 3 1hr virtual training sessions
One-time
List Price - Year 1 Total USD 4,100.00
Total Investment - Year 1 USD 3,280.00
Annual Recurring Services - Year 2 USD 3,444.00
Total Days of Quote:365
1. This Statement of Work ("SOW") shall be subject to the terms and conditions of the CivicPlus Master Services Agreement located at https://www.civicplus.com/master-services-agreement (“MSA”), to which this SOW is hereby attached as the CivicEngage Statement of Work. By signing this SOW, Client expressly agrees to the terms and conditions of the MSA throughout the Term of this SOW.
2. This SOW shall remain in effect for an initial term equal to 365 days from the date of signing (“Initial Term”).
In the event that neither party gives 60 days’ notice to terminate prior to the end of the Initial Term, or any subsequent Renewal Term, this SOW will automatically renew for an additional 1-year renewal term (“Renewal Term”). The Initial Term and all Renewal Terms are collectively referred to as the “Term”.
3. The Total Investment - Year 1 will be invoiced upon signing of this SOW.
4. Annual Recurring Services shall be invoiced on the start date of each Renewal Term. Annual Recurring Services, including but not limited to hosting, support and maintenance services, shall be subject to a 5% annual increase beginning in year 2 of service. Client will pay all invoices within 30 days of the date of such invoice.
V. PD 06.01.2015-0048
5. Client agrees that CivicPlus shall not migrate, convert, or port content or information that could reasonably be construed as time sensitive, such as calendar or blog content, during the Project Development.
6. If a Recurring Redesign line item is included with the Client's quote in this SOW, starting after 48 months of continuous service under this SOW, Client shall be entitled to receive a redesign at no additional cost. Client may initiate such redesign any time after 48 months of continuous service. Upon the initiation of an eligible redesign project, Client may begin accumulating eligibility towards a subsequent redesign after another 48 months of continuous service. Redesigns that include additional features not available on the original website may be subject to additional charges. Additional features include, but are not limited to, additional modules and integration of third-party software. Recurring Redesigns are eligible for the website, subsite, and department headers included in this SOW only. Any subsequently purchased website, subsite, and department header shall not be included in a redesign hereunder.
7. Client allows CivicPlus to display a “Government Websites by CivicPlus” insignia, and web link at the bottom of their web pages. Client understands that the pricing and any related discount structure provided under this SOW assumes such perpetual permission.
Signature Page to Follow.
V. PD 06.01.2015-0048
Acceptance
By signing below, the parties are agreeing to be bound by the covenants and obligations specified in this SOW and the MSA terms and conditions found at: https://www.civicplus.com/master-services-agreement.
IN WITNESS WHEREOF, the parties have caused this SOW to be executed by their duly authorized representatives as of the dates below.
Client CivicPlus
By:
___________________________________
By:
___________________________________
Name:
___________________________________
Name:
___________________________________
Title:
___________________________________
Title:
___________________________________
Date:
___________________________________
Date:
___________________________________
V. PD 06.01.2015-0048
Contact Information
*all documents must be returned: Master Service Agreement, Statement of Work, and Contact Information Sheet.
Organization URL
________________________________________________________________________________________________________________________ Street Address
________________________________________________________________________________________________________________________ Address 2
________________________________________________________________________________________________________________________ City State Postal Code
________________________________________________________________________________________________________________________ CivicPlus provides telephone support for all trained clients from 7am –7pm Central Time, Monday-Friday (excluding holidays).
Emergency Support is provided on a 24/7/365 basis for representatives named by the Client. Client is responsible for ensuring CivicPlus has current updates.
________________________________________________________________________________________________________________________ Emergency Contact & Mobile Phone
________________________________________________________________________________________________________________________ Emergency Contact & Mobile Phone
________________________________________________________________________________________________________________________ Emergency Contact & Mobile Phone
________________________________________________________________________________________________________________________ Billing Contact E-Mail
________________________________________________________________________________________________________________________ Phone Ext. Fax
________________________________________________________________________________________________________________________ Billing Address
________________________________________________________________________________________________________________________ Address 2
________________________________________________________________________________________________________________________ City State Postal Code
________________________________________________________________________________________________________________________ Tax ID # Sales Tax Exempt #
________________________________________________________________________________________________________________________ Billing Terms Account Rep
________________________________________________________________________________________________________________________ Info Required on Invoice (PO or Job #)
________________________________________________________________________________________________________________________ Are you utilizing any external funding for your project (ex. FEMA, CARES): Y [ ] or N [ ] Please list all external sources: _______________________________________________________________________________________________ Contract Contact Email
________________________________________________________________________________________________________________________ Phone Ext. Fax
________________________________________________________________________________________________________________________ Project Contact Email
________________________________________________________________________________________________________________________ Phone Ext. Fax
________________________________________________________________________________________________________________________ V. PD 06.01.2015-0048
CITY COUNCIL OF THE CITY OF FOWLER
ITEM NO: 6-I
REPORT TO THE CITY COUNCIL
August 16, 2022
FROM DAWN E. MARPLE, City Planner
SUBJECT
ADOPT Ordinance No. 2022-06, repealing Chapter 3, of Title 9 of the Fowler Municipal Code to consolidate and clarify setback standards.
RECOMMENDATION
Ordinance 2022-06 was introduced by unanimous approval of the City Council on August 2, 2022. It is recommended that the Ordinance be adopted.
BACKGROUND
This item was introduced at the August 2, 2022 City Council meeting.
Chapter 5, of Title 9 of the Fowler Municipal Code, adopted in 2009, is known as the City’s Zoning Ordinance. It contains the necessary regulations to ensure that the City grows in an orderly manner.
Chapter 3, of Title 9 of the Fowler Municipal Code, adopted in 1951, is part of the Planning and Zoning Title, but contains provisions that conflict with Chapter 5, which was adopted many years later.
Chapter 3 defines a “structure” as one that includes, among other things, fences and swimming pools.
Therefore, fences and swimming could not be located within front and rear yards, respectively, which conflicts with both the standards within Chapter 5 and the legislative body’s later expressed intent with the adoption of Chapter 5 in 2009.
Duplicative provisions include zoning violations, variances, zone map amendments, appeals, and nonconforming structures. Repealing Chapter 3 would ensure fewer conflicts and ensure that both City staff and the public can more easily understand, interpret, apply, and implement the City’s Zoning regulations.
Actions Pertaining to Planning Case Number 22-0028
August 16, 2022
The table below provides a summary of each section in Chapter 3, with each corresponding section in Chapter 5.
Chapter 3
Section
Description Chapter 5 Section
9-3.01 Introduces this Chapter as the “Setback Law of the City of Fowler”
9-5.102, Short Chapter
9-3.02 Allows for the adoption of a “precise plan” that limits where buildings and other improvements can be
located.
Article 3, Establishment of Zoning
Districts
9-3.03 Intention of Setback Law 9-5.101, Purpose
9-3.04 Defines terms used in Chapter 3. Defines “building” as including fences and swimming pools.
Article 2, Definitions
9-3.05 Allows for the adoption of setback lines and allows them to be modified
9-5.420, Amendment of Zoning
Map and 9-5.421 and .422, Allows
for zoning amendments
9-3.06 Grants authority of Variances to recommend by
Planning Commission and approval by City Council
Article 27, Variances and Minor
Deviations
9-3.07 Granting or denial criteria of Variances
9-3.08 Variance procedures
9-3.09 Legal nonconforming procedures Article 29, Nonconforming Uses 9-3.10 Allows for amendments to Chapter 3 9-5.420, Amendment of Zoning Map and 9-5.421 and .422, Allows
for zoning amendments
9-3.11 Appeal procedures 9-5.418 and .419, Appeals
9-3.12 Public nuisances 9-5.107, Code Enforcement, and
9-5.110, Penalties for Violation
ENVIRONMENTAL FINDINGS
Planning Case Number 22-0028 has been reviewed pursuant to the California Environmental Quality Act (CEQA), and has been determined to be exempt pursuant from environmental review pursuant to CEQA Guidelines Section 15061(b)(3).
Actions Pertaining to Planning Case Number 22-0028
August 16, 2022
FISCAL IMPACT
Staff do not anticipate any fiscal impact due to this ordinance.
CONFLICT OF INTEREST
Staff is not aware of any conflicts of interest.
Attachments:
- Ordinance No. 2022-06
ORDINANCE 2022-06
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FOWLER REPEALING CHAPTER 3, OF TITLE 9 OF THE FOWLER MUNICIPAL CODE REGARDING
SETBACK STANDARDS, AND TO ADOPT AN EXEMPTION UNDER CEQA GUIDELINES SECTION 15061, SUBDIVISION (B)(3).
WHEREAS, on February 3, 2009, the City Council of the City of Fowler adopted Ordinance No. 2009-01, amending Chapter 5, of Title 9 of the Fowler Municipal Code, which was a comprehensive update to the City’s Zoning Ordinance and is referred to as the City’s “Zoning Ordinance”; and
WHEREAS, Chapter 3, of Title 9 of the City’s Municipal Code, referred to as the City’s “Setback Law”, contains a conflicting definition of a “structure”, resulting in conflicting interpretations within the Zoning Ordinance; and
WHEREAS, the Planning Commission adopted Resolution No. 675, on July 7, 2022, recommending that the City Council adopt an ordinance to repeal Chapter 3, of Title 9 of the Fowler Municipal Code; and
WHEREAS, the City Council desires to repeal Chapter 3, of Title 9 of the Fowler Municipal Code to ensure consistent and streamlined interpretations of the City’s Zoning Ordinance.
THE CITY COUNCIL OF THE CITY OF FOWLER DOES ORDAIN AS FOLLOWS:
SECTION 1: Chapter 3, of Title 9 of the Fowler Municipal Code is hereby repealed in its entirety. 9-3.01 Title.
This chapter shall be known as the "Setback Law of the City of Fowler". 9-3.02 Precise plan: Adoption and purpose.
There is hereby adopted a precise plan limiting the location of buildings and other improvements with respect to existing or planned rights-of-way pursuant to the authority of the Zoning and Planning Law of the State for the purpose of implementing the General Plan of the City, and to furnish a guide for the orderly physical growth and development
of the City, and to promote and protect the public health, safety, and general welfare. Such specific plan may be developed progressively by the addition thereto from time to time, in the manner prescribed by law, of detailed plans for certain streets or highways. 9-3.03 Scope.
The provisions of this chapter are intended to:
(a) Regulate the future location of buildings and other improvements so as to furnish sufficient visibility for the safe operation of vehicles upon, and entering into, streets and highways and sufficient visibility and places of safety for pedestrians in present and future rights-of-way; and
(b) Regulate the future location of buildings and other improvements so that such buildings and other improvements shall conform to the zoning provisions set forth in Chapter 5 of this title with relation to the distance from the lot line determined by the new right-of-way line when street or highway rights-of-way are extended to the specific plan lines.
9-3.04 Definitions.
For the purposes of this chapter, unless otherwise apparent from the context, certain words and phrases used in this chapter are defined as follows:
(a) "Building" shall mean any building, structure, or installation, whether located in, on, over, or under the ground, and shall include, but shall not be limited to, the following: walls, fences other than open fences, wells for water, oil, or other
hydrocarbon products, tanks, off-street parking spaces or facilities required by any law of the City, and swimming pools. "Building" shall not include or apply to the following: trees, shrubs, agricultural crops, open fences, public utilities installed pursuant to the provisions of law or a franchise, walks, driveways, irrigation pipes and related fixtures, off-street parking facilities or spaces not required by laws of the City, streets, curbs, and other municipal facilities or installations. (b) "Commission" shall mean the Planning Commission of the City. (c) "Improvement" shall have the same meaning as "building", as defined in subsection (a) of this section.
(d) "Open fence" shall mean a fence, fifty (50%) percent or more of the surface of which is open to the passage of light and vision on either any and all horizontal planes, or any and all vertical planes, perpendicular to the vertical surface thereof. (e) "Setback line" shall mean that line, measured from the specific plan line, beyond which no building or improvement would be permitted to be erected or constructed pursuant to the zoning provisions set forth in Chapter 5 of this title if the lot line, as defined in the zoning provisions, were the same as the specific plan line. (f) "Specific plan line" shall mean a line indicating the exterior boundary of the proposed right-of-way of any street or highway on any map on which the specific plan is expressed.
(g) "Verification" shall mean and include a declaration under penalty of perjury. 9-3.05 Setback lines: Establishment: Amendments: Authority.
A specific plan establishing a setback line shall be adopted by means of a map or a written statement, or by a combination of a map and a written statement, which shows or describes such line. Such maps and written statements shall be as much a part of this chapter as if the matters and information set forth on them were fully described in this chapter. Such maps and written statements shall be kept on file in the office of the City Clerk. Additional setback lines may be adopted, and changes in the established lines may be made by adding new maps, amendments to all or parts of maps, and written statements, or combinations of the same.
Such maps may be divided into parts and subparts, which may be separately shown or employed for the purposes of amending such maps.
9-3.06 Variances: Authority of Commission.
(a) All duties with respect to the hearings, considerations, and recommendations for variances from the provisions of this chapter are hereby assigned and delegated to the Commission pursuant to the provisions of Article 12 of Chapter 3 of Title 7 of the Government Code of the State (Sections 65700 et seq.) and Article 10 of Chapter 5 of this title.
(b) The Commission shall have the authority to grant variances to the setback lines established pursuant to the provisions of this chapter and to specify the terms and conditions thereof, subject to the final approval of the Council. Any such variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privilege inconsistent with the
limitations upon other properties in the vicinity in which the subject property is situated and such other conditions as the Commission shall deem necessary to carry out the purposes of this chapter. Any action by the Commission and Council in such cases shall be by resolution.
9-3.07 Variances: Granting or denial: Criteria.
(a) Variances to the setback lines established pursuant to the provisions of this chapter shall be granted if the applicant shows, and the Commission finds, that any of the following is true:
(1) That because of special circumstances applicable to the subject property, including size, shape, topography, or location, the strict application of the provisions of this chapter would deprive the subject property of privileges enjoyed by a substantial number of other properties in the vicinity and fronting on the same street or highway;
(2) That the nature of the property of the applicant is such that he will be substantially damaged unless the proposed building or improvement is authorized;
(3) That the property of the applicant will not earn a fair return on the investment of the applicant unless the proposed building or improvement is authorized; or
(4) That, balancing the interests of the public in effecting the purposes of the provisions of this chapter against the interests of the applicant in using his
property with the proposed building or improvement thereon, the granting of the variance is required by consideration of justice and equity. (b) Such variance shall not be granted if the Commission shall find that any of the following is true:
(1) That the applicant will not be substantially damaged by locating the proposed building or other improvement at a point on his property behind the setback line; or
(2) That, balancing the interests of the public in effecting the purposes of this chapter against the interests of the applicant in using his property with the proposed building or improvement thereon, the resulting disadvantages to the public would be unreasonably disproportionate to the advantages to the applicant to be derived from so using his property.
9-3.08 Variances: Procedure.
(a) Initiation. Variances to the setback lines established pursuant to the provisions of this chapter shall be initiated by the verified application of any owner of property claiming to be entitled to a variance therefor, or of his agent, which application shall be filed with the Commission.
(b) Commission hearings: Notices. The Commission shall hold at least one public hearing on the matter of an application for such variance. Notice of the time and place of such hearing shall be given by at least one publication in a newspaper of general circulation in the City at least ten (10) days before the hearing and by such other means as the Commission may deem necessary.
(c) Commission hearings: Continuance. Any such hearing may be continued by the vote of the majority of the members present at such hearing who may fix a time and place to which such hearing shall be so continued, even in the absence of a quorum, in which case the presiding officer at such hearing shall publicly announce, prior to the conclusion of the hearing, the time and place to which the hearing is to be continued, and no further notice shall be required.
(d) Commission hearings: Quorum: Voting. The number of members necessary for a quorum, and the number of votes necessary for the adoption of any resolution granting or denying such variance, shall be a majority of the total voting membership of the Commission. All other matters shall be determined by the majority vote of the members present.
(e) Commission hearings: Reports of investigations. The Commission may consider at such hearing any report of any investigation by a committee of one or more members of the Commission, or its staff, authorized by the Commission in its discretion.
(f) Commission hearings: Granting: Filing with Council. Within thirty (30) days after the adoption of a resolution granting such variance, the Commission shall file a copy of such resolution with the Council.
(g) Council hearings. Within thirty (30) days after the receipt of a copy of such resolution, the Council shall consider such resolution at a public meeting. No notice of the consideration of such matter shall be required.
(h) Council hearings: Decisions. The approval or disapproval by the Council of the granting of such variance, or of any conditions attached to such variance, shall be upon the grounds set forth in Section 9-3.07 of this chapter. The Council may impose new or different conditions to the granting of the variance. The action of the Council shall be final.
(i) Automatic granting. If the Council fails to adopt a resolution approving or disapproving the granting of such variance, or imposing a new or different condition to the granting thereof, within thirty (30) days after the date of the receipt of the copy of the resolution of the Commission by the City Clerk, then such variance shall be deemed to be granted with the conditions as provided in the resolution of the Commission.
9-3.09 Effect of provisions.
(a) Location of buildings and other improvements. On and after May 16, 1974, it shall be unlawful to erect or locate any building or other improvement:
(1) Within the space between a setback line and the adjacent street right-of-way line; or
(2) Within the space between adjacent setback lines.
(b) Controlling provisions. In the event the provisions of this chapter impose more stringent restrictions on the erection or location of buildings or improvements than may be imposed or required by any other law, rule, or regulation or by any easement, covenant, or agreement, then the provisions of this chapter shall control.
(c) Subdivisions. The street and highway design and the location of right-of-way lines in any subdivision falling under the provisions of the Subdivision Map Act of the State, or under the provisions of any law of the City controlling subdivisions and/or divisions of land other than subdivisions, shall be based on the specific plan lines established pursuant to the provisions of this chapter. (d) Zoning and setback lines. All building setback lines designated by the zoning provisions set forth in Chapter 5 of this title shall be measured from the specific plan lines set forth on the maps thereof. Building setback lines shall be that distance from the specific plan lines as designated for the respective zone classifications in the zoning provisions.
(e) Nonconforming buildings and improvements. Any building or other improvement existing on April 16, 1974, the erection of which would be contrary to the provisions of this chapter, may continue with reasonable maintenance; provided, however, such nonconforming buildings or improvement shall not be moved, enlarged, or reconstructed except in a manner which shall cause such nonconforming building or improvement to conform to the provisions of this chapter, except to replace any portion destroyed by fire or other casualty which destroys not more than seventy-five (75%) percent of its reasonable value. 9-3.10 Amendments.
The procedure for the adoption of amendments to the provisions of this chapter shall be as set forth in Article 11 of Chapter 3 of Title 7 of the Government Code of the State (Sections
65650 et seq.), and otherwise under the applicable provisions of this chapter, if any, not in conflict therewith.
9-3.11 Appeals.
(a) Filing. Any applicant not satisfied with the action of the Commission, or whose application has been denied, or whose application has not been finally acted upon by the Commission within a period of sixty (60) days after the filing of the application may file an appeal in writing with the Council within ten (10) days after the final action of the Commission, or within sixty (60) days after the filing of such application in the case of no final action, and the Council shall hold a public hearing with respect thereto.
(b) Hearings. Such public hearing shall be conducted within thirty (30) days after the filing of such written appeal, and the final decision of the Council shall be made within thirty (30) days after the public hearing. The failure of the Council to take final action within sixty (60) days after the date of the filing of the written appeal shall be deemed to be a denial of the appeal.
(c) Hearings: Notices. Notice of the time and place of such hearing shall be given by at least one publication in a newspaper of general circulation in the City at least ten (10) days prior to the hearing.
(d) Decisions. On such appeal, the Council may grant the variance, deny the granting of such variance, or attach conditions thereto upon the grounds set forth in Section 9-3.07 of this chapter.
9-3.12 Public nuisances.
(a) Any building or other improvement erected, located, or maintained contrary to the provisions of this chapter shall be and the same is hereby declared to be unlawful and a public nuisance.
(b) Any act or condition declared to be unlawful and a public nuisance shall be subject to the abatement and cost recovery proceedings set forth in Title 5, Chapters 21, 22 and 23.
SECTION 2. The City Council has determined that the Project is exempt from the California Environmental Quality Act under CEQA Guidelines Section 15061, subdivision (b)(3) (Common Sense Exemption).
SECTION 3. This Ordinance shall take effect thirty (30) days after its adoption.
SECTION 4. The City Clerk is further directed to cause this ordinance or a summary of this ordinance to be published once in a newspaper of general circulation published and circulated within the City of Fowler, within fifteen (15) days after its adoption. If a summary of the ordinance is published, then the City Clerk shall cause a certified copy of the full text of the proposed ordinance to be posted in the office of the City Clerk at least five (5) days prior to the City Council meeting at which the ordinance is adopted and again after the meeting at which the ordinance is adopted. The summary shall be approved by the City Attorney. * * * * * * * * * *
The foregoing ordinance was introduced at a regular meeting of the City Council held on August 2, 2022, and was adopted at a regular meeting of said Council held on August 16, 2022, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
APPROVED:
___________________________
Mark Rodriquez, Mayor Pro-Tem
ATTEST:
____________________________
Angela Vasquez, Deputy City Clerk
CITY COUNCIL OF THE CITY OF FOWLER
ITEM NO: 6-J
REPORT TO THE CITY COUNCIL
August 16, 2022
FROM: DAWN E. MARPLE, City Planner
SUBJECT
ADOPT Ord No. 2022-07 amending Section 9-5.1605, of Chapter 5, of Title 9 of the Fowler Municipal Code.
RECOMMENDATION
Ordinance 2022-07 was introduced by unanimous approval of the City Council on August 2, 2022. It is recommended that the Ordinance be adopted.
BACKGROUND
This item was introduced at the August 2, 2022 City Council meeting.
Staff has determined that the existing Zoning Ordinance is inconsistent with the Subdivision Ordinance and the General Plan, and recommends adopting a text amendment of the Zoning Ordinance to remove the inconsistency.
The City of Fowler Zoning Ordinance is designed to implement the goals, objectives, and policies of the Fowler General Plan. The General Plan seeks to develop 1 acre of community park space per 1,000 residents, and 2 acres of neighborhood park space per 1,000 residents.
The Zoning Ordinance requires residential subdivisions provide five percent of the developable area as open space. Open space is flexibly defined, and includes parks. Additionally, the Zoning Ordinance allows single-family residential developers to seek reimbursement of up to fifty (50) percent of the open space value. The typical result seen are neighborhood parks whose construction value is double the amount of the City’s Park and Recreation Impact Fees that would be collected from the developer of the subdivision. As such open space is currently reimbursed at 50% of the cost, no Park Impact Fees are collected and thus no funding goes towards the acquisition and construction of regional community parks. This frustrates the objectives of the General Plan.
Actions Pertaining to Planning Case Number 22-0027
August 16, 2022
The Subdivision Ordinance already has provisions to accommodate necessary Quimby Act reimbursements in compliance with California Government Code, such as when development is proposed on land designated for a Community Park. Additionally, the City’s Parks and Recreation Facilities Impact Fee is intended to fund the acquisition and development of community park space.
This proposed amendment to the Zoning Ordinance will clarify the amount of open space required to be implemented in single-family residential subdivisions by specifying the amount desired by the General Plan. Additionally, it removes the reimbursement provision. Below is a table that describes the typical open space and parks cost differences between the existing provisions of the Zoning Ordinance, and that which is proposed.
Typical Effects of a 100-lot Subdivision
Existing Proposed
Parks Impact Fees Generated1 $309,157 $309,157
Open Space Construction Cost $618,314 $309,157
Open Space Cost Reimbursed2 $309,157 $0
Total Developer Cost $309,157 $309,157
Total Parks Impact Fees Collected $0 $309,157
1 $3,091.57 per dwelling unit
2 50% of open space value
In summary, the existing Zoning Ordinance is inconsistent with the Subdivision Ordinance and frustrates the objectives of the General Plan. The proposed ordinance would remove inconsistencies with the Subdivision Ordinance and align with the following General Plan policies of the Land Use Element:
• Section 4.3, Residential Land Use, Policy 16: All residential projects shall provide usable open space within the boundaries of the development. This open space shall be in addition to any development fees paid for neighborhood or community park space. b. Within single family projects, either attached or detached, a minimum of 5% of the project site shall be developed with usable open space which could include common recreation areas, mini-parks, common green belts/recreation trails, and landscaping. Such open space shall be maintained by assessment district, landscape/lighting district, homeowners' association, or other appropriate maintenance entity. • Section 4.7, Open Space, Public, and Institutional Land Use, Policy 10: Develop park space based on a standard of 3.0 acres/1,000 residents (2.0 acres for neighborhood parks and 1.0 acre for community parks).
Actions Pertaining to Planning Case Number 22-0027
August 16, 2022
ENVIRONMENTAL REVIEW
Planning Case Number 22-0027 has been reviewed pursuant to the California Environmental Quality Act (CEQA) and has been determined to be exempt from environmental review pursuant to CEQA Guidelines Section 15061, subdivision (b)(3).
FISCAL IMPACT
Adopting this ordinance would result in a net increase to fees collected for the purposes of acquiring and developing community park space.
Not adopting this ordinance would likely result in no fees collected for the purpose of acquiring and developing community park space.
CONFLICT OF INTEREST
Staff is not aware of any conflicts of interest.
Attachments:
- Ordinance No. 2022-07
ORDINANCE 2022-07
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FOWLER AMENDING SECTION 1605, OF CHAPTER 5, OF TITLE 9 OF THE FOWLER MUNICIPAL CODE,
TO AMEND THE DEVELOPMENT AND REIMBURSEMENTS STANDARDS OF
OPEN SPACE, AND TO ADOPT AN EXEMPTION UNDER CEQA GUIDELINES SECTION 15061, SUBDIVISION (B)(3).
WHEREAS, on February 3, 2009, the City Council of the City of Fowler adopted Ordinance No. 2009-01, amending Chapter 5, of Title 9 of the Fowler Municipal Code, which was a comprehensive update to the City’s Zoning Ordinance and is referred to as the “Zoning Ordinance”;
WHEREAS, the City of Fowler has established a General Plan policy to develop three (3) acres of park space for every 1,000 residents;
WHEREAS, the City of Fowler designates one (1) acre of park space for every 1,000 residents for community park purposes;
WHEREAS, the existing Zoning Ordinance has resulted in the non-collection of impact fees towards the acquisition and development of community parks; WHEREAS, the Planning Commission adopted Resolution No. 674, on July 7, 2022, recommending that the City Council adopt an ordinance to amend Section 9-5.1605, of Chapter 5, of Title 9 of the Fowler Municipal Code; and
WHEREAS, the City Council desires to amend Section 9-5.1605 of the Zoning Ordinance to ensure the development of Community Park space.
THE CITY COUNCIL OF THE CITY OF FOWLER DOES ORDAIN AS FOLLOWS:
SECTION 1. Section 9-5.1605, of Chapter 5, of Title 9 of the Fowler Municipal Code is hereby amended as follows:
K. Open Space. All residential subdivisions shall provide usable open space within the boundaries of the development. A maximum of fifty (50) percent of the cost of the open space facility may be in-lieu of required park fees.
1. Within single-family projects, either attached or detached, a portion five percent of the site shall be developed with usable open space such as common recreation areas, mini-parks, green belts/trails, and landscaping. This usable open space shall to be maintained by a landscape/lighting district, homeowners' association, or other appropriate maintenance entity.
SECTION 2. The City Council has determined that the Project is exempt from the California Environmental Quality Act under CEQA Guidelines Section 15061, subdivision (b)(3) (Common Sense Exemption).
SECTION 3. This Ordinance shall take effect thirty (30) days after its adoption.
SECTION 4. The City Clerk is further directed to cause this ordinance or a summary of this ordinance to be published once in a newspaper of general circulation published and circulated within the City of Fowler, within fifteen (15) days after its adoption. If a summary of the ordinance is published, then the City Clerk shall cause a certified copy of the full text of the proposed ordinance to be posted in the office of the City Clerk at least five (5) days prior to the City Council meeting at which the ordinance is adopted and again after the meeting at which the ordinance is adopted. The summary shall be approved by the City Attorney. * * * * * * * * * *
The foregoing ordinance was introduced at a regular meeting of the City Council held on August 2, 2022, and was adopted at a regular meeting of said Council held on August 16, 2022, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
APPROVED:
___________________________
Mark Rodriquez, Mayor Pro-Tem
ATTEST:
____________________________
Angela Vasquez, Deputy City Clerk
CITY COUNCIL OF THE CITY OF FOWLER
ITEM NO: 6-K
REPORT TO THE CITY COUNCIL
August 16, 2022
FROM THOMAS W. GAFFERY IV, Community & Economic Development Director
SUBJECT
ADOPT an Ordinance amending Title 4, Chapter 4, Article 2 of the Fowler Municipal Code regarding the parking of vehicles, towing of parked vehicles, and parking citations; and the repeal of Title 4, Chapter 4, Article 5 regarding trains
RECOMMENDATION
This item was introduced at the August 2, 2022 City Council meeting.
Staff recommend the City Council adopt an Ordinance amending Title 4, Chapter 4, Article 2 of the Fowler Municipal code regarding the parking of vehicles, towing of parked vehicles, and parking citations; and the repeal of Title 4, Chapter 4, Article 5 regarding trains.
BACKGROUND
A text amendment to the current sections of the Fowler Municipal Code related to parking is necessary for clarity, simplicity, and the removal of outdated and no longer relevant portions of the Code. Due to the scale of the revisions, staff plan to bring forward additional text amendments at a later date.
The proposed text amendment includes:
• Clarification on red, yellow, white, and green curb markings • Clarification and simplification of loading zone regulations • Removal of outdated sections regarding parking on 6th Street, 8th Street, and Manning Avenue • Simplification of regulations regarding vehicles parked for purposes of sale Adopt an Ordinance regarding the parking, towing, and citation of vehicles, and trains August 16, 2022
• Addition of a regulation that vehicles be parked in the direction of travel and no more than eighteen inches from the curb
• Addition of regulations for City-owned off-street facilities • Addition of a regulation that vehicles park within a parking space, where designated • Addition of a regulation for on-street parking of City-owned vehicles • Addition of a regulation allowing for the creation of “No Stopping Tow-Away” zones to reduce the amount of red curb areas needed and provide flexibility for managing parking in busy areas such as commercial zones and areas where commercial, industrial, and residential zones are adjacent.
• Addition of a regulation clarifying that penalties shall be assessed via parking citations pursuant to California Vehicle Code and that fines shall be set by Council Resolution • Removal of sections regarding trains that do not fall within the authority of the City In addition, Staff cannot locate a resolution adopting the parking fines, which have been in place for at least 2004. After adoption of this ordinance, staff will bring forward a resolution adopting the parking fines.
ENVIRONMENTAL REVIEW
This action does not constitute a “project” pursuant to the California Environmental Quality Act.
FISCAL IMPACT
Staff do not anticipate any fiscal impact due to this ordinance.
CONFLICT OF INTEREST
Staff is not aware of any conflicts of interest.
Attachments
- Ordinance 2022-05
ORDINANCE 2022-05
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FOWLER AMENDING TITLE 4, CHAPTER 4, ARTICLE 2 OF THE FOWLER MUNICIPAL CODE
REGARDING THE PARKING OF VEHICLES, TOWING OF PARKED VEHICLES, AND PARKING CITATIONS; AND THE REPEAL OF TITLE 4, CHAPTER 4, ARTICLE 5 REGARDING TRAINS
WHEREAS, regulating on-street parking is essential for the safety of the community; and WHEREAS, sufficient on-street parking is a key to creating a vibrant downtown; and WHEREAS, illegally parked vehicles, abandoned, and inoperable vehicles are a detriment to the community; and
WHEREAS, the current ordinance regulating on-street parking is incomplete and confusing.
THE CITY COUNCIL OF THE CITY OF FOWLER DOES ORDAIN AS FOLLOWS:
SECTION 1: Title 4, Chapter 4, Article 2 of the Fowler Municipal Code is hereby amended to read:
4-4.201 - Curb markings.
(a) Placement—Authority. The City Superintendent City Manager or designee is hereby authorized, subject to the approval of the Chief of Police, to place and, when required by the provisions of this article, shall place, the following curb markings or signage to indicate parking or standing regulations, and such curb markings shall have the following meanings:
(1) Red shall mean no stopping, standing, or parking at any time, except as permitted by the provisions of the California Vehicle Code of the State. (2) Yellow shall mean no stopping, standing, or parking at any time between 7:00 a.m. and 6:00 p.m. on any day, except Sundays and City-observed
holidays, for any purpose other than the loading or unloading of passengers or materials; provided, however, the loading or unloading of passengers and personal baggage shall not consume more than three (3) minutes, and the loading or unloading of materials shall not consume more than thirty (30) minutes comply with the provisions of section 4-4.202 of this Code. (3) White shall mean no stopping, standing, or parking for any purpose other than the loading or unloading of passengers and personal baggage which shall not exceed three (3) minutes, and such restriction shall apply between 7:00 a.m. and 6:00 p.m. on any day, except Sundays and holidays, and except when such zone is indicated by signage or paint in front of the Justice Court or the City Hall and is designated as reserved parking for designated official vehicles.
(4) Green shall mean no standing or parking for longer than thirty (30) fifteen (15) minutes, unless signs are posted otherwise, at any time between 7 9:00 a.m. and 6:00 p.m. on any day, except Sundays and holidays. The City Manager City or designee shall keep an official list of all time limited parking zones.
(b) Obedience. When the City Superintendent has caused curb markings to be placed, as set forth in this section, no person shall stop, stand, or park a vehicle adjacent to any such legible curb marking in violation to any of the provisions of this article. 4-4.202 - Loading and unloading.
(a) The permission granted by the provisions of this article to stop or stand a vehicle for the purposes of loading or unloading materials shall apply only to commercial vehicles and shall not extend beyond the time necessary therefor, and in no event for more than twenty (20) thirty (30) minutes or so long as is necessary to accommodate the loading and unloading of materials.
(b) The loading or unloading of materials shall apply only to commercial deliveries and to the delivery or pickup of express and parcel post packages and United States mail.
(c) The permission granted by the provisions of this article to stop or park a vehicle for the purposes of loading or unloading passengers shall include the loading or unloading of personal baggage and shall not extend beyond the time necessary therefor, and in no event for more than three (3) minutes.
(d) Within the total time limits set forth in this section, the provisions of this section shall be enforced so as to accommodate necessary and reasonable loading or unloading but without permitting abuses of the privileges granted.
(b) Loading zones shall be indicated by signage at least 150-feet apart or yellow paint upon the top and face of curbs and “LOADING ZONE” stenciled in black letters.
(c) Passenger loading zones shall be indicated by signage at least 150- feet apart or yellow paint upon the top and face of curbs and “PASSENGER LOADING ZONE” stenciled in black letters.
4-4.207 - Parking on Sixth Street.
Repealed in its entirety. It is unlawful for any person to park any vehicle upon that portion of the east side of Sixth Street fronting upon Lots 22, 23, 24, and 25 of Block 34 of the Townsite of Fowler for a period longer than fifteen (15) consecutive minutes. 4-4.208 - Parking on Eighth Street.
Repealed in its entirety. It is unlawful for any person to park any vehicle on the east curb of Eighth Street.
4-4.211 - Parking on Manning Avenue.
Repealed in its entirety.
(a) It is unlawful for any person to park any vehicle along either the north or south side of Manning Avenue.
(b) The designated area shall be marked or posted as provided by law. 4-4.213 - Prohibition of parking vehicles for purposes of sale (including for hire or rent).
(a) No person shall park a vehicle on a public or private an off-street parking lot for more than one hour, or on any public or private property, for the purpose of displaying such vehicle for sale, unless the property is zoned entitled by the City
for such purpose and the person is duly licensed to transact such business at that location.
(b) Subsection (a) shall not prohibit any person from parking a vehicle owned by that person on a public street for the purpose of displaying the vehicle for sale, except in the following areas:
(1) Along either the north or south curb of Merced Street between Sumner Avenue and Adams Avenue;
(2) Along either the east or west curbs of 5th, 6th, 7th, 8th, 9th and 10th Streets between Toulumne and Main Streets;
(3) Along either the north or south curb of Sumner Avenue between Merced Street and Sunnyside Avenue.
(c) Subsections (a) and (b) shall not prohibit any person from parking a vehicle on private residential property belonging to or occupied by the owner of the vehicle, nor on the public street immediately adjacent to said private residential property, for the purpose of displaying the vehicle for sale.
(d) The parking of any vehicle with a sign or other advertising device indicating the vehicle is for sale when the vehicle is parked within the same block or public or private property as two (2) or more other vehicles marked for sale, shall constitute prima facie evidence that such vehicle was parked or placed for the purpose of displaying same for sale.
(e) Any person parking a vehicle for sale in accordance with this section must also comply with the remaining provisions of Chapter 4 of Title 4 of the Fowler Municipal Code.
(b) Violations and Penalties. Any person violating any of the provisions of this article shall be subject to the penalty provisions in Chapter 2 of Title 1 and Chapter 8 of Title 1 of the Fowler Municipal Code. Each separate date, or any portion thereof, during which any violation of this article occurs or continues shall be deemed to constitute a separate offense and shall be punishable as provided in this section. 4-4.214 Parking parallel with the curb.
(a) Except as provided otherwise no vehicle shall stand or park in a roadway other than parallel with the edge of the roadway headed in the direction of traffic and with the wheels of the vehicle within eighteen inches of the curb line or edge of the roadway, except on any street or portions of a street where signs or pavement markings are in place indicating diagonal parking.
4-4.215 Parking in City-owned off-street facilities.
The City Manager or designee shall install signs and markings on City-owned or operated parking facilities designating the method, location, and position in which vehicles shall park. No person shall park any vehicle inconsistent with such signs and markings. 4-4.216 Parking space markings.
The City Manager or designee is authorized to install and maintain parking space markings to indicate parking spaces adjacent to curbs where parking is permitted. When such parking space markings are placed on the street, subject to other and more restrictive limitations, no vehicle shall be stop, stand, or park other than within a single space unless the size or shape of such vehicle makes compliance impossible.
4-4.217 Official vehicle zones.
The City Manager or designee is authorized to install and maintain Official Vehicle Zones.
No vehicle shall stop, stand or park in any Official Vehicle Zone unless such vehicle is owned by the City of Fowler or displays a permit issued by the City Manager or designee.
Official vehicle zones shall be indicated by signage at least 150-feet apart or white paint upon the top and face of curbs and “OFFICIAL VEHICLE ZONE” stenciled in black letters.
4-4.218 No Stopping tow-away zones.
The City Manager may establish "No Stopping Tow-Away" zones with stopping prohibited at all times or limited to specific hours, days, or either. Signs shall indicate the specific days and hours, if any, that stopping of vehicles is prohibited. When designated, it shall be unlawful for the operator of any vehicle to stop in any such zone. Any authorized City employee may cite or remove a vehicle from a "No Stopping Tow-Away" consistent with the California Vehicle Code. “No Stopping Tow-Away” zones shall be indicated by signage at least 150-feet apart.
4-4.219 Violations.
Unless stated otherwise, violations of this Article shall be subject to a parking citation pursuant to the California Vehicle Code at the violation amount as set by Council Resolution. Such parking citations may be issued by any peace officer or a Code Enforcement Officer, as defined by Chapter 7 of Title 1 of the Fowler Municipal Code.
SECTION 2: Title 4, Chapter 4, Article 5 of the Fowler Municipal Code is hereby repealed in its entirety.
Article 5. - Trains
4-4.501 - Speed.
For the better protection of the rights of persons traveling the streets or public ways of the City, it is unlawful for any person in charge of, having the control of, or directing the movement of any railroad engine, locomotive, car, or train to be propelled or moved along or across any street or road crossing of the City at a greater rate of speed than forty-five (45) miles per hour while such train is within the City limits. 4-4.502 - Blocking streets.
No person shall cause or permit any railway train, car, or similar vehicle on rails to stop, stand, or be operated in such a manner as to prevent the use of any street for the purposes of travel for a period of time longer than five (5) minutes; provided, however, the provisions of this section shall not apply to railway trains, cars, or similar vehicles on rails while blocking or obstructing a crossing because of an accident which requires the operator of the train, car, or similar vehicle on rails to stop at or near the scene of the accident.
SECTION 3. The City Council has determined that the Project is exempt from the California Environmental Quality Act under CEQA Guidelines Section 15061, subdivision (b)(3) (Common Sense Exemption).
SECTION 4. This Ordinance shall take effect thirty (30) days after its adoption.
SECTION 5. The City Clerk is further directed to cause this ordinance or a summary of this ordinance to be published once in a newspaper of general circulation published and circulated within the City of Fowler, within fifteen (15) days after its adoption. If a summary of the ordinance is published, then the City Clerk shall cause a certified copy of the full text of the proposed ordinance to be posted in the office of the City Clerk at least five (5) days prior to the City Council
meeting at which the ordinance is adopted and again after the meeting at which the ordinance is adopted. The summary shall be approved by the City Attorney.
The foregoing ordinance was introduced at a regular meeting of the City Council held on August 2, 2022, and was adopted at a regular meeting of said Council held on August 16, 2022, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
APPROVED:
___________________________
Mark Rodriquez, Mayor Pro-Tem
ATTEST:
____________________________
Angela Vasquez, Deputy City Clerk
CITY COUNCIL OF THE CITY OF FOWLER
ITEM NO: 6-L
REPORT TO THE CITY COUNCIL
August 16, 2022
FROM THOMAS W. GAFFERY IV, Community Development Director
SUBJECT
APPROVE a Resolution setting parking violation amounts.
RECOMMENDATION
Staff recommend the City Council approve a resolution setting parking violation amounts.
BACKGROUND
If Ordinance 2022-05 is approved, parking violation amounts will be set by Council resolution. Exhibit A presents the proposed parking violation amounts in a redline format, with added descriptions for clarity, setting new violation amounts pursuant to Ordinance 2022-04, and adjusting some parking violation penalty amounts based on the life-safety impact of the violation.
In researching the current parking violation amounts, Staff could not confirm a previous City Council action adopting parking violation amounts. Staff estimate the current parking violation amounts shown in Exhibit A have been in effect since at least July 1, 2004, per the data from the City’s parking citation processing vendor.
ENVIRONMENTAL REVIEW
This action does not constitute a “project” pursuant to the California Environmental Quality Act.
Approve a resolution setting parking violation amounts
August 16, 2022
FISCAL IMPACT
Staff anticipate a minor increase in parking citation revenue by adopting these parking violation amounts.
CONFLICT OF INTEREST
Staff is not aware of any conflicts of interest.
Attachments
- Resolution No. 2590
- Exhibit A: Master Fee Schedule – Parking Violation Amounts RESOLUTION NO. 2590
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CITY OF FOWLER
ADOPTING PARKING VIOLATION AMOUNTS
WHEREAS, pursuant to Fowler Municipal Code, certain parking violations are subject to a citation in accordance with the California Vehicle Code; and WHEREAS, Ordinance 2022-05 requires parking violation amounts to be set by Council Resolution; and
WHEREAS, the proposed violation amounts are attached hereto as Exhibit A; and WHEREAS, these violation amounts shall become effective after codification of Ordinance 2022-05.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Fowler that parking violation amounts are set pursuant to Exhibit A.
PASSED, APPROVED AND ADOPTED this August 16, 2022, at a regular meeting of the Fowler City Council by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
APPROVED:
___________________________
Mark Rodriquez, Mayor Pro Tem
ATTEST:
____________________________
Angela Vasquez, Deputy City Clerk
Description Old Rate New Rate Reso/FMC
Green Indicates Additions
Red Strikethrough Indicates Deletions
Red curb Violation (FMC 4-4.201(a)(1)) $28 $100
Loading zone overtime (FMC 4-4.202) $30
Green curb overtime (FMC 4-4.201(a)(4)) $30
Parking for more than 72 hours (FMC 4-4.204) $50
Parking in alleys (FMC 4-4.205) $43 $100
Prohibited truck parking (FMC 4-4.212) $43 $50
Not parked within 18" from curb (FMC 4-4.214) $44 $50
Parked wrong way on street (FMC 4-4.214) $50
Unauthorized parking in City-owned facility (FMC 4-4.215) $30 Not parked within marked space (FMC 4-4.216) $50
Official vehicle zone (FMC 4-4.217) $30
No stopping tow-away zone (FMC 4-4.218) $50
Delinquent parking citation DMV registration hold fee ^ $4 Late fee $10
^ Adjusted automatically based on current fee charged by DMV
CITY OF FOWLER
Master Fee Schedule
* * On-Street Parking * *
Parking On-Street for CC 1/1
CITY COUNCIL OF THE CITY OF FOWLER
ITEM NO: 6-M
REPORT TO THE CITY COUNCIL
August 16, 2022
FROM YVONNE HERNANDEZ, Recreation Supervisor
SUBJECT
ACCEPT a donation to the City in the amount of $1,050 from Adventist Health for Wednesday Nights at the Park.
RECOMMENDATION
Staff recommend the City Council accept a donation to the City in the amount of $1,050 from Adventist Health for Wednesday Nights at the Park.
BACKGROUND
Per Resolution 1881, donations to the City of $500 or more shall be approved by the City Manager, and then presented to the City Council for acceptance.
These donated funds will be used for charter experiences and live music for family friendly entertainment.
ENVIRONMENTAL REVIEW
This action does not constitute a “project” pursuant to the California Environmental Quality Act.
ACCEPT a donation to the City in the amount of $1,050 from Adventist Health August 16, 2022
FISCAL IMPACT
Donation revenue enhances the City’s ability to provide programs and services to residents.
CONFLICT OF INTEREST
Staff is not aware of any conflicts of interest.
Attachments
- None
CITY COUNCIL OF THE CITY OF FOWLER
ITEM NO: 6-N
REPORT TO THE CITY COUNCIL
August 16, 2022
FROM DAVID PETERS, City Engineer
SUBJECT
Actions pertaining to approval of final map for Tract 6381 1) ADOPT Resolution No. 2591 approving the final map for Tract 6381 accepting on behalf of the public the streets and easements as offered on the map in accordance with the terms of the dedications.
2) AUTHORIZE the City Engineer to transmit the Final Map of Tract 6381 and associated documents to the Fresno County Recorder’s Office for recording.
3) AUTHORIZE the City Manager to execute the Subdivision Agreement for Tract 6381 on behalf of the City.
RECOMMENDATION
Staff recommends that Council adopts the resolution approving the final map, authorize the City Engineer to transmit the map for recording and authorize the City Manager to sign the subdivision agreement.
BACKGROUND
The applicant, KB Home South Bay Inc., a California Corporation is proposing to develop a 74-lot subdivision on the east side of Armstrong Avenue between Adams Avenue and Clayton Avenue.
The applicant has complied with the conditions of approval of the approved tentative map.
A subdivision agreement has been prepared for the development because the off-site improvements have not yet been constructed. The subdivision agreement requires that the applicant post bonds or Approval of Final Map 6381
August 16, 2022
instruments of security with the City in order to guarantee the construction of the improvements, which have been submitted to the City. The subdivision agreement also sets forth the development fees that the applicant must pay to the City prior to the delivery of the final map to the County Recorder.
The applicant has submitted the public improvement plans and the final map to the City, both of which have been reviewed and approved by the City Engineer. A conceptual plan of the park improvement is attached. The Council is required by law to accept the final map unless they can site deficiencies in the final documents.
The applicant has paid development fees as described above and in accordance with City fee resolutions. These fees will provide for review costs by the City and other capital improvement requirements.
The subdivision is zoned residential and complies with the City’s General Plan.
Following acceptance of this map by the City, the City Engineer shall deliver the final map and subdivision agreement to the Fresno County Recorder for recordation.
ENVIRONMENTAL REVIEW
A Mitigated Negative Declaration has been adopted for the project.
FISCAL IMPACT
Approval of the project will result in the collection of plan check and inspection fees and development fees. No direct City expenditures related to this project are anticipated.
CONFLICT OF INTEREST
Staff is not aware of any conflicts of interest.
Attachments
- Final Map 6381
- Resolution No. 2591
- Tract 6381 Subdivision Agreement
- Conceptual Trail
SURVEYOR'S STATEMENT
CITY ENGINEER'S CERTIFICATE
RECORDER'S CERTIFICATE
OWNER'S STATEMENT LEGAL DESCRIPTION
SOILS ENGINEER'S CERTIFICATE
RIGHT TO FARM STATEMENT
PLANNING COMMISSION STATEMENT
SUBDIVISION AGREEMENT
CITY CLERK'S CERTIFICATE
SUBDIVISION MAP OF
TRACT NO. 6381
MARSHALL ESTATES II
IN THE CITY OF FOWLER,
COUNTY OF FRESNO, STATE OF CALIFORNIA
SURVEYED AND PLATTED IN JANUARY 2022,
BY GATEWAY ENGINEERING, INC.
CONSISTING OF 4 SHEETS
SHEET 1 OF 4
CONSULTING LAND SURVEYOR'S CERTIFICATE
NOTARY ACKNOWLEDGEMENT
CIVIL ENGINEERS I LAND SURVEYORS
P. 559-320-0344 I F. 559-320-0345 I WWW.GATEWAYENG.COM
405 PARK CREEK DRIVE, CLOVIS, CA 93611-4435
THIS PROPERTY IS SUBJECT TO THE FOLLOWING:
EXCEPTION BLANKET IN NATURE, NOT PLOTTABLE. EXCEPTION NO. 5 ON PTR.
EXCEPTION BLANKET IN NATURE, NOT PLOTTABLE. EXCEPTION NO. 6 ON PTR.
AN EASEMENT AFFECTS SUBJECT PROPERTY, PLOTTED. EXCEPTION NO. 8 ON PTR. THIS EASEMENT IS TO BE VACATED BY THIS MAP.
EXCEPTION BLANKET IN NATURE, NOT PLOTTABLE. EXCEPTION NO. 9 ON PTR.
EXCEPTION
BLANKET IN NATURE, NOT PLOTTABLE. EXCEPTION NO. 10 ON PTR.
BASIS OF BEARINGS
N
AN EASEMENT AFFECTS SUBJECT
PROPERTY, PLOTTED. THIS EASEMENT IS TO VACATED BY THIS MAP.
AN EASEMENT AFFECTS SUBJECT PROPERTY,
PLOTTED. THIS EASEMENT IS TO VACATED BY THIS MAP.
LEGEND
SUBDIVISION MAP OF
TRACT NO. 6381
MARSHALL ESTATES II
IN THE CITY OF FOWLER,
COUNTY OF FRESNO, STATE OF CALIFORNIA
SURVEYED AND PLATTED IN JANUARY 2022,
BY GATEWAY ENGINEERING, INC.
CONSISTING OF 4 SHEETS
SHEET 2 OF 4
SEE SHEET 4 FOR LINE,
CURVE AND RADIAL TABLES
NORTH ARMSTRONG AVENUE
OUTLOT 'B'
OUTLOT 'A' NORTH LAKER LANE AVENUE AVENUE
HEIDI AVENUE HEIDI AVENUE
BOORNAZIAN
AHRONIAN AVENUE
AVENUE VISTA NORTH LAKER LANE ISABELLA N
AN
EASEMENT AFFECTS SUBJECT PROPERTY, PLOTTED.
*THIS EASEMENT IS TO BE VACATED BY THIS MAP.
LEGEND
SUBDIVISION MAP OF
TRACT NO. 6381
MARSHALL ESTATES II
IN THE CITY OF FOWLER,
COUNTY OF FRESNO, STATE OF CALIFORNIA
SURVEYED AND PLATTED IN JANUARY 2022,
BY GATEWAY ENGINEERING, INC.
CONSISTING OF 4 SHEETS
SHEET 3 OF 4
NOTES
SEE SHEET 4 FOR LINE,
CURVE AND RADIAL TABLES
LINE TABLE LINE TABLE CURVE TABLE CURVE TABLE CURVE TABLE RADIAL TABLE
SUBDIVISION MAP OF
TRACT NO. 6381
MARSHALL ESTATES II
IN THE CITY OF FOWLER,
COUNTY OF FRESNO, STATE OF CALIFORNIA
SURVEYED AND PLATTED IN JANUARY 2022,
BY GATEWAY ENGINEERING, INC.
CONSISTING OF 4 SHEETS
SHEET 4 OF 4
LOT LOT LOT
WITNESS CORNER DETAIL FOR FRONT YARDS DETAIL "A"
BOORNAZIAN AVENUE
LOT 1
LOT 2 ARMSTRONG AVENUE
DETAIL "B"
AHRONIAN AVENUE
LOT 58
LOT 60 ARMSTRONG AVENUE
RESOLUTION NO. 2591
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FOWLER
APPROVING FINAL TRACT MAP NO. 6381 AND ACCEPTING STREET DEDICATION
AND EASEMENTS
WHEREAS, KB Home South Bay Inc., a California Corporation, the Owner and Subdivider, has presented to the City Council of the City of Fowler, a Municipal Corporation, a Final Map of Tract No. 6381 for approval by the City Council; and
WHEREAS, the City Engineer has verified that all of the provisions of the Subdivision Map Act and of Chapter 4, “Subdivisions,” of the Fowler Municipal Code have been complied with, and that said Final Map is substantially the same as the Tentative Map thereof, as previously approved by the City Council and Planning Commission; and
WHEREAS, certain streets to be developed in Tract Map No. 6381 have been offered for dedication to the City of Fowler; and
WHEREAS, the Fowler Subdivision Ordinance requires that street dedications and easements be accepted by the City Council; and
WHEREAS, the City Council also determined that it would be in the best interests of the City at this time to accept the streets and easements offered for dedication on the Final Tract Map No. 6381; and
WHEREAS, the City Council hereby authorizes the City Manager to enter into the Subdivision Agreement, which has been previously executed by the Subdivider, related to the construction of public improvements associated with the subdivision.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Fowler that the Final Map of Tract No. 6381 and the dedication of the street and easements offered for dedication as shown on Final Tract Map 6381 be accepted, and the Mayor and/or City Manager and City Clerk be authorized and directed to sign the documents for improvements and recordation.
PASSED, APPROVED AND ADOPTED this 16th day of August 2022, at a regular meeting of the Fowler City Council by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
APPROVED:
___________________________
Mark Rodriquez, Mayor Pro-Tem
ATTEST:
____________________________
Angela Vasquez, Deputy City Clerk
Subdivision Agreement for Tract No. 6381 Page 1
CITY OF FOWLER
SUBDIVISION AGREEMENT
TRACT NO. 6381
THIS SUBDIVISION AGREEMENT ("AGREEMENT") is made and entered into this ____ day of _________, 2022, by and between KB Home South Bay Inc., a California Corporation ("SUBDIVIDER"), and the CITY OF FOWLER, a Municipal Corporation ("CITY").
RECITALS
A. Tentative Map No. 6381 (attached hereto as Exhibit “A”) has been filed with City for a proposed division of land adjacent to the intersection of Sunnyside Avenue and Sumner Avenue which is located within the corporate limits of the City. This tentative map has been approved and is being developed in a single phase. SUBDIVIDER has requested that the CITY accept and approve the Final Map and the dedications delineated and shown on the Final Map for the use and purposes specified thereon and to otherwise approve the Final Map in order that the same may be recorded as required by law.
B. The CITY requires as a condition precedent to the acceptance and approval of the Final Map, the dedication of the streets and public improvements and easements as delineated and shown on the Final Map, and deems the same as necessary for the public use, and requires and deems as necessary for the public use that any and all streets, public improvements and easements delineated and shown on the Final Map shall be improved by the construction thereof and the installation of the improvements specified in this Agreement.
C. Certain public improvements are required to be made by SUBDIVIDER in accordance with the approved tentative map of the Subdivision and have not yet been completed Section 66462 of the California Government Code provides, as a condition precedent to the approval of the Final Map, that the City shall require the SUBDIVIDER to enter into an agreement to complete said public improvements.
D. The SUBDIVIDER and CITY enter into this agreement to perform and complete the work and matters as hereinafter described in this Agreement, in conformance with the City of Fowler Municipal Code, which Sections by this reference are incorporated into this Agreement made a part hereof.
NOW THEREFORE, it is hereby agreed as follows:
1. Improvements. SUBDIVIDER shall construct and install all public improvements in the Subdivision as identified on the Final Map and Improvement plans in accordance with all of the requirements and standards as set forth in the approval or conditional approval of the tentative map of the Subdivision, the Fowler Municipal Code, all applicable laws, codes and regulations as determined by the City Engineer and the terms and conditions of this Agreement (collectively “Work”). In accordance with the Fowler Municipal Code, all of the Improvements shall be completed no later than twelve (12) months after the recording of the Final Map and commencement of construction. The SUBDIVIDER shall notify the City Engineer in writing two weeks (14 calendar days) prior to the commencement of construction activities. The City Engineer will then document in writing the beginning of the construction period. Construction shall commence not later than 12 months after recordation of the Final Map. Request to extend Subdivision Agreement for Tract No. 6381 Page 2
the time for completion of the Improvements must be in written form and received by the CITY not less than thirty (30) days prior to expiration of said twelve (12) month period and shall include facts to support the extension of time for completion as required by the City Engineer.
Only the City Council shall have the authority to extend such time period. The extension period shall not exceed three (3) months.
Within thirty (30) days after the SUBDIVIDER notifies the City Engineer that the required Work has been completed, the City Engineer shall inspect such Work and, if the Work has been performed in the required manner and in accordance with this Agreement, the Final Map, the Fowler Municipal Code and all other applicable laws, codes and regulations, the City Engineer shall advise the City Council that the public improvements are ready for acceptance by the CITY.
2. Inspection. The CITY shall inspect all work in accordance with Section 16 of the Fowler Municipal Code, including the SUBDIVIDER'S conformance with the CITY’s standard specifications and any and all applicable conditions, standards or requirements, including, without limitation, all conditions, standards or requirements identified at the preconstruction conference held prior to commencing the Work.
As part of the inspection process, SUBDIVIDER shall retain, at its sole cost and expense, a materials testing company to perform any testing or retesting of the Work as required by the City’s Department of Public Works and/or Building Official. The materials testing firm must be approved by the CITY before any testing or retesting begins. The City's Inspector shall designate the locations for compaction tests, and shall observe all testing procedures. In addition to street areas, compaction testing shall be performed in building pad areas.
The SUBDIVIDER’S Engineer shall check the grade of all streets prior to surfacing and shall, prior to surfacing, provide written confirmation to the City’s Department of Public Works that the street grades conform to the approved grades. In the case of asphalt concrete surfacing, the SUBDIVIDER’S Engineer shall, prior to surfacing, set grade stakes and shall be in attendance at the time all surfacing is performed.
SUBDIVIDER shall construct all required improvements in accordance with the applicable improvement plans and specifications. Where concrete curbs and gutters are required and where driveway approaches are not constructed at the time curbs and gutters are constructed, the curb and gutter shall be continuous.
CITY shall schedule a preliminary final inspection and a deficiency list shall be compiled and submitted to the SUBDIVIDER for correction. Upon completion of all corrections or additional work as outlined by the deficiency list, the SUBDIVIDER shall certify, in writing, that all corrections have been completed and request a final inspection. Upon finding that all items have been corrected and receipt of as-built improvement plans, the Subdivision shall be placed on the City Council agenda for acceptance.
The completion of corrections indicated by the deficiency list shall not relieve the SUBDIVIDER from the responsibility of correcting any deficiency not shown on the deficiency list that may be subsequently discovered. Should the CITY require payment of additional engineering and inspection fees and costs for improvements constructed after the stated date of completion, the SUBDIVIDER must pay said additional fees and costs prior to acceptance by the City Council of the improvements.
Subdivision Agreement for Tract No. 6381 Page 3
3. Costs and Fees. The SUBDIVIDER shall be responsible for all costs and expenses associated with the Work, including, without limitation, the costs identified in the Improvement Cost Estimate attached hereto and made a part hereof and identified as Exhibit "B" to this Agreement. SUBDIVIDER agrees to all amounts identified on Exhibit “B” and agrees to pay when due, all amounts identified on Exhibit “B”, including, without limitation, all CITY engineering and inspection fees.
4. Security. SUBDIVIDER agrees to furnish security, which complies with Section 66499 et. seq. of the California Government Code, and in such amounts as are required by the CITY, to guarantee the faithful performance of this Agreement including, without limitation, the construction of the Improvements and completion of the Work, and to guarantee payment to contractors, subcontractors, laborers, material men and other persons involved in the performance of the Work. In the sole discretion of the CITY and with the written authorization of the CITY, the sureties provided by the SUBDIVIDER may be released in whole or in part in the following manner:
(a) Faithful performance sureties, not in excess of ninety percent (90%) of the estimated costs of the individual items of the Improvements and Work, may be released, or the required surety amounts may be reduced, as work is satisfactorily completed and accepted by the CITY.
(b) Forty-five (45) days after recordation of the Notice of Completion for the Subdivision, the sureties securing the payment to contractors and subcontractors, and to persons furnishing labor, materials, or equipment, may be released if claims including, without limitation, stop notices, have not been filed.
(c) Twenty-Five percent (25%) of the total faithful performance surety, retained as the public improvement warranty, may be released one year after the Notice of Completion for the SUBDIVISION has been recorded. In the alternative, SUBDIVIDER shall provide CITY with new warranty security of not less than twenty-five percent (25%) of the Improvement Cost Estimate identified in Exhibit "B" hereto, which security shall have a term of one (1) year from the date of recordation of the Notice of Completion for the Subdivision.
The SUBDIVIDER shall furnish, in writing, proof of adequate security deposit to all utility companies for the installation of electricity, gas, telephone, cable television and any other utility which charges are not part of the Improvement Cost Estimate set forth in Exhibit "B".
No final map shall be signed by the City Engineer or recorded until all improvement securities required by the Fowler Municipal Code and this Agreement have been received and approved by the CITY. The form of securities shall be one or the combination of forms as approved by the CITY.
5. Liability. As a condition precedent, and prior to commencement of the Work to be performed pursuant to this Agreement, SUBDIVIDER shall furnish the CITY with a certificate of insurance with a separate endorsement evidencing the following insurance coverages:
Commercial and general liability insurance with a combined single limit of not less than Two Million Dollars ($2,000,000.00) per occurrence. Such insurance shall include Subdivision Agreement for Tract No. 6381 Page 4
products/completed operations liability, owners and contractors protective blanket contractual liability, personal injury liability, broad form property damage coverage and explosion, collapse and underground hazard coverage. The insurance shall name the CITY, its appointed and elected officials, officers, employees and agents and Peters Engineering Group as additional insureds; and be primary with respect to any insurance or self-insurance programs maintained by the CITY, and shall protect them from claims for personal injury, death or property damage suffered by third persons or by officers, employees, agents or independent contractors of the SUBDIVIDER, and arising out of or in any way connected with the Work which is the subject of this Agreement. Such policy or policies of insurance shall specifically provide that the CITY shall receive at least thirty (30) days prior to written notice of any cancellation of such policy or policies. Any such notice shall be sent to the attention of the City Engineer. Notwithstanding an inconsistent statement in the insurance policy or certificate or subsequent endorsement attached thereto, the CITY shall be insured or named as an additional insured covering the Work which is the subject of this Agreement, whether liability is attributable to the SUBDIVIDER or to the passive or active negligence of the CITY. The insurance shall be in effect on the date of this Agreement and shall expire no sooner than one year after the date of recordation of the Notice of Completion for the Subdivision. The cost of providing all required insurance shall be borne solely by the SUBDIVIDER.
All such insurance shall provide coverage for SUBDIVIDER’s obligations of indemnification as set forth in paragraph 6 of this Agreement.
The expiration or proposed cancellation of any such insurance policy or policies, for any reason whatsoever, shall constitute a material breach of this Agreement.
6. Indemnification. SUBDIVIDER hereby agrees to and shall protect, indemnify, defend and hold harmless the CITY and all officials, officers, agent, representatives and employees and Peters Engineering Group from and against any and all liability, loss, claims, expenses, or damages of whatsoever kind or character, including attorney’s fees and costs of all types, in any way arising out of, or in any way related, directly or indirectly to the Work to be performed pursuant to this Agreement or the acts or omissions of the SUBDIVIDER, SUBDIVIDER'S independent contractors, employees, representatives, agents and invitees, and the passive or active negligent acts or omissions of the CITY or its officials, officers, employees, contractors, representatives, and agents while acting within the scope of their duties and regarding, in any way, the Work to be performed pursuant to this Agreement. These indemnification and hold harmless provisions shall be in full force and effect regardless of whether or not there is insurance policies covering the applicable damages, claims, or liability.
This indemnification shall be binding upon the SUBDIVIDER whether or not there are any allegations of fault, negligence or liability of the parties indemnified hereunder and shall survive the completion of construction of the Improvements and completion of the Work.
SUBDIVIDER agrees that the use of any and all public streets and improvements, which are part of the Subdivision, shall be, at all times prior to the final acceptance by the CITY, the sole and exclusive risk of the SUBDIVIDER.
7. Permits and Compliance. Should SUBDIVIDER be required to perform any Work within any public rights-of-way or easements, which are located beyond the Subdivision limits, SUBDIVIDER shall satisfy any and all requirements necessary to obtain an encroachment permit from the CITY or any other agency.
Subdivision Agreement for Tract No. 6381 Page 5
The SUBDIVIDER shall install underground, all gas main services, telephone, cable television, and electrical lines, and all electrical transformers, splice boxes, pull boxes, and other existing facilities providing service to within the limits of this Subdivision.
SUBDIVIDER agrees to make all financial arrangements with Pacific Gas and Electric, Southern California Gas, Comcast Cable, ATT, and any other applicable utility company, to guarantee the installation of all utilities and services to the Subdivision. Copies of all agreements and written evidence of these financial arrangements shall be furnished to the CITY along with a composite underground utility plan prior to beginning construction of the Improvements within the limits of the subdivision.
SUBDIVIDER shall make arrangements for the relocation of all overhead and underground public utility facilities along the frontages or that interfere with the construction of the Improvements. The SUBDIVIDER shall be responsible for the full cost of relocating such utilities and facilities.
The SUBDIVIDER shall repair any damage to public streets or other public property or improvements, which results from, or is incidental to, the construction of the Improvements, or in lieu of making such repairs, the SUBDIVIDER shall pay to the CITY the full cost of such repairs.
Building permits for individual lots of the Subdivision may be issued after primary completion of the infrastructure improvements as approved by the City Engineer following inspection. Primary completion is defined as completion of all required improvements except paving, sidewalks, landscaping and street lighting.
No occupancy permit for any dwelling to be constructed within the Subdivision shall be issued until all required Work and Improvements are substantially complete subject to City Engineer approval. Substantial completion is defined as completion of all required improvements with only minor corrections known as “punch list” items remaining. No inspections or approval by the City Engineer will be deemed acceptance by the City Council.
In accordance with the Fowler Municipal Code, construction methods and materials for all Improvements shall conform to the standard plans and specifications of the CITY.
Construction shall not commence until required improvements plans have been approved by the City Engineer and payment of all fees have been received by the CITY.
The Improvements shall be constructed in accordance with all applicable street, plumbing, building, electrical and zoning codes and any other applicable codes, rules or regulations of the CITY and the State of California.
The SUBDIVIDER shall require contractors and subcontractors to provide and maintain barricades and warning signs to protect and warn the public of construction hazards. Traffic control shall conform to a traffic control plan approved by the City Engineer. If in the opinion of the City Engineer, proper barricades and warning signs are not being provided, the Contractor will be required to immediately stop work until proper traffic control is provided and approved by the City Engineer.
The SUBDIVIDER shall require all contractors and subcontractors to conform to the applicable provisions of the California Occupational Safety and Health Act ("OSHA"). On site inspection of the work will be requested of OSHA officials and all work subject to this Agreement Subdivision Agreement for Tract No. 6381 Page 6
shall immediately stop if, in the opinion of the City Engineer, any such work is being performed in violation of OSHA, or when appropriate safety measures are not being utilized for the Work.
SUBDIVIDER shall be responsible for obtaining an NPDES permit for construction sites in excess of one acre, and shall develop a dust control plan and erosion control plan to mitigate soil migration from the Subdivision. SUBDIVIDER shall be responsible for soil and erosion control throughout the one-year warranty period called for in this Agreement. The SUBDIVIDER shall sweep the streets and alleys periodically throughout the one-year warranty period, at a minimum frequency of once per month.
The SUBDIVIDER and its contractors and subcontractors shall pay for any materials, provisions and other supplies used in, upon, for, or about the performance of the Work, and for any and all work or labor associated therewith and for all amounts due under the worker's compensation and the unemployment insurance acts and all other applicable laws or regulations of the State of California or the United States with respect to such work or labor, including, without limitation, as required by Section 3200 of the California Labor Code and Section 4200 of the California Government Code.
The SUBDIVIDER shall provide and plant one street tree per lot at a location approved by the City’s Building Official. The trees shall be planted at the time the dwelling unit on the lot is occupied and shall be selected from a street tree list provided by the CITY. Trees shall be furnished with root barriers and watered via a City approved irrigation system for each lot.
The SUBDIVIDER shall install streetlights in the Subdivision. A streetlight plan shall be submitted to the City Engineer for review and approval. Streetlights shall be LED and be furnished and installed in accordance with CITY, PG&E and Caltrans’ standards. The street lighting system shall become the property of the CITY upon completion and acceptance of the work, without further consideration to SUBDIVIDER. SUBDIVIDER’S contract with PG&E (“PG&E” Contract”) for the furnishing of electrical power to the Subdivision shall specifically state that all streetlights shall become the property of the City. Each street light shall be furnished with an electrical pull box and grounding rod. The SUBDIVIDER shall number the street light poles in accordance with PG&E requirements. The PG&E Contract shall identify a maintenance rate schedule for the streetlights of LS2C.
Fencing improvements shall be constructed in accordance with City Standards, with appropriate fencing offsets to be provided for sanitation and garbage collection service to each lot, including allowance for approved number and/or style of garbage cans, green waste, and recycling containers. Fencing improvements shall be constructed in such a manner as to eliminate any dirt strip between the fence and the adjacent alley. Where framing improvements face the alley, the SUBDIVIDER shall construct a concrete mow strip in accordance with City standards between the fence and the alley paving. When new homes abut existing homes, developer shall coordinate with the existing homeowners and make arranges for improvements to or replacement of fence between the homes.
The SUBDIVIDER shall furnish to the CITY a set of reproducible as-built plans for all street improvements (“Street Plans”). The Street Plans shall be original ink on vellum or mylar copies.
The Street Plans shall include the location of all underground utilities, finished grades for all curb returns and building pads. The SUBDIVIDER'S engineer shall provide a copy of the tract, in digitized format (AutoCAD 2020 or equivalent format as approved by the City Engineer) to the City prior to final acceptance of the Improvements and Work by the City.
Subdivision Agreement for Tract No. 6381 Page 7
SUBDIVIDER agrees to install security devices, acceptable to the City of Fowler Public Works Department in order to protect streetlight and water meter facilities from vandalism.
Prior to the acceptance of the Work and release of the security, the SUBDIVIDER shall provide to the CITY a certification from its engineer that all work and the construction and installation of all Improvements conform with the approved plans for the Subdivision and the recommendations contained in the Preliminary Soils Reports. A certification shall also be furnished by the SUBDIVIDER’S engineer that all utility trenches have been uniformly compacted to the percentages specified in the City Standards.
SUBDIVIDER agrees that the City shall inspect all Work and Improvements. All of said Work and Improvements and materials shall be completed, performed and installed under the inspection of and to the satisfaction of the City Engineer. It shall further be the responsibility of SUBDIVIDER to give the City Engineer written notice not less than two (2) working days in advance of the actual date on which Work is to be started to allow for arrangements for appropriate and adequate inspection services. SUBDIVIDER’S failure to notify the City Engineer may cause inspection delays for which SUBDIVIDER will be solely responsible.
Defective work shall be made good, and unsuitable materials may be rejected, notwithstanding the fact that such defective work and unsuitable materials may have been previously overlooked or approved by the City Engineer or inspector. Any damage to the sewer system, water system, storm drainage facilities, concrete work, street paving, or any other improvements that occurs after installation shall be made good to the satisfaction of the City Engineer by SUBDIVIDER before final acceptance of completed work by the City Council.
Defective work appearing after final acceptance shall be repaired/replaced under the warranty provisions herein. Upon final acceptance by the City Council of all Work and Improvements as provided herein, SUBDIVIDER shall warrant said Work and Improvements from any defects in materials or workmanship for a period of one (1) year following said acceptance, and a one-year warranty bond shall be furnished by SUBDIVIDER to the City as herein provided herein.
8. Other Conditions. The SUBDIVIDER shall annex the Subdivision to the City’s Landscape and Storm Drainage Maintenance District for the provision of maintenance of the landscape areas. The SUBDIVIDER shall provide a signed and notarized covenant and consent for annexation of the Subdivision to the Landscape Maintenance District. The SUBDIVIDER shall notify every potential buyer of lots within the Subdivision that the Subdivision is part of a Landscape Maintenance District. The SUBDIVIDER shall provide the City with a signed copy of such notice indicating acceptance of the notice by the buyer.
SUBDIVIDER shall ensure that all solid waste is collected and disposed of by the City's contract agent, Waste Management, as required by Section 6-2.307 of the Fowler Municipal Code. If SUBDIVIDER uses persons or companies other than Waste Management for general clean up, SUBDIVIDER shall ensure that all solid waste is collected and disposed of by Waste Management.
The City Engineer is assumed to be a just arbitrator between CITY, SUBDIVIDER and SUBDIVIDER'S Contractor (herein "Contractor") and the entire work is under his jurisdiction to such end. It is his function to interpret the drawings and specifications; pass upon merits of materials and workmanship.
It is agreed that all conditions of approval of the Tentative Map and any Site Plan Review shall apply to and be included in the Agreement.
Subdivision Agreement for Tract No. 6381 Page 8
9. Scheduling. It shall be the responsibility of the SUBDIVIDER to coordinate all Work performed by its contractors and subcontractors, such as scheduling the sequence of operations and the determination of liability of one contractor or subcontractor operation delays another. In no case shall representatives of the CITY be placed in the position of making decisions that are the responsibility of the SUBDIVIDER. It shall further be the responsibility of the SUBDIVIDER to give the City Engineer written notice not less than two (2) working days in advance of the actual date on which work is to be started. Failure on the part of the SUBDIVIDER to notify the City Engineer may cause delay for which the SUBDIVIDER shall be solely responsible.
10. Soil and Dust Control Provisions. The SUBDIVIDER is responsible for arrangement for and payment of all CITY required soil tests at locations as determined by the City Engineer. Payment for said tests shall be made directly by the SUBDIVIDER to the certified testing firm of the SUBDIVIDER'S choice.
Adequate dust control shall be maintained by the SUBDIVIDER on all streets and areas, including, without limitation, undeveloped lots within the Subdivision and all streets outside of the Subdivision, from the time Work is first commenced until all work is completed. "Adequate dust control" as used herein shall mean the sprinkling of the streets with water or approved dust palliative with sufficient frequency to prevent the scattering of dust by wind or the activity of vehicles and equipment onto any street area or private property adjacent to the Subdivision.
Whenever, in the opinion of the City Engineer, adequate dust control is not being maintained on any street or streets, or other areas of the Subdivision, the City Engineer shall give notice to the SUBDIVIDER to comply with these provisions, or, at the election of the City Engineer, notice may be mailed to the SUBDIVIDER at his address on file with the City Engineer. If, within twenty-four (24) hours after personal service or within forty-eight (48) hours after mailing of notice, the SUBDIVIDER has not commenced to maintain adequate dust control or at any time thereafter fails to maintain adequate dust control, the City Engineer may, without further notice of any kind, cause any street or streets to be sprinkled with water or an approved dust palliative as may be deemed necessary by the City Engineer to eliminate the scattering of dust. Such dust control shall be performed by equipment and personal of the CITY or by contract as the City Engineer shall determine, and the SUBDIVIDER agrees to pay to CITY, upon receipt of the billing therefore, the entire cost to the CITY of such dust control.
When the surfacing on any existing street is disturbed, SUBDIVIDER shall immediately replace the surfacing with temporary surfacing and permanently pave the existing street within fourteen (14) calendar days thereafter. All streets shall be maintained in a safe and passable condition at all times between the commencement of construction of Improvements and final completion thereof.
11. Reimbursement. If the City Municipal Code provides SUBDIVIDER with the right to receive cash reimbursement or Development Impact Fee credit because of the construction of certain Improvements or the oversizing thereof, SUBDIVIDER must request payment of the cash reimbursement or preparation of a reimbursement agreement, whichever is applicable, or the Development Impact Fee credit. Such request must be made in writing and received by the City Engineer prior to the date of final acceptance of all Improvements by FOWLER City Council. SUBDIVIDER agrees that should it fail to make such written request by the date identified herein, SUBDIVIDER forever waives it’s right to request and receive any reimbursement, reimbursement agreement or Development Impact Fee credit.
Subdivision Agreement for Tract No. 6381 Page 9
The following items are eligible for reimbursement related to this Subdivision:
1. There are no identified reimbursements for this tract.
12. Prevailing Wage Laws, Rules and Regulations. SUBDIVIDER shall comply with and shall require all contractors to comply with all prevailing wage laws, rules and regulations applicable to the Subdivision, the Work and the Improvements. Unless otherwise advised in writing by the CITY, SUBDIVIDER shall be solely responsible for making any and all decisions regarding the payment of prevailing wages for any portion or aspect of the Subdivision, Work or Improvements, including, without limitation, any form of reimbursement by the CITY to the SUBDIVIDER or any contractor. Further, SUBDIVIDER will be solely responsible for the payment of any claims, fines, penalties, reimbursements, payments or any other actions that may be initiated against SUBDIVIDER, any contractor, or the CITY as a result of failure to pay prevailing wages.
SUBDIVIDER shall defend, indemnify and hold harmless the CITY, Peters Engineering Group, its officials, officers, employees, representatives, agents and attorneys from and against any and all claims, damages, losses, judgments, liabilities, expenses and other costs, including, without limitation, litigation costs and attorney’s fees arising out of, resulting from or in any way in connection with any violation or claim of violation of any prevailing wage law, rule or regulation applicable to any portion or aspect of the Subdivision, the Work or the Improvements.
SUBDIVIDER’s obligation to defend, indemnify and hold the CITY harmless specifically includes, but is not limited to, any suit or administrative action against the CITY which claims a violation of any prevailing wage law, rule or regulation applicable to any portion or aspect of the Subdivision, Work or Improvements.
SUBDIVIDER’s obligations to defend, indemnify and hold the CITY, Peters Engineering Group, its officials, officers, employees, representatives, agents and attorneys harmless as set forth herein, shall include, but shall not be limited to, staff time, copying costs, court costs, the costs of any judgments or awards against the CITY for damages, losses, litigation costs or attorney fees arising out of any violation or claim of violation of any prevailing wage law, rule or regulation applicable to any portion or aspect of the Subdivision, Work or Improvements and costs of any settlement representing damages, litigation costs and attorney’s fees to be paid to other parties arising out of any such proceeding or suit.
The CITY may, at any time, require the SUBDIVIDER to reimburse the CITY for costs that have been, or which the CITY reasonably anticipates will be, incurred by the CITY during the course of any action. SUBDIVIDER shall reimburse the CITY within thirty (30) days of receipt of an itemized written invoice from the CITY. Failure of the SUBDIVIDER to timely reimburse the CITY shall be considered a material breach of this Agreement. All of the provisions of this paragraph 12 shall survive the completion of construction of the Improvements and completion of the Work.
13. Sole and Only Agreement. This Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the matters set forth herein and contains all of the covenants and agreements between the parties regarding such matters. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or in writing, have been made by any party or Subdivision Agreement for Tract No. 6381 Page 10
anyone acting on behalf of any party which are not embodied in this Agreement and no other agreement, statement or promises shall be valid or binding.
14. Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way.
15. Attorneys' Fees. If an action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other reasonable relief to which he may be entitled. With respect to any suit, action or proceeding arising out of or related to this Agreement, or the documentation related hereto, the parties hereby submit to the jurisdiction and venue of the Superior Court in the County of Fresno, State of California for any proceeding arising hereunder.
16. Successors and Assigns. The covenants and agreements contained in this Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and assigns of the parties hereto. This Agreement shall not be assigned by SUBDIVIDER without the express prior written consent of CITY, which consent may be withheld in the sole and absolute discretion of CITY.
17. Governing Law. This Agreement shall be construed and governed pursuant to the laws of the State of California.
18. Time of the Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the ___ day of _______________, 2022.
CITY OF FOWLER SUBDIVIDER
FOWLER CITY MANAGER KB Home South Bay Inc, a California Corporation, it’s Vice President
By: __________________________ By:
Wilma Tucker
APPROVED AS TO CONTENT: ATTEST:
By: By:
David Peters, PE Deputy City Clerk
City Engineer
Subdivision Agreement for Tract No. 6381 Page 11
EXHIBIT ‘A’
TENTATIVE TRACT MAP 6381
Subdivision Agreement for Tract No. 6381 Page 12
EXHIBIT "B"
IMPROVEMENT COST ESTIMATE
Estimated construction costs used in this Agreement are increased for projected inflation computed to the estimated mid-point of construction.
ESTIMATED
CONSTRUCTION COST
Site Preparation
Construction of all rough grading, fencing, and wall improvements as shown on the approved improvement plans and in accordance with City Standards and Specifications. $ 697,156
Sanitary Sewer System
Construction of all sanitary sewerage facilities as shown on the approved improvement plans in accordance with City Standards and Specifications. $ 296,060
Storm Drainage System
Construction of underground cross drains, storm sewerage conductor, $ 451,525 and disposal facilities as shown on the approved improvement plan in accordance with City Standards and Specifications.
Water System
Install all water mains, hydrants, services and appurtenances as shown on the approved Improvement Plans in accordance with City Standards and Specifications. $ 384,360
Dry Utilities
Install all gas, electric, telephone, cable, street lights, and other dry utilities as shown on the approved Improvement Plans in accordance with City and Utility Standards and Specifications. $ 764,000 Street Construction
Construct Type "B" asphalt concrete surfacing over Class 2 aggregate base, curb and gutter, sidewalk, wheelchair ramps, drive approaches, valley gutters, streetlights and misc. improvements as shown on the approved Improvement Plans in accordance with City Standards and Specifications. $ 905,604
Total Estimate Construction Costs = $ 3,498,705
Subdivision Agreement for Tract No. 6381 Page 13
SECURITY REQUIREMENTS
Performance $ 3,498,705
Labor and Material $ 1,749,352
Warranty $ 874,676
Monumentation Security $ 12,000
PLAN CHECK AND INSPECTION FEE
Improvement Plan Check and Inspection Fees (3%) = $104,961 Less Previously Paid = $26,240
Total Due = $78,721
Actual plan check and inspections fees in excess of the total amount provided herein shall be invoiced to the Owner by the City for Payment prior to acceptance of the improvements.
DEVELOPMENT FEES
All development fees are due and payable at the time of issuance of a building permit.
Development fees will be determined using the fee schedule in effect at the time of payment. 14'
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MARSHALL ESTATES II PARK A CONCEPTUAL DESIGN
E. BOO
N. JONNA AVENUE
MARSHALL ESTATES II BASIN TRAIL A CONCEPTUAL DESIGN
CITY COUNCIL OF THE CITY OF FOWLER
ITEM NO: 8-Ai
REPORT TO THE CITY COUNCIL
August 16, 2022
FROM THOMAS W. GAFFERY IV, Community & Economic Development Director
SUBJECT
APPROVE an agreement with Toole Design Group, LLC in the amount of $82,234 for downtown streetscape conceptual design.
RECOMMENDATION
Staff recommend the City Council approve the above proposed action.
BACKGROUND
City Staff solicited a Request for Qualifications for a “Downtown Streetscape Plan and Conceptual Design.” The goal of this solicitation was to find a highly-qualified firm to develop a comprehensive plan for streetscape elements such as outdoor seating and dining, public art, wayfinding signage, street furniture, lighting, landscaping, and others. The study area will be the Merced Street corridor from the Union Pacific railroad to Panzak Park, including two blocks of 5th, 6th & 7th Streets and alleys.
Eight proposals were submitted. After evaluating the proposals and conducting multiple rounds of interviews, staff determined Toole Design Group, LLC to be the most qualified and best value to perform the work. As a part of the evaluation, downtown business owners were invited to participate in the process. Talene Kasparian-Cleveland and Connie Khasigian participated in interviews with proposers.
This action will authorize Toole to proceed with tasks 1-4, as identified in Exhibit A of the Agreement.
Toole’s subconsultants include Opticos Design, who completed the 2007 Central Fowler Revitalization Plan, and Yamabe & Horn Engineering. Toole’s design process also includes a plan for robust Approve agreements with Toole Design Group, LLC
August 16, 2022