Tuesday, June 7, 2022
Meeting Agenda
Closed Session - 5:00 PM
HESPERIA CITY COUNCIL
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY
HOUSING AUTHORITY
COMMUNITY DEVELOPMENT COMMISSION
WATER DISTRICT
HESPERIA FIRE PROTECTION DISTRICT - SPECIAL MEETING
City Council Chambers
9700 Seventh Ave., Hesperia CA, 92345
City Clerk's Office: (760) 947-1007
City Council Members
Brigit Bennington, Mayor
William J. Holland, Mayor Pro Tem
Larry Bird, Council Member
Cameron Gregg, Council Member
Rebekah Swanson, Council Member
Nils Bentsen, City Manager
Eric Dunn, City Attorney
See page (3) for details on public meeting guidelines during the COVID-19 (Coronavirus) Pandemic
Amended Agenda
Green Sheet Item #5 Moved to New Business and information updated after posting the Agenda.
NOTE: In compliance with the Americans with Disability Act, if you need special assistance to participate in this meeting, please contact the City Clerk’s Office at (760) 947-1007 or (760) 947-1026. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility.
NOTICE AND CALL OF SPECIAL MEETING
HESPERIA FIRE PROTECTION DISTRICT
NOTICE IS HEREBY GIVEN that a special meeting of Hesperia Fire Protection District will be held on Tuesday, June 7, 2022, at 6:30 p.m. in the City Council Chambers, at 9700 Seventh Avenue, Hesperia, CA 92345.
B .. B Ch . ng1t enrnngton, air
Brigit Bennington, Mayor 9700 Seventh Avenue Bill Holland, Mayor Pro Tem Hesperia, CA 92345 Larry Bird, Council Member
Cameron Gregg, Council Member 760-947-1000 Rebekah Swanson, Council Member TD 760-947-1119
Nils Bentsen, City Manager www.cityofhesperia.us Gateway to the High Desert
City of Hesperia
Public Access to City Council Meetings:
City Council meetings are now open to the public within the guidelines provided by the State which may include wearing masks and socially distancing from other attendees.
Public Comments can be made in -person at City Council Meetings and/or can be submitted via telephone recording that will be played during the meeting.
City Council meetings may be viewed live or after the event on the City’s website at www.cityofhesperia.us.
Remote Public Comment:
Public Comments Made By-Telephone Process
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June 7, 2022City Council Meeting Agenda
REGULAR MEETING AGENDA
HESPERIA CITY COUNCIL
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY
HESPERIA HOUSING AUTHORITY
HESPERIA COMMUNITY DEVELOPMENT COMMISSION
HESPERIA WATER DISTRICT
HESPERIA FIRE PROTECTION DISTRICT - SPECIAL MEETING
9700 7th Avenue, Council Chambers, Hesperia, CA 92345
As a courtesy, please silence your cell phones and other electronic devices while the meeting is in session. Thank you.
Prior to action of the Council, any member of the audience will have the opportunity to address the legislative body on any item listed on the agenda, including those on the Consent Calendar.
Individuals wishing to speak during General Public Comments or on a particular numbered item must submit a speaker slip to the City Clerk with the agenda item noted. Speaker slips should be turned in prior to the public comment portion of the agenda or before an agenda item is discussed. Comments will be limited to three minutes for General Public Comments, Consent Calendar items and New Business items. Comments are limited to five minutes for Public Hearing items.
In compliance with the Brown Act, the City Council may not discuss or take action on non-agenda items or engage in question and answer sessions with the public. The City Council may ask brief questions for clarification; provide a reference to staff or other resources for factual information and direct staff to add an item to a subsequent meeting.
CLOSED SESSION - 5:00PM
Roll Call
Mayor Brigit Bennington
Mayor Pro Tem William J. Holland
Council Member Larry Bird
Council Member Cameron Gregg
Council Member Rebekah Swanson
Conference with Legal Counsel - Potential Litigation:
Government Code Section 54956.9(d)2
1. One (1) Case
Conference with Legal Counsel - Potential Litigation:
Government Code Section 54956.9(d)4
1. One (1) Case
Conference with Legal Counsel – Existing Litigation
Government Code Section 54956.9(d)1
1. Assistant Secretary for FHEO v. City of Hesperia, California, et al.; Case
June 7, 2022City Council Meeting Agenda
Number 09-16-4717-8
CALL TO ORDER - 6:30 PM
A. Invocation
B. Pledge of Allegiance to the Flag
C. Roll Call
Mayor Brigit Bennington
Mayor Pro Tem William J. Holland
Council Member Larry Bird
Council Member Cameron Gregg
Council Member Rebekah Swanson
D. Agenda Revisions and Announcements by City Clerk
E. Closed Session Reports by City Attorney
ANNOUNCEMENTS/PRESENTATIONS
1. Presentation of Certificates of Recognition to the Hesperia High School Golf Team for the 2022 Division 7 CIF Championship by the City Council.
GENERAL PUBLIC COMMENTS (For items and matters not listed on the agenda) Individuals wishing to speak during General Public Comments or on a particular numbered item are requested to submit a speaker slip to the City Clerk with the agenda item noted. Speaker slips should be turned in prior to the public comment portion of the joint agenda or before an agenda item is discussed. Comments will be limited to three minutes for General Public Comments, Consent Calendar items and New Business items. Comments are limited to five minutes for Public Hearing items.
In compliance with the Brown Act, the City Council may not discuss or take action on non-agenda items or engage in question and answer sessions with the public. The City Council may ask brief questions for clarification; provide a reference to staff or other resources for factual information and direct staff to add an item to a subsequent meeting.
JOINT CONSENT CALENDAR
1. Consideration of the Draft Minutes from the Regular Meeting held Tuesday, May 17, 2022.
Recommended Action:
It
is recommended that the City Council approve the Draft Minutes from the Regular Meeting held Tuesday, May 17, 2022.
Staff Person: Assistant City Clerk Erin Baum
Draft CC Min 2022-05-17Attachments:
June 7, 2022City Council Meeting Agenda
2. Warrant Run Report (City - Successor Agency - Housing Authority - Community Development Commission - Water)
Recommended Action:
It is recommended that the Council/Board ratify the warrant run and payroll report for the City, Successor Agency to the Hesperia Community Redevelopment Agency, Hesperia Housing Authority, Community Development Commission, and Water District.
Staff Person: Director of Administrative Services Casey Brooksher SR Warrant Run 6-7-2022
Attachment 1 - Warrant Run
Attachments:
3. Audited Financial Statements for Fiscal Year Ended June 30, 2021 Recommended Action:
It
is recommended that the City Council, Community Development Commission, Hesperia Housing Authority Board, Hesperia Water District Board, and Hesperia Fire Protection District Board receive and file the audited Financial Statements for the Fiscal Year Ended June 30, 2021.
Staff Person: Director of Administrative Services Casey Brooksher SR Audited Financial Statements 6-7-2022
Attachment 1 - 6 Available for review in the City Clerk's Office Attachments:
4. Approval of Applications for Prop 68 Per Capita Grant Funds Recommended Action:
It
is recommended that the City Council adopt Resolution No. 2022-044 approving applications for Per Capita Grant funds under California Proposition
68. Staff Person: Management Analyst Jamie Carone and Assistant City Manager Rachel Molina
SR Authorize Per Capita Grant Application 6-7-2022
Resolution 2022-044
Attachments:
5. Household Hazardous Waste Collection Agreement
Recommended Action:
It
is recommended that the City Council authorize the City Manager to execute a five-year Household Hazardous Waste Collection Agreement (Agreement) with San Bernardino County Fire Protection District (County) for operation of the Household Hazardous Waste (HHW) Facility.
Staff Person: Assistant City Manager Rachel Molina and Community Relations Specialist Marissa Pereyda
SR Household Hazardous Waste Agreement 6-7-2022
Attachment 1 - Household Hazardous Waste Agreement
Attachments:
June 7, 2022City Council Meeting Agenda
6. Contract with Inland Water Works
Recommended Action:
It is
recommended that the Board of Directors of the Hesperia Water District authorize the City Manager to enter into a one (1) year agreement with Inland Water Works in an amount not-to-exceed $185,000, for the purchase of Mueller water products.
Staff Person: Director of Public Works Jeremy McDonald
SR Contract with Inland Water Works 6-7-2022
Attachment 1 - Bid Results
Attachments:
7. Fleet Maintenance Services for Fiscal Year 2022-23
Recommended Action:
It is
recommended that the City Council and Board of Directors of the Hesperia Water District authorize the City Manager to enter into a one (1) year agreement with G & M Automotive Center, Inc. in a not-to-exceed amount of $250,000, for fleet maintenance services.
Staff Person: Director of Public Works Jeremy McDonald
SR Fleet Maintenance Services for Fiscal Year 2022-23 6-7-2022 Attachment 1- RFB 2021-22-014 - Bid Comparison
Attachment 2 - RFB 2021-22-015 - Bid Comparison
Attachment 3 - RFB 2021-22-016 - Bid Comparison
Attachments:
8. Award Professional Services Agreements for On-Call Engineering Services Recommended Action:
It is
recommended that the City Council and Board of Directors of the Hesperia Water District approve the award of a Professional Services Agreement (PSA) to three professional engineering design firms to provide On-Call Engineering Services for an initial term of three (3) years and each contract in an amount not to exceed $350,000 as follows:
Michael Baker International $350,000
David Evans and Associates, Inc. $350,000
IMEG Corporation $350,000
Staff Person: Assistant City Manager Rachel Molina and Project Construction Manager David Burkett
SR On-Call Engineering Services 6-7-2022Attachments:
9. Reject all Bids for I-15 Corridor Utility Improvements - Phase II Recommended Action:
It is
recommended that the City Council and Board of Directors of the Hesperia Water District reject all bids submitted for the I-15 Corridor Utility Improvements
June 7, 2022City Council Meeting Agenda
- Phase II project.
Staff Person: Assistant City Manager Rachel Molina and Project Construction Manager David Burkett
SR I-15 Corridor Utilities Phase II - Reject Bids 6-7-2022Attachments:
10. Non-Represented Employees’ Compensation and Benefit Plan Recommended Action:
It
is recommended that the City Council, the Board of Directors of the Hesperia Housing Authority, and the Board of Directors of the Hesperia Water District, adopt Joint Resolution No. 2022-45, HHA 2022-04, and HWD 2022-09, modifying the Non-Represented Employees’ Compensation and Benefit Plan.
Staff Person: Assistant City Manager Rachel Molina, Director of Administrative Services Casey Brooksher and Deputy Human Resources/Risk Management Director Rita Perez
SR Non-Represented Employees' Compensation and Benefit Plan 6-7-2022 Joint Resolution 2022-45
Attachment 2 - Non Represented Employees' Compensation and Benefit Plan Attachments:
CONSENT ORDINANCES
WAIVE READING OF ORDINANCES
Approve the reading by title of all ordinances and declare that said titles which appear on the public agenda shall be determined to have been read by title and further reading waived.
11. CUP19-00010, TPM22-00002 & DA22-00001 (Covington Group, Inc.; APNs:
3064-351-03, 3064-361-01, 3064-391-01, 3064-401-02)
Recommended Action:
Place on second reading and adopt by title waiving the text of Ordinance No. 2022-09 approving DA22-00001.
Staff Person: Senior Planner Ryan Leonard
SR CUP19-00010, TPM22-00002 & DA22-00001 5-17-2022
Attachments 1 - 7 Available for Review in the City's Website Ordinance 2022-09
Attachment 9 - Development Agreement
Attachment 10 - Planning Commission Agenda
Attachments:
12. Adoption of a Resolution Establishing the Formation and Certifying the Election Re
sults of Community Facilities District No. 2022-1 (Non-Residential Maintenance and Services)
Recommended Action:
Place on second reading and adopt by title waiving the text of Ordinance 2022-06, and adopt a Resolution Establishing the Formation of the City of Hesperia Community Facilities District No. 2022-1 (Non-Residential
June 7, 2022City Council Meeting Agenda
Maintenance and Services) (“CFD 2022-1”) and Future Annexation Area, 2) Adopt a Resolution Calling a Special Election and 2) Adopt a Resolution Declaring the Results of a Special Landowner Election and Directing the Recording of a Special Tax Lien.
Staff Person: Director of Administrative Services Casey Brooksher and Assistant City Manager Rachel Molina
SR Resolution Establishing the Formation of CFD 2022-1 5-17-2022 Attachment 1 - Resolution 2022-31 Formation of CFD
Attachment 2 - Resolution 2022-32 Calling for a Special Election Attachment 3 - Resolution 2022-33 Declaring Election Results Attachment 4 - Ordinance 2022-06 CFD 2022-1
Attachment 5 - CFD Special Tax Report
Attachments:
PUBLIC HEARING
Individuals wishing to comment on public hearing items must submit a speaker slip to the City Clerk with the numbered agenda item noted. Speaker slips should be turned in prior to an agenda item being taken up.
Comments will be limited to five minutes for Public Hearing items.
WAIVE READING OF ORDINANCES
Approve the reading by title of all ordinances and declare that said titles which appear on the public agenda shall be determined to have been read by title and further reading waived.
13. Amendments to Title 5 of Hesperia Municipal Code - Self-Certification Component of the Rental Housing Business License and Inspection Program and Implementation of a Self-Certification Fee
Recommended Action:
It is recommended that the City Council introduce and place on first reading Ordinance No. 2022-08 amending Title 5 of the Hesperia Municipal Code related to the Self-Certification component of the Rental Housing Business License and Inspection Program. It is also recommended that the Council adopt Resolution No. 2022-36, to implement a self-certification fee for the Rental Housing Business License and Inspection Program.
Staff Person: Administrative Analyst Jacquelyn Castillo SR Rental Housing Business License and Inspections 6-7-2022 Ordinance 2022-08
Attachment 2 - Exhibit A Title 5 Business License Regulations Resolution 2022-36
Attachment 4 - Exhibit A - City Fee Schedule Clean Copy Attachment 5 - Exhibit B - City Fee Schedule with Track Changes Attachments:
NEW BUSINESS
14. Fiscal Year (FY) 2022-23 Operating Budget Adoption
June 7, 2022City Council Meeting Agenda
Recommended Action:
It is recommended that the City Council/Board’s adopt the following Resolutions approving the FY 2022-23 Operating Budget for the City of Hesperia, Hesperia Housing Authority, Hesperia Fire Protection District, and Hesperia Water District:
1) City of Hesperia Resolution No. 2022-40 adopting the Fiscal Year 2022-23 Budget
2) City of Hesperia Resolution No. 2022-41 adopting the GANN Appropriations Limit
3) Hesperia Housing Authority Resolution HHA 2022-02
adopting the Fiscal Year 2022-23 Budget
4) Hesperia Fire Protection District Resolution HFPD 2022-02 adopting the Fiscal Year 2022-23 Budget
5) Hesperia Fire Protection District Resolution HFPD
2022-03 adopting the GANN Appropriations Limit
6) Hesperia Water District Resolution HWD 2022-06
adopting the Fiscal Year 2022-23 Budget
7) Joint Resolution No. 2022-42, HHA 2022-03, HFPD 2022-04, and HWD 2022-07 re-adopting the Financial Policies
SR Fiscal Year 2022-23 Operating Budget Adoption 6-7-2022 Attachment 1-6 - Budget Resolutions Combined
Joint Resolution 2022-42
Attachment 8 - Exhibit A Financial Policies Clean and Track Changes Attachments:
COUNCIL COMMITTEE REPORTS AND COMMENTS
The Council may report on their activities as appointed representatives of the City on various Boards and Committees and/or may make comments of general interest or report on their activities as a representative of the City.
CITY MANAGER/CITY ATTORNEY/STAFF REPORTS
The City Manager, City Attorney or staff may make announcements or reports concerning items of interest to the Council and the public.
ADJOURNMENT
Staff Person: Director of Administrative Services Casey Brooksher June 7, 2022City Council Meeting Agenda
I, Erin Baum, Assistant City Clerk of the City of Hesperia, California do hereby certify that I caused to be posted the foregoing agenda on Thursday, June 2, 2022 at 5:30 p.m. pursuant to California Government Code §54954.2. _____________________________
Erin Baum,
Assistant City Clerk
Documents produced by the City and distributed less than 72 hours prior to the meeting regarding items on the agenda will be made available in the City Clerk's Office during normal business hours.
City of Hesperia
Meeting Minutes - Draft
City Council
Tuesday, May 17, 2022 6:30 PM
REGULAR MEETING AGENDA
HESPERIA CITY COUNCIL
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY
HESPERIA HOUSING AUTHORITY
HESPERIA COMMUNITY DEVELOPMENT COMMISSION
HESPERIA WATER DISTRICT
CLOSED SESSION - 5:30 PM
Roll Call
Present: 5 - Mayor Bennington, Mayor Pro Tem Holland, Council Member Bird, Council Member G
regg, and Council Member Swanson
Conference with Legal Counsel - Potential Litigation: Government Code Section 54956.9(d)2
1. Two (2) Cases
Conference
with Legal Counsel – Existing LitigationGovernment Code Section 54956.9(d)1
1. Assistant Secretary for FHEO v. City of Hesperia, California, et al.; Case Number 09-16-4717-8 CALL TO ORDER - 6:30 PM
A. Invocation
B. Pledge of Allegiance to the Flag
C. Roll Call
Present: 5 - Mayor Bennington, Mayor Pro Tem Holland, Council Member Bird, Council Member G
regg, and Council Member Swanson
D. A genda Revisions and Announcements by City Clerk
None
E.
Closed Session Reports by City Attorney
No reportable action taken.
ANNOUNCEMENTS/PRESENTATIONS
1. Presentation to resident Yoselin Yara, Pride Enhancement Program honoree.
City Council Chambers
9700 Seventh Ave.
Hesperia CA, 92345
2. Presentation of Certificates of Recognition to the Oak Hills High School Softball Team 2022 MRL Championship b
y the City Council
3. Illegal Fire
works Enforcement Update by Tom Strong, Interim Deputy Fire Marshal.
GENERAL PUBLIC COMMENTS (For items and matters not listed on the agenda) Ramona Allen spoke on community issues.
Daniel Krist spoke on community issues.
Bob Nelson spoke on speaking limits.
JOINT CONSENT CALENDAR
Item number 8 was pulled from the consent calendar and voted on separately.
A motion was made by Bird, seconded by Holland, that the joint consent calendar, with item 8 removed, be approv
ed. The motion carried by the following vote:
Aye: 5 - Bennington, Bird, Swanson, Holland and Gregg
Nay: 0
1. Consideration of the Draft Minutes from the Regular Meeting held Tuesday, May 3, 2022.
Recommended Action:
It is recommended that the City Council approve the Draft Minutes from the Regular Meeting held
Tuesday, May 3, 2022.
Sponsors: Assistant Cit
y Clerk Erin Baum
2. Warrant Run Report (City - Successor Agency - Housing Authority - Community Development Comm
ission - Water)
Recommended Action:
It is recommended that the Council/Board ratify the warrant run and payroll report for the City, Succes sor Agency to the Hesperia Co
mmunityRedevelopment Agency, Hesperia Housing Authority, Comm unity Developm
ent Commission, and Water District.
Sponsors: Director of Administrative Services Casey Brooksher
3. Treasurer’s Cash Report for the unaudited period ended March 31, 2022.
Recommended Action:
It is recommended that the Council/Board accept the Treasurer’s Cash Report for the City, Succes sor Agency to the Hesperia Co
mmunity Redevelopment Agency, Hesperia Housing Authority, Community Development Commission, and Hesperia Water District.
Sponsors: Director of Administrative Services Casey Brooksher
4. Three-Year Maintenance and Licensing agreement with ECS imaging Recommended Action:
It is recommended that the City Council authorize the City Manager to enter into a three-year contra ct with ECS imaging (ECS),
in the amount of $89,794 plus a 5% contingency amount of $4,490 for a total not-to-exceed c
ontract amount of $94,284, to provide maintenance and licensing for the Electronic
Document Management System (Laserfiche).
Sponsors: Director of Administrative Services Casey Brooksher
5. Contract with Data Ticket, Inc. for Collection Services Recommended Action:
It is recommended that the City Council authorize the City Manager to execute a three-year sole source contract with Data Tick
et, Inc. in a not-to-exceed contract amount of $302,250, with an optional extensi on of two
years, for the management and collection of citations, cost recovery, appeals, and hearing offic er services.
Sponsors: Administrative
Analyst Jacquelyn Castillo
6. Award of Contract for Street Sweeping Services
Recommended Action:
It is recommended that the City Council authorize the City Manager to enter into a one-year contract with Guardian Street Sweeping i
n an amount not-to-exceed $357,585, for street sweeping services.
Sponsors: Director of Public Works Jeremy McDonald
7. Award of Contract for Unarmed Security Services
Recommended Action:
It is recommended that the City Council and Board of Directors of the Hesperia Water District (District) authorize the City Manager
to enter into a one-year contract with Infinity National Security Services, Inc. in an amount
not-to-exceed $118,500, for unarmed security services.
Sponsors: Director of Public Works Jeremy McDonald
8. Townsend Public Affairs Contract Amendment
Item 8 was voted on separately from the Consent Calendar Recommended Action:
It is recommended that the City Council authorize the City Manager to approve an amendm ent of
$55,000 to the existing Professional Services Agreement with Townsend Public Affairs for a revised not-to-exceed contract amount of $530,750, and approve a one-year contract extension for State Legislative Advocacy and State and Federal Funding Advocacy Services.
Sponsors: Management Analyst Jamie Carone
A motion was made by Holland, seconded by Gregg, that this item be approved. The motion carried by the following vote:
Aye: 5 - Bennington, Bird, Swanson, Holland and Gregg
Nay: 0
9. Memorandum of Understanding between City of Hesperia and Teamsters Local 1932 for the period of February 1, 2022 through Januar
y 31, 2024
Recommended Action:
It is recommended that the City Council adopt Resolution No. 2022-35 and the Board of Directors of the Hesperia Water District adopt Resolution No. 2022-05, approving the Memorandum of Understanding with Teamsters Local 1932 (Teamsters).
Sponsors: Assistant City Manager Rachel Molina and Director of Administrative Services Case y Brooksher
10. Professional Services Agreement with CivicPlus
Recommended Action:
It is recommended that the City Council authorize the City Manager to enter into a three (3) year agreement
with CivicPlus, LLC in an amount not-to-exceed $50,000, to provide online hosting and maintenance for the codification of the City’s Ordinances.
Sponsors: Director of Government Services/City Clerk Melinda Sayre
PUBLIC HEARING
11. Bond Opportunities for Land Development (BOLD)
Recommended Action:
It is recommended that the City Council hold a public hearing to receive comments regarding the California Mun
icipal Finance Authority (CMFA) Bond Opportunities for Land Development (BOLD); and adopt Resolution No. 2022-23, authorizing the City to join the CMFA; and adopt Resolution No. 2022-24 for the City to allow development projects within the City to participate in the BOLD Program.
Sponsors: Director of Administrative Services Casey Brooksher and Assistant City Manager Rachel Molina
A motion was made by Bird, seconded by Swanson, that this item be approved. The motion carried by th
e following vote:
Aye: 5 - Bennington, Bird, Swanson, Holland and Gregg
Nay: 0
12. Adoption of a Resolution Establishing the Formation and Certifying the Election Results of Community Facilities District N
o. 2022-1 (Non-Residential Maintenance and Services)
Recommended Action:
It is recommended that the City Council conduct the Public Hearing and after receiving public testimony and
deliberation and: 1) Adopt a Resolution Establishing the Formation of the City of Hesperia Community Facilities District No. 2022-1 (Non-Residential Maintenance and Services) (“CFD 2022-1”) and Future Annexation Area, 2) Adopt a Resolution Calling a Special Election and 2) Adopt a Resolution Declaring the Results of a Special Landowner Election and Directing the Recording of a Special Tax Lien.
Sponsors: Assistant City Manager Rachel Molina and Director of Administrative Services Casey Brooksher
A motion was made by Holland, seconded by Gregg, that Resolution 2022-31 Establishing Formation of CF
D 2022-1 be approved. The motion carried by the following vote:
Aye: 5 - Bennington, Bird, Swanson, Holland and Gregg
Nay: 0
A motion was made by Gregg, seconded by Swanson, that Resolution 2022-32 calling for a Special Election b
e approved. The motion carried by the following vote:
Aye: 5 - Bennington, Bird, Swanson, Holland and Gregg
Nay: 0
Assistant City Clerk Erin Baum canvassed the returns of the Special Election held on May 17, 2022 and tallied the votes as follows
;
Qualified Landowner votes = 197
Votes Cast = 197
Yes votes = 197
No votes = 0
A motion was made by Holland, seconded by Bennington, that Resolution 2022-33 declaring election
results and Ordinance 2022-06 directing the recording of the special tax lien be approved. The motion carried by the following vote:
Aye: 5 - Bennington, Bird, Swanson, Holland and Gregg
Nay: 0
13. CUP19-00010, TPM22-00002 & DA22-00001 (Covington Group, Inc.; APNs: 3064-351-03, 3064-361-01, 3064-391-01, 3
064-401-02)
Recommended Action:
The Planning Commission recommends that the City Council adopt Resolution No. 2022-37, recommending that the City Council make the environmental determination pursuant to the California Environmental Quality Act (CEQA) by certifying the Final Environmental Impact Report (FEIR) and adopting a statement of overriding considerations and adopt Resolution Nos. 2022-38 and 2022-39, approving CUP19-00010 and TPM22-00002 as well as Ordinance 2022-09, approving DA22-00001.
Sponsors: Assistant City Manager Rachel Molina and Senior Planner Ryan Leonard
A motion was made by Gregg, seconded by Holland, that this item be approved. The motion carried by th
e following vote:
Aye: 5 - Bennington, Bird, Swanson, Holland and Gregg
Nay: 0
NEW BUSINESS
14. City of Hesperia Community Assistant Program (CAP) - Grant Awards Recommended Action:
It is recommended that the City Council, after reviewing the Hesperia City Council Advisory Committee (CCAC) CAP app
licant rankings, Exhibit “A”, adopt Resolution No. 2022-25 to approve the Program Year (FY) 2022-23 CAP funding for each applicant.
Sponsors: Economic Development Manager Victor Knight and Administrative Analyst April Antonio A motion was made by Swanson, seconded by Bird, that this item be approved as amended. The motion carried by the following vote:
Aye: 5 - Bennington, Bird, Swanson, Holland and Gregg
Nay: 0
15. FY 2022-23 Budget Workshop #2 - Budget Update
Recommended Action:
It is recommended that the City Council and the Board of Directors of the Hesperia Water District receive and file this staff report, which provides information about the current status of the City of Hesperia’s proposed operating budget for FY 2022-23.
Sponsors: Director of Administrative Services Casey Brooksher Received and filed.
COUNCIL COMMITTEE REPORTS AND COMMENTS
Council Member Bird commented on Oak Hills HS softball recognition, congratulated Hesperia HS on first ever men's golf team CIF championship, the Sultana HS men's tennis team on MRL win, Sultana Design and Build construction on their competition win, student Paul Reis for CTE student of the year in this region, student Rick Cabrera on chosen pathway of the year win, Curt Chapman on CTE teacher of the year selection, and the Sultana HS Drumline for their state championship win, and commented on attendance at VVTA, upcoming HUSD graduations next week and thanked City staff, the City Manager, and the City Attorney.
Council Member Swanson commented on the City's good financial situation, recent National Day of prayer events, the Lime Street park playground ribbon cutting, attendance at a Special Districts meeting, attendance at the Hesperia HS etiquette dinner, upcomingHUSD graduations, attendance at the SBCTA meeting, passing of the MOU agreement with represented employees, the Cajon pass Construction freeway service patrol, and her thankfulness for services.
Council Member Gregg congratulated all 2022 HUSD graduates, and commented on the recent Mother's Day holiday, attendance at the Lime Street park playground ribbon cutting, traffic safety, thanked City Staff and wished a Happy Birthday to his daughter Jasmine.
Mayor Pro Tem Holland commented on SBCSD participation in fireworks enforcement, homeless issues with quality of life, praised various City staff, the City Manager, City Attorney and the Sheriff's and Fire Departments, for their continued work, and commented on an upcoming VVWRA meeting, reclaimed water issues, and the ongoing primary election cycle.
Mayor Bennington thanked staff for the CAP program presentation and recommendations, commented on National Day of Prayer events, the Lime St. park playground ribbon cutting, VVEDA meeting attendance, Coffee with the Mayor event, Tri Agency attendance, SB peace officer memorial visit, and the Ace Hardware ribbon cutting, congratulated 2022 HUSD graduates, congratulated Abigail Molina Hesperia HS valedictorian thanked Lt.
Hubbard for OHV enforcement,, thanked AC and Code for their responses, thanked police and fire, reminded citizens that fireworks are illegal, congratulated Oak Hills HS softball again, and wished Tammy Pelayes a belated birthday
CITY MANAGER/CITY ATTORNEY/STAFF REPORTS
None.
ADJOURNMENT
The meeting was adjourned at 9:19 pm in honor of 2022 HUSD graduates and Jasmine Gregg’s birthday. _____________________________
Erin Baum,
Assistant City Clerk
City of Hesperia
STAFF REPORT
DATE: June 07, 2022
TO: Mayor and Council Members
City Council, as Successor Agency to the Hesperia Community Redevelopment Agency
Chair and Commissioners, Hesperia Housing Authority
Chair and Commissioners, Community Development Commission Chair and Board Members, Hesperia Water District
FROM: Nils Bentsen, City Manager
BY: Casey Brooksher, Director of Administrative Services Anne Duke, Deputy Finance Director
Fatima Jacobo, Accountant
SUBJECT: Warrant Run Report (City – Successor Agency – Housing Authority – Community Development Commission – Water)
RECOMMENDED ACTION
It is recommended that the Council/Board ratify the warrant run and payroll report for the City, Successor Agency to the Hesperia Community Redevelopment Agency, Hesperia Housing Authority, Community Development Commission, and Water District.
BACKGROUND
The Warrant Run totals represented below are for th e period April 23, 2022 through May 13, 2022.
ATTACHMENT(S)
1. Warrant Runs
Agency/District Accounts Payable Payroll Wires Totals
City of Hesperia $2,546,860.85 $497,355.28 $0.00 $3,044,216.13 Successor Agency 0.00 0.00 0.00 0.00
Housing Authority 13,341.00 342.22 0.00 13,683.22
Community Development Commission 0.00 0.00 0.00 0.00
Water 160,798.31 208,504.45 0.00 369,302.76
Totals $2,721,000.16 $706,201.95 $0.00 $3,427,202.11
YEAR-TO PRIOR FY YTD
W/E W/E W/E WARRANT DATE DATE
FUND # FUND NAME 4/29/2022 5/6/2022 5/13/2022 TOTALS Wires TOTALS * TOTALS Accounts Payable
100 GENERAL 31,598.37$ 159, 347.21$ 1, 529,618.17$ 1, 720,563.75$ -$ 24, 749,508.84$ 21, 662,465.29$ 200 HESPERIA FIRE DISTRICT -$ -$ -$ -$ -$ -$ 1, 917.67$ 204 MEASURE I - RENEWAL 615.00$ 4, 172.55$ -$ 4, 787.55$ -$ 264, 998.38$ 599, 107.11$ 207 LOCAL TRANSPORT-SB 325 -$ -$ 487. 50$ 487. 50$ -$ 29, 153.66$ 16, 902.70$ 209 GAS TAX-RMRA -$ -$ -$ -$ -$ 68, 083.24$ 2, 893,072.44$ 210 HFPD (PERS) -$ -$ -$ -$ -$ 1, 007,746.00$ 975, 994.00$ 251 CDBG 5,652.50$ -$ 949. 75$ 6, 602.25$ -$ 1, 174,475.35$ 779, 902.50$ 254 AB2766 - TRANSIT -$ -$ -$ -$ -$ -$ -$
256 ENVIRONMENTAL PROGRAMS GRANT -$ 52. 06$ 217. 60$ 269. 66$ -$ 33, 654.55$ 27, 621.48$ 257 NEIGHBORHOOD STABILIZATION PROG -$ -$ -$ -$ -$ -$ 7, 013.56$ 258 CDBG-CV CARES ACT -$ -$ -$ -$ -$ -$ 19, 446.90$ 260 DISASTER PREPARED GRANT -$ -$ -$ -$ -$ -$ -$
263 STREETS MAINTENANCE 13,933.64$ 48, 455.36$ 44, 614.17$ 107, 003.17$ -$ 1, 503,245.95$ 1, 827,835.31$ 300 DEV. IMPACT FEES - STREET 1,952.32$ -$ -$ 1, 952.32$ -$ 49, 585.90$ 2, 350,327.05$ 301 DEV. IMPACT FEES - STORM DRAIN 50,647.50$ -$ -$ 50, 647.50$ -$ 98, 384.50$ 82, 663.17$ 302 DEV. IMPACT FEES - FIRE -$ -$ -$ -$ -$ -$ -$
303 DEV. IMPACT FEES - POLICE -$ -$ -$ -$ -$ 23, 330.00$ -$ 304 DEV. IMPACT FEES - PUBLIC WKS. -$ -$ -$ -$ -$ -$ -$ 306 DEV. IMPACT FEES - 2018-STREETS 323.56$ 27, 668.50$ 337. 50$ 28, 329.56$ -$ 2, 180,597.86$ -$ 312 DIF 2018-POLICE FACILITIES -$ -$ -$ -$ -$ 6, 888.17$ -$ 313 DIF A-04 DRAINAGE -$ -$ -$ -$ -$ 963, 699.00$ -$ 396 DEVELOPMENT IMPACT -$ -$ -$ -$ -$ -$ -$
399 FEMA-1203-DR (DISASTER) -$ -$ -$ -$ -$ -$ -$
400 2004 STREETS -$ -$ -$ -$ -$ -$ -$
401 CITY DEBT SERVICES -$ -$ -$ -$ -$ -$ -$
402 WATER RIGHTS ACQUISITION -$ -$ -$ -$ -$ 1, 436,593.88$ 1, 435,862.80$ 403 2013 REFUNDING LEASE REV BONDS -$ -$ -$ -$ -$ 865, 585.83$ 239, 998.57$ 501 CFD 91-3 BELGATE -$ -$ -$ -$ -$ -$ -$
504 CITY WIDE STREETS - CIP 1,309.45$ -$ -$ 1, 309.45$ -$ 1, 540,617.89$ 434, 860.49$ 509 CITY FACILITIES CIP -$ -$ -$ -$ -$ -$ -$
800 EMPLOYEE BENEFITS 106,679.51$ 254, 108.23$ 108, 579.65$ 469, 367.39$ -$ 6, 685,975.31$ 6, 296,120.75$ 801 TRUST/AGENCY 5,267.97$ 49, 311.38$ 80, 127.40$ 134, 706.75$ -$ 2, 728,889.91$ 1, 863,691.07$ 802 AD 91-1 AGENCY -$ -$ -$ -$ -$ -$ -$
804 TRUST-INTEREST BEARING -$ 15, 549.00$ 5, 285.00$ 20, 834.00$ -$ 87, 554.00$ 966. 55$ 807 CFD 2005-1 -$ -$ -$ -$ -$ 1, 281,548.77$ 1, 851,084.10$ 808 HFPD (TRANSITION) -$ -$ -$ -$ -$ 369, 875.18$ 349, 739.56$ 815 PLAN REVIEW TRUST - FRONTIER -$ -$ -$ -$ -$ -$ -$ CITY 217,979.82$ 558,664.29$ 1, 770,216.74$ 2, 546,860.85$ -$ 47, 149,992.17$ 43, 716,593.07$ 163 REDEVELOP OBLIG RETIREMENT-2018 -$ -$ -$ -$ -$ 9, 999,319.34$ 9, 724,979.08$ SUCCESSOR AGENCY -$ -$ -$ -$ -$ 9, 999,319.34$ 9, 724,979.08$ 370 HOUSING AUTHORITY 13,341.00$ -$ -$ 13, 341.00$ -$ 48, 948.18$ 67, 323.70$ HOUSING AUTHORITY 13,341.00$ -$ -$ 13, 341.00$ -$ 48, 948.18$ 67, 323.70$ 170 COMMUNITY DEVELOPMENT COMMISSION -$ -$ -$ -$ -$ -$ 1, 135.42$ COMMUNITY DEVELOPMENT COMMISSION -$ -$ -$ -$ -$ -$ 1, 135.42$ 700 WATER OPERATING 44,933.33$ 85, 626.38$ 22, 352.39$ 152, 912.10$ -$ 6, 988,531.45$ 13, 389,811.78$ 701 WATER CAPITAL -$ -$ -$ -$ -$ 89, 261.90$ 1, 104,891.21$ 710 SEWER OPERATING 31.38$ 2, 882.56$ 2, 162.82$ 5, 076.76$ -$ 4, 016,473.44$ 3, 302,424.18$ 711 SEWER CAPITAL 1,685.00$ 778. 18$ -$ 2, 463.18$ -$ 160, 543.77$ 1, 879,504.12$ 713 SEWER CAPITAL REHAB AND REPLACE -$ -$ -$ -$ -$ -$ 54, 882.50$ 720 RECLAIMED WATER OPERATIONS -$ 346. 27$ -$ 346. 27$ -$ 236, 879.82$ 234, 635.83$ WATER 46,649.71$ 89,633.39$ 24, 515.21$ 160, 798.31$ -$ 11, 491,690.38$ 19, 966,149.62$ ACCOUNTS PAYABLE TOTAL 277,970.53$ 648,297.68$ 1, 794,731.95$ 2, 721,000.16$ -$ 68, 689,950.07$ 73, 476,180.89$ REG. PAYROLL
City 259,328.14$ -$ 238, 027.14$ 497, 355.28$ -$ 5, 457,066.25$ 4, 645,980.08$ Housing Authority 172.13$ -$ 170. 09$ 342. 22$ -$ 1, 668.70$ 4, 384.43$ Water 105,061.19$ -$ 103, 443.26$ 208, 504.45$ -$ 2, 382,793.84$ 2, 186,255.94$ PAYROLL TOTAL 364,561.46$ -$ 341, 640.49$ 706, 201.95$ -$ 7, 841,528.79$ 6, 836,620.45$ City of Hesperia
WARRANT RUNS
04/22/2022-05/13/2022
* The year to date totals for this Warrant Report are for the 2021-22 fiscal year starting July 1, 2021; however, the year-to-date totals include a total of $219,412.79 in payments issued on 6/28/21 and 6/29/21.
Attachment 1
City of Hesperia
STAFF REPORT
DATE: June 7, 2022
TO: Mayor and Council Members
Chair and Commission, Community Development Commission
Chair and Board Members, Hesperia Housing Authority
Chair and Board Members, Hesperia Water District
Chair and Board Members, Hesperia Fire Protection District
FROM: Nils Bentsen, City Manager
BY: Casey Brooksher, Director of Administrative Services Anne M. Duke, Deputy Finance Director
SUBJECT: Audited Financial Statements for Fiscal Year Ended June 30, 2021
RECOMMENDED ACTION
It is recommended that the City Council , Community Development Commission, Hesperia Housing Authority Board, Hesperia Water District Board, and Hesperia Fire Protection District Board receive and file the audited Financial Statements for the Fiscal Year Ended June 30, 2021.
BACKGROUND
City governments that receive Federal funding in excess of $750,000 in a fiscal year are required by Federal law (Office of Management and Budget [OMB] Circular A -133) to be audited. In addition, the bond documents for the City’s debt require annual audits of the City’s financial transactions.
ISSUES/ANALYSIS
The City’s independent auditor, CliftonLarsonAllen LLP (CLA) performed the audit for Fiscal Year 2020-21.
The documents that comprise the Financial Statements, commonly referred to as the Audit for the City, are as follows:
City of Hesperia–Annual Comprehensive Financial Report – June 30, 2021 Single Audit of Federally Assisted Grant Programs – June 30, 2021 Community Development Commission–Component Unit Financial Statements – June 30, 2021 Hesperia Housing Authority–Component Unit Financial Statements – June 30, 2021 Hesperia Water District–Component Unit Financial Statements – June 30, 2021 Hesperia Fire Protection District–Component Unit Financial Statements – June 30, 2021
The Hesperia Housing Authority Component Unit Financial Statement was d istributed on December 31, 2021 in c ompliance with State requirements. The Annual Comprehensive Financial Report (ACFR) was distributed on April 11, 2022, and the remaining Component Unit Financial Statements were provided to the Council on June 2, 2022. Public copies of all the
Staff Report to the Mayor and City Council
Audited Financial Statements for Fiscal Year Ended June 30, 2021 June 7, 2022
above-referenced documents are available in the City Clerk’s Office and have been posted on the City’s website.
Daphnie Munoz from CliftonLarsonAllen will be available via phone, along with staff, to answer any questions regarding the results of the audit for Fiscal Year 2020-21.
As a matter of information, the City was awarded the Certificate of Achievement for Outstanding Financial Reporting for Fiscal Year 2019-20 by the Government Finance Officer s’ Association (GFOA). That was the nineteenth consecutive year the City has earned this prestigious award.
FISCAL IMPACT
None.
ALTERNATIVES
1. Provide alternative direction to staff.
ATTACHMENTS
The reports listed below were previously submitted to the Council (#1 on April 11, 2022, #2, #4, #5, and #6 on June 2, 2022, and #3 on December 31, 2021). Public copies are available in the City Clerk’s Office and have been posted on the City’s website:
1. June 30, 2021 Annual Comprehensive Financial Report
2. June 30, 20 21 Component Unit Financial Statements for the Community Development Commission
3. June 30, 2021 Component Unit Financial Statements for the Hesperia Housing Authority
4. June 30, 2021 Component Unit Financial Statements for the Hesperia Water District
5. June 30, 2021 Component Unit Financial Statements for the Hesperia Fire Protection District
6. June 30, 2021 Single Audit of Federally Assisted Grant Programs
ATTACHMENT 1-6 AVAILABLE FOR REVIEW IN THE CITY CLERK’S OFFICE
THIS PAGE LEFT INTENTIONALLY BLANK
City of Hesperia
STAFF REPORT
DATE: June 7, 2022
TO: Mayor and Council Members
FROM: Nils Bentsen, City Manager
BY: Rachel Molina, Assistant City Manager
Jamie Carone, Management Analyst
SUBJECT: Approval of Applications for Prop 68 Per Capita Grant Funds
RECOMMENDED ACTION
It is recommended that the City Council adopt Resolution No. 2022-044 approving applications for Per Capita Grant funds under California Proposition 68.
BACKGROUND
The California Drought, Water Parks, Climate, Coastal Protection, and Outdoor Access for All Act of 2018 (Prop 68) provides Per C apita funding for communities to invest in parks in local jurisdictions. Under the Per Capita Grant Program, the City of Hesperia received an allocation of $177,952; under a companion program, the Urban County Per Capita grant program, the City received an additional allocation of $14,723. These funds are to be used for local park rehabilitation, creation and improvement. Funding cannot be used for maintenance or repairs.
While the City of Hesperia does not have a parks department, the City owns several park properties that may benefit from improvements, including Hesperia Lake Park, Hes peria Golf Course, Hesperia Civic Plaza Park , and Maple Park. At this time, City sta ff is evaluating opportunities to best use the funding made available through Prop 68 on a City -owned park property.
ISSUES/ANALYSIS
Prior to a project being considered by the State of California under this Prop 68 Per Capita Grant Program, each jurisdiction must obtain approval to accept the funding through a resolution of their governing board.
Should the City Council adopt R esolution No. 2022-044, approving applications for Per Capita Grant funds under California Prop 68, City staff will have the ability to prepare project proposals for consideration.
FISCAL IMPACT
Without adoption of this resolution, the City will not be able to accept Prop 68 Per Capita Grant funding in the amount of $192,675.
Staff Report to the City Council
Approval of Applications for Prop 68 Per Capita Grant Funds June 7, 2022
ALTERNATIVES
1. Provide alternative direction to staff
ATTACHMENT(S)
1. Resolution No. 2022-044
RESOLUTION NO. 2022-044
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HESPERIA,
CALIFORNIA, APPROVING APPLICATIONS FOR PER CAPITA GRANT FUNDS
WHEREAS, he State Department of Parks and Recreation has been delegated the responsibility by the Legislature of the State of California for the administration of the Per Capita Grant Program, setting up necessary procedures governing application(s); and
WHEREAS, said procedures established by the State Department of Parks and Recreation require the grantee’s Governing Body to certify by resolution the approval of project application(s) before submission of said applications to the State; and
WHEREAS, the grantee will enter into a contract(s) with the State of California to complete project(s);
NOW THEREFORE, BE IT RESOLVED BY THE CITY OF HES PERIA CITY COUNCIL AS FOLLOWS:
1. Approves the filing of project application(s) for Per Capita program grant project(s); and
2. Certifies that said grantee has or will have available, prior to commencement of project work utilizing Per Capita funding, sufficient funds to complete the project(s); and
3. Certifies that the grantee has or will have sufficient funds to operate and maintain the project(s), and
4. Certifies that all projects proposed will be consistent with the park and recreation element of the City of Hesperia general or recreation plan (PRC §80063(a)), and
5. Certifies that these funds will be used to supplement, not supplant, lo cal revenues in existence as of June 5, 2018 (PRC §80062(d)), and
6. Certifies that it will comply with the provisions of §1771.5 of the State Labor Code, and
7. (PRC §80001(b)(8)(A -G)) To the extent practicable, as identified in the “Presidential Memorandum--Promoting Diversity and Inclusion in Our National Parks, National Forests, and Other Public Lands and Waters,” dated January 12, 2017, the City of Hesperia will consider a range of actions that include, but are not limited to, the following:
(A) Conducting active outreach to diverse populations, particularly minority, low -income, and disabled populations and tribal communities, to increase awareness within thos e communities and the public generally about specific programs and opportunities. (B) Mentoring new environmental, outdoor recreation, and conservation leaders to increase diverse representation across these areas.
(C) Creating new partnerships with state, local, tribal, private, and nonprofit organizations to expand access for diverse populations.
(D) Identifying and implementing improvements to existing programs to increase visitation and access by diverse populations, particularly minority, low -income, a nd disabled populations and tribal communities.
Resolution City Council No. 2022-044
APPROVING APPLICATIONS FOR PER CAPITA GRANT FUNDS
(E) Expanding the use of multilingual and culturally appropriate materials in public communications and educational strategies, including through social media strategies, as appropriate, that target diverse populations.
(F) Developing or expanding coordinated efforts to promote youth engagement and empowerment, including fostering new partnerships with diversity -serving and youth - serving organizations, urban areas, and programs.
(G) Identifying possible staff liaisons to diverse populations.
8. Agrees that to the extent practicable, the project(s) will provide workforce education and training, contractor and job opportunities for disadvantaged communities (PRC §80001(b)(5)).
9. Certifies that the grantee shall not reduce the amount of funding otherwise available to be spent on parks or other projects eligible for funds under this division in its jurisdiction. A one-time allocation of other funding that has been expended for parks or other projects, but which is not available on an ongoing basis, shall not be considered when calculating a recipient’s annual expenditures. (PRC §80062(d)).
10. Certifies that the grantee has reviewed, understands, and agrees to the General Provisions contained in the contract shown in the Procedural Guide; and
11. Delegates the authority to the City Manager, or his or her designee, to conduct all negotiations, sign and submit all documents, including, but not limited to applications, agreements, amendments, and payment requests, which may be nece ssary for the completion of the grant scope(s); and
12. Agrees to comply with all applicable federal, state and local laws, ordinances, rules, regulations and guidelines.
ADOPTED AND APPROVED this 7th day of June, 2022.
______________________________
Brigit Bennington, Mayor
ATTEST:
____________________________
Erin Baum, Assistant City Clerk
City of Hesperia
STAFF REPORT
DATE: June 7, 2022
TO: Mayor and Council Members
FROM: Nils Bentsen, City Manager
BY: Rachel Molina, Assistant City Manager
Jamie Carone, Management Analyst
Marissa Pereyda, Community Relations Specialist
SUBJECT: Household Hazardous Waste Collection Agreement
RECOMMENDED ACTION
It is recommended that the City Council authorize the City Manager to execute a five -year Household Hazardous Waste Collection Agreement (Agreement) with San Bernardino County Fire Protection District (County) for operation of the Household Hazardous Waste (HHW) Facility.
BACKGROUND
The California Public Resources Code (Section 57000 et seq.) requires cities and counties to prepare a Household Hazardous Waste Element (HHWE), which identifies a program for the safe collection, recycling, treatment, and disposal of hazardous wastes which are generated by households, and which should be separated from the solid waste stream. San Bernardino County, and each of the cities in the County , have developed HHWEs which identify a county - wide cooperative program for the management of HHW.
The City’s five-year Household Hazardous Waste Collection Agreement with the County expires on June 30, 2022. The agreement outlines the County’s operation of the HHW facility. The HHW facility not only satisfies HHWE requirements but also protects the health and welfare of Hesperia residents by removing hazardous waste from homes and diverting it from landfills.
In 2021, Hesperia residents disposed of 224,297 lbs. (based on calculated waste averages) of HHW, with 3,415 residents utilizing the Hesperia facility. Two hundred and fifty-eight residents used other County HHW collection facilities. A breakdown of waste types collected in 2021 is included below.
Waste Amounts
(lbs.) Waste Amount
(lbs.)
Motor oil/oil products 65,494.72 Compressed gas cylinders 2,018.67 Cathode ray tubes (CRT) 36,784.71 Fluorescent tubes 1,794.38 Latex paint 31,625.88 NiCad Batteries 1,794.38
Electronic waste 23,999.78 Aerosols 1,570.08
Oil based paints 17,495.17 Bulk Flammable Liquids 1,570.08 Flammable liquids/solids 9,420.47 Cooking Oils 1,570.08 Waste exchange materials 5,831.72 Poison (excluding aerosols) 1,345.78
Staff Report to the Mayor and Council Members
Household Hazardous Waste Collection Agreement
June 7, 2022
Waste Amounts
(lbs.) Waste Amount
(lbs.)
Antifreeze 4,261.64 Oxidizers 1,345.78
Household batteries 3,813.05 Corrosive Bases 1,121.49
Lead/acid batteries 3,140.16 Pharmaceuticals 1,121.49
Home generated sharps 2,691.56 Other 1,121.49
Oil filters 2,467.27 Corrosive acids 897.19
ISSUES/ANALYSIS
The new, revised Agreement with the County will cover a five -year period starting July 1, 2022 through June 30, 2027. The contract expiring June 30, 2022, included a 3% annual rate increase based on the U.S. Bureau of Labor Statistics’ Consumer Price Index (CPI). The County does not wish to increase the new contract according to the current CPI, which as of March 2022 was 8.5 percent. The new Agreement includes a rate increase of 0.25% each year of the 5-year agreement, starting at 3% for FY 2022-23 and increasing gradually to 4% for FY 2026-27.
Over the last five years, the cost of supplies, disposal, and staffing has increased, along with the amount of waste collected by the County. The 0.25% annual increase along with changes in the facility’s hours of operation will allow the County to continue providing necessary services to the City of Hesperia. Current operating hours are Tuesday and Thursday from 9:00 a.m. to 1:00 p.m. and Saturday from 9:00 a.m. to 3:00 p.m. Per the new Agreement, operating hours will be Thursday from 9:00 a.m. to 1:00 p.m. and Saturday from 9:00 a.m. to 2:00 p.m. Residents typically utilize the facility the least on Tuesdays.
FISCAL IMPACT
The City shall pay the district an amount not to exceed $977,738.98 for the five -year term, as outlined below. Per the City’s franchise agreement with Advance Disposal, all costs associated with the County Agreement for HHW Facility services are reimbursed by Advance Disposal. As a result, there is net zero cost to the City for the Agreement.
Fiscal Year Annual Amount Amount Per Quarter
2022/2023 $182,315.06 $45,578.76
2023/2024 $188,240.29 $47,060.07
2024/2025 $194,828.70 $48,707.17
2025/2026 $202,134.77 $50,533.69
2026/2027 $210,220.16 $52,555.04
ALTERNATIVE(S)
1. Provide alternative direction to staff.
ATTACHMENT(S)
1. Household Hazardous Waste Collection Agreement with County
Green Sheet Item #5 Information updated after the Agenda was posted.
THE INFORMATION IN THIS BOX IS NOT A PART OF THE CONTRACT AND IS FOR COUNTY USE ONLY Contract Number
San Bernardino County Fire
Protection District
Department Contract Representative
Telephone Number
Contractor
Jose Rodriguez
(909) 382-5401
City of Hesperia
Marissa Pereyda
(760) 947-1019
SAP Number
Contractor Representative
Telephone Number
Contract Term
Original Contract Amount
Amendment Amount
Total Contract Amount
Cost Center
July 1, 2022 through June 30, 2027
$977,738 .98
$977 ,738.98
IT IS HEREBY AGREED AS FOLLOWS:
HOUSEHOLD HAZARDOUS WASTE COLLECTION AGREEMENT
This Agreement is made and entered into between the San Bernardino County Fire Protection District, hereinafter referred to as "District" and the City of Hesperia hereinafter referred to as the "City." RECITALS:
WHEREAS, the California Public Resources Code (Section 47000 et seq.) requires cities and counties to prepare a Household Hazardous Waste Element which identifies a program for the safe collection , recycling, treatment and disposal of hazardous wastes which are generated by households in the city or county and which should be separated from the solid waste stream; and, WHEREAS, San Bernardino County and each of the cities in the County have developed Household Hazardous Waste Elements (HHWE) which identify a county-wide cooperative program for the management of Household Hazardous Waste ; and,
WHEREAS, the existing Household Hazardous Waste program operated by the District is consistent with the adopted HHWE; and,
Standard Contract Page 1 of 7
WHEREAS, the District's Section of Hazardous Materials, is a section of the District responsible for the safe management of hazardous waste; and,
WHEREAS, the City desires for the protection, health and welfare of the public and its personnel , the emoval of hazardous waste from homes so that such materials will pose no danger in the event of fire, the prevention of potential environmental degradation and the conservation of resources through recycling.
NOW, THEREFORE, in consideration of mutual covenants and conditions the parties hereto agree as follows :
WITNESSETH:
RESPONSIBILITIES AND DUTIES OF THE CITY
1. The City agrees to allow the operation of a Household Hazardous Waste Collection Facility (hereinafter referred to as "Facility") for the District and City at the Hesperia Fire Station , 17443 Lemon Street, Hesperia, California . The District shall staff the Facility when it is in operation . The Facility will e open to County residents for collection of Household Hazardous Waste at least ten (10) hours per month, except during inclement weather. The City approves the Facility's storage area(s) of ignitable and/or reactive waste designated by the District. The City approves the Facility's traffic control which is irected by authorized staff.
2. Reserved.
3. Reserved.
4. The City shall publicize to its residents the need to properly reduce, recycle, store, transport and dispose of Household Hazardous Waste and inform its residents of the availability of nearby household hazardous waste collection facilities for safe management of household hazardous waste , in the manner and form recommended by District.
5. The City shall publicize to its residents the maximum quantities of hazardous waste allowed for transportation which are containers no larger than 5 gallons and. maximum quantities of 15 gallons or 125 pounds per trip brought to a household hazardous waste collection facility per participant.
6. The City shall publicize to its small businesses that need to dispose of small quantities of business waste to contact the District and make an appointment to use the Very Small Quantity Generator (VSQG) program for proper disposal.
7. The City shall publicize to its residents that home generated sharps containers shall only contain needles, lancets and syringes with a needle attached that must be completely spent (used and no liquid remaining, this includes EpiPens). The public may use 2 gallon or smaller heavy-duty plastic household containers as an alternative to plastic bio-hazard sharps containers . The container should be leak-resistant , remain upright during use and have a tight fitting, puncture-resistant lid, such as a plastic laundry detergent container. Containers consisting of glass, metal, cardboard or paper will not be accepted.
8. Agreement Compliance . City agrees to comply with all applicable Federal, State and County laws, regulations and policies in carrying out its responsibilities under this Agreement.
RESPONSIBILITIES AND DUTIES OF THE DISTRICT
9. The District shall continue to operate a comprehensive Household Hazardous Waste Program (Program) for the safe collection, recycling , treatment and disposal of household hazardous waste , including universal waste , Home-generated Sharps (HGS) and pharmaceutical waste excluding controlled substances . The District program shall be based on a Central Processing Facility and a regional network of collection centers sited so as to provide safe, convenient service to the public in a cost-effective manner.
Revised 7 /15/19 Page 2 of 7
10. The District, acting as the generator of household hazardous waste , shall assume responsibility for maintaining the necessary site permits and responsibility for the on-site management , transportation , recycling and disposal of the materials and waste collected at the Facility site. 11 . The District will provide two County employees to operate the Facility every Thursday and Saturday at the agreed upon publicized operations time. Thursdays 9:00am to 1 :00 pm and Saturdays from 9:00 am to 2:00 pm; unless the Thursday or Saturday falls on a holiday observed by the County.
12. All personnel provided by the District are employees of the District, and, as such, will be supervised and trained by the District and covered by the District's Workers ' Compensation Program . District personnel will be trained to meet or exceed Cal OSHA requirements .
13. The operations at the Facility will be directed by, and District personnel shall be trained according to, the District's "Satellite Facilities Operations Manual", which designates waste to be accepted, defines a categorization scheme for wastes anticipated , and specifies emergency procedures to be followed . This document is referenced in and required by the Permit by Rule authorization to operate which is issued by San Bernardino County Certified Unified Program Agency . If there are any changes to the "Satellite Facilities Operations Manual", the District shall provide special training sessions to District personnel as soon as practicable with respect to said changes .
14. The "Satellite Facilities Operations Manual" shall be consistent with or exceed all state and federal regulations applicable to Household Hazardous Waste facilities and amended as necessary .
15. The District shall provide a secure storage shed. The District will also provide approved waste storage containers , meeting the specifications of the Department of Transportation for the disposal of hazardous waste and sufficient absorbent materials for "over packing" the waste containers. At the termination or expiration of this Agreement , all items provided by the District shall belong to the District, unless otherwise agreed upon in writing . The District will provide an Emergency Coordinator to offer support and assistance to the City during Facility operating hours excluding County observed holidays.
16. The District shall either remove the wastes or independently contract with a licensed hazardous waste hauler to remove the accumulated wastes , monthly, and to recycle or dispose of wastes at an approved facility, at no additional cost to the City.
17. The District shall provide an annual report to the City, which shall include the amounts and types of waste collected, participation by jurisdiction , and final disposition of the waste . The report will be provided at no additional cost to the City.
18. The District shall compile and provide to the California Department of Resources Recycling and Recovery (CalRecycle), the Department of Toxic Substances Control, and the Certified Unified Program Agency, the City's Annual Form 303 Report. The reports will be provided at no additional cost to the City.
19. The District shall provide to the City, flyers/brochures/education material that shall be distributed by the City electronically. Hard copies will also be provided upon request , at no additional cost to the City.
20. The District shall charge any business that disposes of household hazardous waste the actual cost of disposal as indicated in District's fee ordinance .
21 . The District shall provide an electronic biohazardous waste label to every participant that disposes of home generated sharps. As provided in Paragraph 7, the public may use 2 gallon or smaller heavy-duty plastic household containers such as a plastic laundry detergent container as an alternative to plastic bio-hazard sharps containers . The biohazardous waste label shall be placed on the rigid heavy-duty, puncture-resistant plastic container used to dispose of home generated sharps.
CONSIDERATION
22. In consideration for the services provided and except as otherwise provided in this Agreement , City shall pay the District the following amount not to exceed $977,738 .98:
Revised 7/15/19 Page 3 of 7
Fiscal Year Annual Amount Amount oer auarter
2022/2023 $182,315.06 $45,578.76
2023/2024 $188,240.29 $47,060.07
2024/2025 $194,828.70 $48,707.17
2025/2026 $202,134.77 $50,533.69
2026/2027 $210,220.16 $52,555.04
23. Payments will be due on July 15, October 15, January 15, and April 15 of each year through the term of the contract.
TERM AND TERMINATION
24.This Agreement shall be effective July 1, 2022 and shall remain in effect through June 30, 2027, but may be renewed for specified periods, unless, otherwise terminated or amended.
25.Notwithstanding the foregoing, either party may terminate this Agreement at any time upon 90 days prior written notice to the other party.
INSURANCE AND INDEMNIFICATION
26. City and District are authorized self-insured public entities for purposes of Professional Liability, General Liability, Automobile Liability and Workers ' Compensation and warrant that through their res ective programs of self-insurance , they have adequate coverage or resources to protect against liabilities arising out of the performance of the terms , conditions or obligations of this Agreement.
27. District agrees to indemnify , defend (with counsel reasonably approved by City) and hold harmless City and its authorized officers , employees , agents and volunteers from any and all claims , actions , losses, damages , and/or liability arising out of the performance of this Agreement by District, and/or its authorized officers, employees , agents , contractors or volunteers , including the acts, errors , or omissions of istrict and for any costs or expenses incurred by City on account of any claim except where such indemnification is prohibited by law. This indemnification provision shall apply regardless of the existence or degree of fault of indemnities . The District's indemnification obligation applies to City's "active" as well as "passive" negligence but does not apply to City's "sole negligence " or "willful misconduct " within the meaning of Civil Code section 2782.
City agrees to indemnify , defend (with counsel reasonably approved by District) and hold harmless District and its authorized officers , employees , agents and volunteers from any and all claims, actions , losses, damages , and/or liability arising out of the performance of this Agreement by City, and/or its authorized officers , employees , agents , contractors or volunteers , including the acts, errors, or omi sions of City and for any costs or expenses incurred by District on account of any claim except where such indemnification is prohibited by law. This indemnification provision shall apply regardless of the existence or degree of fault of indemnities . The City's indemnification obligation applies to District's "active" as well as "passive" negligence but does not apply to District's "sole negligence " or "willful misconduct" within the meaning of Civil Code section 2782.
In the event District and/or City are found to be comparatively at fault for any claim, action, loss or damage which results from their respective obligations under this Agreement , District and/or City, as appli able, shall indemnify the other to the extent of its comparative fault.
Notwithstanding indemnification for any claim, action, loss, or damage involving a third party, District and City hereby waive any and all rights of subrogation recovery against each other.
Revised 7/15/19 Page 4 of 7
Furthermore , if District or City attempts to seek recovery from the other for Workers ' Compensation benefits paid to an employee , District and City agree that any alleged negligence of the employee shall not be construed against the employer of that employee .
GENERAL TERMS AND CONDITIONS
28. Representation of the District and City. In the performance of the Agreement , both City and District, as well as their agents and employees , shall act in an independent capacity and not as officers, employees , or agents of the other party.
29. Change of Address . City shall notify the District in writing of any change in mailing address within ten (10) business days of the change .
30. Agreement Assignability. Without the prior written consent of the District, the agreement is not assignable by City, either in whole or in part.
31 . Agreement Amendments . City agrees that any alterations , variations , modifications , waivers , or provisions of the Agreement shall be valid only when reduced to writing , duly signed , and attached to the original Agreement and approved by the required persons of both City and District.
32. Correction of Performance Deficiencies. Failure by City or District to comply with any of the provisions, covenants, requirements or conditions of this agreement shall be a material breach of this agreement.
In the event of a non-cured breach, the non-breaching party (whether that party is the City or District) may, at its sole discretion and in addition to immediate termination and any other remedies available at law, in equity, or otherwise specified in this Contract:
A. Afford the breaching party (whether that party is the City or District) thereafter a time period within which to cure the breach, which period shall be established at sole discretion of the non-breaching party; and/or,
B. Terminate this Contract.
33. Attorney Fees and Costs. If any legal action is instituted to enforce any party's rights hereunder , each party shall bear its own costs and attorneys' fees, regardless of who is the prevailing party. This paragraph shall not apply to those costs and attorneys' fees directly arising from a third-party legal action against a party hereto and payable under INDEMNIFICATION paragraphs .
34.Venue and Governing Law. The venue of any action or claim brought by any party to this Agreement will be the Central District Court of San Bernardino County Superior Court. Each party hereby waives any law or rule of the court, which would allow them to request or demand a change of venue . If any action or claim concerning this Agreement is brought by any third-party , the parties hereto agree to use their best efforts to obtain a change of venue to the Central District Court of San Bernardino County Superior Court. This contract shall be governed by the laws of the State of California.
35.Notification . In the event of a problem or potential problem that will impact the level of performance by a Party under this Agreement, the Party shall notify the other Party within one (1) working day, in writing and by telephone .
36.Former County and District Officials. City agrees to provide or has already provided information on former San Bernardino County and District administrative officials (as defined below) who are employed by or represent City. The information provided includes a list of former County and District administrative officials who terminated COUNTY or District employment within the last five years and who are now officers, principals , partners , associates or members of the business. The information also includes the employment with or representation of City. For purposes of this provision, "County administrative official" is defined as a member of the Board of Supervisors or such officer's staff, County Administrative Officer or member of such officer's staff, County or District department or group head, assistant department or group head, or an employee in the Exempt Group, Management Unit, or Safety Management Unit.
37.lnaccuracies or Misrepresentations. If in the course of or the administration of this Agreement District determines that City has made a material misstatement or misrepresentation , or that materially inaccurate Revised 7 /15/19 Page 5 of 7
information has been provided , this Agreement may be immediately terminated . If the Agreement is terminated according to this provision , the District is entitled to pursue any available legal reme ies.
38.Waiver. No delay on the part of either party in exercising any power or right hereunder shall operate as a waiver thereof ; nor shall any single or partial exercise of any power or right preclude any other or further exercise thereof of any other power or right. No waiver by any party of any right hereunder or of any default shall be binding upon such party unless such waiver is in writing and signed by a duly authorized official of such party; and no waiver of any default or failure by such party to exercise any right hereunder shall operate as a waiver of any other or further exercise of such right or of any further default.
39.Severability. If any provisions of this agreement , or portions thereof, or the application thereof to any circumstances shall be held invalid or unenforceable , the remainder of this agreement and the application thereof to other circumstances shall nevertheless be valid.
40.Notices and Reports. Any notices shall be addressed to the respective parties as set forth below:
DISTRICT:
CITY:
Monica Ronchetti
Deputy Fire Marshal/CUPA Manager
Household Hazardous Waste Section
2824 East "W ' Street
San Bernardino, CA 92415-0799
Marissa Pereyda
Community Relations Specialist
9700 Seventh Avenue .
Hesperia , CA 92345
41. Entire Agreement.
A. This agreement is intended by the parties hereto as a final expression of their agreement and understanding with respect to the subject matter hereof and as a complete and exclusive statement of the terms hereof and supersedes any and all prior and contemporaneous agreements and understandings.
B. The signatures of the Parties affixed to this Contract affirm that they are duly authorized to commit and bind their respective institutions to the terms and conditions set forth in this documen1.
42.This agreement may be executed in any number of counterparts , each of which so executed shall be deemed to be an original, and such counterpart shall together constitute one and the same agreement.
The parties shall be entitled to sign and transmit an electronic signature of this agreement (whether by facsimile , PDF or other email transmission} , which signature shall be binding on the party whose name is contained therein . Each party providing an electronic signature agrees to prompt ly execute and deliver to the other party an original signed agreement upon request.
Revised 7 /15/19 Page 6 of 7
IN WITNESS WHEREOF, the Board of Directors has caused this Agreement to be subscribed to by the Secretary thereof , and City has caused this Agreement to be subscribed on its behalf by its duly authorized officers , the day, month and year written.
SAN BERNARDINO COUNTY FIRE PROTECTION
DISTRICT
►
Curt Hagman, Chairman, Board of Directors
Dated:
SIGNED AND CERTIFIED THAT A COPY OF THIS
DOCUMENT HAS BEEN DELIVERED TO THE
CHAIRMAN OF THE BOARD
Lynna Monell, Secretary
By ----------------
Deputy
FOR COUNTY USE ONLY
(Print or type name of corporation, company, contractor, etc.) By ►
----(A.,....u-th-o--,riz_e__,d-s1,-·gn- a-tu-re---s...,.ig-n...,..in- b,..,.lu-e....,in....,k-) --- Name
(Print or type name of person signing contract)
Title
(Print or Type)
Dated:
Address
Approved as to Legal Fom, Reviewed for Contract Compliance Reviewed/Approved by Department ►
Scott Runyan, Supervising Deputy County
Counsel
Date
------------
Revised 7/15/19
►
Date
►
Date ------------- -------------
Standard Contract Page 1 of 7
THE INFORMATION IN THIS BOX IS NOT A PART OF THE CONTRACT AND IS FOR COUNTY USE ONLY San Bernardino County Fire
Protection District
Department Contract Representative Jose Rodriguez
Telephone Number (909) 382-5401
Contractor City of Hesperia
Contractor Representative Marissa Pereyda
Telephone Number (760) 947-1019
Contract Term July 1, 2022 through June 30, 2027
Original Contract Amount $977,738.98
Amendment Amount
Total Contract Amount $977,738.98
Cost Center
IT IS HEREBY AGREED AS FOLLOWS:
HOUSEHOLD HAZARDOUS WASTE COLLECTION AGREEMENT
This Agreement is made and entered into between the San Bernardino County Fire Protection District, hereinafter referred to as “District” and the City of Hesperia hereinafter referred to as the “City.” RECITALS:
WHEREAS, the California Public Resources Code (Section 47000 et seq.) requires cities and counties to prepare a Household Hazardous Waste Element which identifies a program for the safe collection, recycling, treatment and disposal of hazardous wastes which are generated by households in the city or county and which should be separated from the solid waste stream; and, WHEREAS, San Bernardino County and each of the cities in the County have developed Household Hazardous Waste Elements (HHWE) which identify a county-wide cooperative program for the management of Household Hazardous Waste; and,
WHEREAS, the existing Household Hazardous Waste program operated by the District is consistent with the adopted HHWE; and,
Contract Number
SAP Number
Attachment 1
Revised 7/15/19 Page 2 of 7
WHEREAS, the District’s Section of Hazardous Materials, is a section of the District responsible for the safe management of hazardous waste; and,
WHEREAS, the City desires for the protection, health and welfare of the public and its personnel, the removal of hazardous waste from homes so that such materials will pose no danger in the event of fire, the prevention of potential environmental degradation and the conservation of resources through recycling.
NOW, THEREFORE, in consideration of mutual covenants and conditions the parties hereto agree as follows:
WITNESSETH:
RESPONSIBILITIES AND DUTIES OF THE CITY
1. The City agrees to allow the operation of a Household Hazardous Waste Collection Facility (hereinafter referred to as “Facility”) for the District and City at the Hesperia Fire Station, 17443 Lemon Street, Hesperia, California. The District shall staff the Facility when it is in operation. The Facility will be open to County residents for collection of Household Hazardous Waste at least ten (10) hours per month, except during inclement weather. The C ity approves the Facility’s storage area(s) of ignitable and/or reactive waste designated by the District. The City approves the Facility’s traffic control which is directed by authorized staff.
2. The City shall be responsible for maintenance of the Facility, the safety of persons and materials on the Facility property and keeping the Facility secure. It shall not be necessary for the City to require a person to be present at all times on the site of the Facility where the waste will be stored.
3. The City shall notify and obtain approval from the District prior to making any changes in the maintenance and/or operations of the Facility. The City shall notify the District of any changes in the management of the Facility.
4. The City shall publicize to its residents the need to properly reduce, recycle, store, transport and dispose of Household Hazardous Waste and inform its residents of the availability of nearby household hazardous waste collection facilities for safe management of household hazardous waste, in the manner and form recommended by District.
5. The City shall publicize to its residents the maximum quantities of hazardous waste allowed for transportation which are containers no larger than 5 gallons and maximum quantities of 15 gallons or 125 pounds per trip brought to a household hazardous waste collection facility per participant.
6. The City shall publicize to its small businesses that need to dispose of small quantities of business waste to contact the District and make an appointment to use the Very Smal l Quantity Generator (VSQG) program for proper disposal.
7. The City shall publicize to its residents that home generated sharps containers shall only contain needles, lancets and syringes with a needle attached that must be completely spent (used and no liquid remaining, this includes EpiPens). The public may use 2 gallon or smaller heavy-duty plastic household containers as an alternative to plastic bio-hazard sharps containers. The container should be leak-resistant, remain upright during use and have a ti ght fitting, puncture -resistant lid, such as a plastic laundry detergent container. Containers consisting of glass, metal, cardboard or paper will not be accepted.
8. Agreement Compliance. City agrees to comply with all applicable Federal, State and County laws, regulations and policies in carrying out its responsibilities under this Agreement.
Revised 7/15/19 Page 3 of 7
RESPONSIBILITIES AND DUTIES OF THE DISTRICT
9. The District shall continue to operate a comprehensive Household Hazardous Waste Program (Program) for the safe collection, recycling, treatment and disposal of household hazardous waste , including universal waste, Home -generated Sharps (HGS) and pharmaceutical waste excluding controlled substances. The District program shall be based on a Central Processing Facility and a regional network of collection centers sited so as to provide safe, convenient service to the public in a cost -effective manner.
10. The District , acting as the generator of househo ld hazardous waste, shall assume responsibility for maintaining the necessary site permits and responsibility for the on -site management, transportation, recycling and disposal of the materials and waste collected at the Facility site.
11. The District will provide two County employees to operate the Facility every Thursday and Saturday at the agreed upon publicized operations time. Thursdays 9:00am to 1:00 pm and Saturdays from 9:00 am to 2:00 pm; unless the Thursday or Saturday falls on a holiday observed by the County.
12. All personnel provided by the District are employees of the District, and, as such, will be supervised and trained by the District and covered by the District’s Workers’ Compensation Program. District personnel will be trained to meet or exceed Cal OSHA requirements.
13. The operations at the Facility will be directed by, and District personnel shall be trained according to, the District’s “Satellite Facilities Operations Manual”, whic h designates waste to be accepted, defines a categorization scheme for wastes anticipated, and specifies emergency procedures to be followed. This document is referenced in and required by the Permit by Rule authorization to operate which is issued by San Bernardino County Certified Unified Program Agency. If there are any changes to the "Satellite Facilities Operations Manual", the District shall provide special training sessions to District personnel as soon as practicable with respect to said changes.
14. The “Satellite Facilities Operations Manual” shall be consistent with or exceed all state and federal regulations applicable to Household Hazardous Waste facilities and amended as necessary.
15. The District shall provide a secure storage shed. The District w ill also provide approved waste storage containers, meeting the specifications of the Department of Transportation for the disposal of hazardous waste and sufficient absorbent materials for “over packing” the waste containers. At the termination or expiration of this Agreement, all items provided by the District shall belong to the District, unless otherwise agreed upon in writing. The District will provide an Emergency Coordinator to offer support and assistance to the City during Facility operating hours excluding County observed holidays.
16. The District shall either remove the wastes or independently contract with a licensed hazardous waste hauler to remove the accumulated wastes, monthly, and to recycle or dispose of wastes at an approved facility, at no additional cost to the City.
17. The District shall provide an annual report to the City, which shall include the amounts and types of waste collected, participation by jurisdiction, and final disposition of the waste. The report will be provided at no additional cost to the City.
18. The District shall compile and provide to the California Department of Resources Recycling and Recovery (CalRecycle), the Department of Toxic Substances Control, and the Certified Unified Pro gram Agency, the City’s Annual Form 303 Report. The reports will be provided at no additional cost to the City.
19. The District shall provide to the City, flyers/brochures/education material that shall be distributed by the City electronically. Hard copies will also be provided upon request, at no additional cost to the City.
20. The District shall charge any business that disposes of household hazardous waste the actual cost of disposal as indicated in District’s fee ordinance.
21. The District shall provide a n electronic biohazardous waste label to every participant that disposes of home generated sharps. As provided in Paragraph 7, the public may use 2 gallon or smaller heavy-duty plastic household containers such as a plastic laundry detergent container as an alternative to plastic bio-hazard sharps containers. The biohazardous waste label shall be placed on the rigid heavy -duty, puncture-resistant plastic container used to dispose of home generated sharps.
Revised 7/15/19 Page 4 of 7
CONSIDERATION
22. In consideration for the services provided and except as otherwise provided in this Agreement, City shall pay the District the following amount not to exceed $977,738.98:
Fiscal Year Annual Amount Amount per quarter
2022/2023 $182,315.06 $45,578.76
2023/2024 $188,240.29 $47,060.07
2024/2025 $194,828.70 $48,707.17
2025/2026 $202,134.77 $50,533.69
2026/2027 $210,220.16 $52,555.04
23. Payments will be due on July 15, October 15, January 15, and April 15 of each year through the term of the contract.
TERM AND TERMINATION
24.This Agreement shall be effective July 1, 2022 and shall remain in effect through June 30, 2027, but may be renewed for specified periods, unless, otherwise terminated or amended.
25.Notwithstanding the foregoing, either party may terminate this Agreement at any time upon 90 days prior written notice to the other party.
INSURANCE AND INDEMNIFICATION
26. City and District are authorized self-insured public entities for purposes of Professional Liability, General Liability, Automobile Liability and Workers’ Compensation and warrant that through their respective programs of self-insurance, they have adequate coverage or resources to protect against liabilities arising out of the performance of the terms, conditions or obligations of this Agreement.
27. District agrees to indemnify, defend (with counsel reasonably approved by City) and hold harmless City and its authorized officers, employees, agents and volunteers from any and all claims, actions, losses, damages, and/or liability arising out of the performance of this Agreement by District, and/or its authorized officers, employees, agents, contractors or volunteers, including the acts, errors, or omissions of District and for any costs or expenses incurred by City on account of any claim except where such indemnification is prohibited by law. This indemnification provision shall apply regardless of the existence or degree of fault of indemnities. The District’s indemnification obligation applies to City’s “active” as well as “passive” negligence but does not apply to City’s “sole negligence” or “willful misconduct” within the meaning of Civil Code section 2782.
City agrees to indemnify, defend (with counsel reasonably approved by District) and hold harmless District and its authorized officers, employees, agents and volunteers from any and all claims, actions, losses, damages, and/or liability arising out of the performance of this Agreement by City, and/or its authorized officers, employees, agents, contractors or volunteers, including the acts, errors, or omissions of City and for any costs or expenses incurred by District on account of any claim except where such indemnification is prohibited by law. This indemnification provision shall apply regardless of the existence or degree of fault of indemnities. The City’s indemnification obligation applies to District’s “active” as well
Revised 7/15/19 Page 5 of 7
as “passive” negligence but does not apply to District’s “sole negligence” or “willful misconduct” within the meaning of Civil Code section 2782.
In the event District and/or City are found to be comparatively at fault for any claim, action, loss or damage which results from their respective obligations under this Agreement, District and/or City, as applicable, shall indemnify the other to the extent of its comparative fault.
Notwithstanding indemnification for any claim, action, loss, or damage involving a third party, District and City hereby waive any and all rights of subrogation recovery against each other.
Furthermore, if District or City attempts to seek recovery from the other for Workers’ Compensation benefits paid to an employee, District and City agree that any alleged negligence of the employee shall not be construed against the employer of that employee.
GENERAL TERMS AND CONDITIONS
28. Representation of the District and City. In the performance of the Agreement, both City and District, as well as their agents and employees, shall act in an independent capacity and not as officers, employees, or agents of the other party.
29. Change of Address. City shall notify the District in writing of any change in mailing address within ten (10) business days of the change.
30. Agreement Assignability. Without the prior written consent of the District, the agreement is not assignable by City, either in whole or in part.
31. Agreement A mendments. City agrees that any alterations, variations, modifications, waivers, or provisions of the Agreement shall be valid only when reduced to writing, duly signed, and attached to the original Agreement and approved by the required persons of both City and District.
32. Correction of Performance Deficiencies . Failure by City or District to comply with any of the provisions, covenants, requirements or conditions of this agreement shall be a material breach of this agreement.
In the event of a non-cured breach, the non-breaching party (whether that party is the City or District) may, at its sole discretion and in addition to immediate termination and any other remedies available at law, in equity, or otherwise specified in this Contract:
A. Afford the breaching party (whether that party is the City or District) thereafter a time period within which to cure the breach, which period shall be established at sole discretion of the non-breaching party; and/or,
B. Terminate this Contract.
33. Attorney Fees and Costs. If any legal action is instituted to enforce any party’s rights hereunder, each party shall bear its own costs and attorneys’ fees, regardless of who is the prevailing party. This paragraph shall not apply to those costs and attorneys’ fees directly arising from a third-party legal action against a party hereto and payable under INDEMNIFICATION paragraphs.
34.Venue and Governing Law. The venue of any action or claim brought by any party to this Agreement will be the Central District Court of San B ernardino County Superior Court. Each party hereby waives any law or rule of the court, which would allow them to request or demand a change of venue. If any action or claim concerning this Agreement is brought by any third -party, the parties hereto agre e to use their best efforts to obtain a change of venue to the Central District Court of San Bernardino County Superior Court. This contract shall be governed by the laws of the State of California.
35.Notification. In the event of a problem or potential problem that will impact the level of performance by a Party under this Agreement, the Party shall notify the other Party within one (1) working day, in writing and by telephone.
Revised 7/15/19 Page 6 of 7
36.Former County and District Official s. City agrees to provide or has already provided information on former San Bernardino County and District administrative officials (as defined below) who are employed by or represent City. The information provided includes a list of former County and District administrative officials who terminated COUNTY or District employment within the last five years and who are now officers, principals, partners, associates or members of the business. The information also includes the employment with or representation of City. For purposes of this provision, “County administrative official” is defined as a member of the Board of Supervisors or such officer’s staff, County Administrative Officer or member of such officer’s staff, County or District department or group head, assistant department or group head, or an employee in the Exempt Group, Management Unit, or Safety Management Unit.
37.Inaccuracies or Misrepresentations. If in the course of or the administration of this Agreement District determines that City has made a material misstatement or misrepresentation, or that materially inaccurate information has been provided , this Agreement may be immediately terminated. If the Agreement is terminated according to this provision, the District is entitled to pursue any available legal remedies.
38.Waiver. No delay on the part of either party in exercising any power or right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any power or right preclude any other or further exercise thereof of any other power or right. No waiver by any party of any right hereunder or of any default shall be binding upon such party unless such waiver is in writing and signed by a duly authorized official of such party; and no waiver of any default or failure by such party to exercise any right hereunder shall operate as a waiver of any other or further exercise of such right or of any further default.
39.Severability. If any provisi ons of this agreement, or portions thereof, or the application thereof to any circumstances shall be held invalid or unenforceable, the remainder of this agreement and the application thereof to other circumstances shall nevertheless be valid.
40.Notices and Reports. Any notices shall be addressed to the respective parties as set forth below:
DISTRICT:
Monica Ronchetti
Deputy Fire Marshal/CUPA Manager
Household Hazardous Waste Section
2824 East “W” Street
San Bernardino, CA 92415-0799
CITY: Marissa Pereyda
Community Relations Specialist
9700 Seventh Avenue.
Hesperia, CA 92345
41.Entire Agreement.
A. This agreement is int ended by the parties hereto as a final exp ression of their agreement and understanding with respect to the subject matter hereof and as a complete and exclusive statement of the terms hereof and supersedes any and all prior and contemporaneous agreements and understandings.
B. The signatures of the Parties affixed to this Contract affirm that they are duly authorized to commit and bind their respective institutions to the terms and conditions set forth in this document.
42.This agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterpart shall together constitute one and the same agreement.
The parties shall be entitled to sign and transmit an electronic signature of this agreement (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Each party providing an electronic signature agrees to promptly execute and deliver to the other party an original signed agreement upon request.
Revised 7/15/19 Page 7 of 7
IN WITNESS WHEREOF, the Board of Directors has caused this Agreement to be subscribed to by the Secretary thereof, and City has caused this Agreement to be subscribed on its behalf by its duly authorized officers, the day, month and year written.
FOR COUNTY USE ONLY
Approved as to Legal Form Reviewed for Contract Compliance Reviewed/Approved by Department
Scott Runyan, Supervising Deputy County
Counsel
Date Date Date
SAN BERNARDINO COUNTY FIRE PROTECTION
DISTRICT
(Print or type name of corporation, company, contractor, etc.)
By
Curt Hagman, Chairman, Board of Directors (Authorized signature - sign in blue ink) Dated:
Name
SIGNED AND CERTIFIED THAT A COPY OF THIS (Print or type name of person signing contract)
DOCUMENT HAS BEEN DELIVERED TO THE
CHAIRMAN OF THE BOARD Title
Lynna Monell, Secretary (Print or Type) By Dated:
Deputy
Address
THIS PAGE LEFT INTENTIONALLY BLANK
City of Hesperia
STAFF REPORT
DATE: June 7, 2022
TO: Chair and Board Members, Hesperia Water District
FROM: Nils Bentsen, City Manager
BY: Jeremy McDonald, Director of Public Works
Robert Worby, Fleet/Warehouse Supervisor
SUBJECT: Contract with Inland Water Works
RECOMMENDED ACTION
It is recommended that the Board of Directors of the Hesperia Water District authorize the City Manager to enter into a one (1) year agreement with Inland Water Works in an amount not -to- exceed $185,000, for the purchase of Mueller water products.
BACKGROUND
The Hesperia Water District established a formal request for bid (RFB) under Warehouse Commodity-Mueller Parts. On May 5, 2021, RFB 202 1-22-018 solicited bids from six vendors and a public bid opening was held on Ma y 19, 202 2. Two (2) material service providers responded: Inland Water Works and Core & Main. Inland Water Works has been deemed to be the lowest responsible/responsive bidder. These products are needed for maintenance and repair of the water system infrastructure.
ISSUES/ANALYSIS
The intention of this program is to obtain optimum water material pricing by using the formal bidding process and awarding an annual purchase agreement to the lowest responsible/responsive material service provider.
FISCAL IMPACT
Sufficient funding will be included in the Fiscal Year 2022-23 Proposed Operating Budget.
ALTERNATIVE(S)
1. Provide alternative direction to staff.
ATTACHMENT(S)
1. Bid Results.
Attachment 1
THIS PAGE LEFT INTENTIONALLY BLANK
City of Hesperia
STAFF REPORT
DATE: June 7, 2022
TO: Mayor and City Council Members
Chair and Board Members, Hesperia Water District
FROM: Nils Bentsen, City Manager
BY: Jeremy McDonald, Director of Public Works
Robert Worby, Fleet/Warehouse Supervisor
SUBJECT: Fleet Maintenance Services for Fiscal Year 2022-23
RECOMMENDED ACTION
It is re commended that the City Council and Board of Directors of the Hesperia Water District authorize the City Manager to enter into a one (1) year agreement with G & M Automotive Center, Inc. in a not-to-exceed amount of $250,000, for fleet maintenance services.
BACKGROUND
Preventative and corrective maintenance is required for the City of Hesperia’s and Hesperia Water Districts’ seventy-six (76) light-duty vehicles, and (35) super -duty and heavier on -road vehicles and equipment.
ISSUES/ANALYSIS
On May 5, 2022, Public Works requested bids from local vendors located within the City that could provide maintenance services. To include as many potential bidders as possible, the vehicle fleet’s three categories were solicited on three separate requests for bids (RFB’s) and public bid opening was held on May 19, 2022 for RFB’s 2021-22-014, 2021-22-015, and 2021-22-016. G & M Automotive Center, Inc. has been deemed the lowest responsible, responsive bidder.
FISCAL IMPACT
Sufficient funding will be included in the Fiscal Year 2022-23 Proposed Operating Budget.
ALTERNATIVE(S)
1. Provide alternative direction to staff.
ATTACHMENT(S)
1. RFB 2021-22-014 Bid Results
2. RFB 2021-22-015 Bid Results
3. RFB 2021-22-016 Bid Results
Attachment 1
Attachment 2
Labor Type
Standard Labor
P.M. Labor
Description
Materials/Parts
Bid Comparison Completed By: Robert Worby - Fleet/Warehouse Supervisor Date: 5/19/2022
Bid Comparison
RFB 2021-22-016 Fleet Vehicle Maintenance Services - On-Road Heavy Vehicles and Equipment On-Road Heavy Vehicles and Equipment
G & M Automotive Soulhem Califomla Fleet Servlctt Scotty's Automotive Service Hesperia, CA Heeperla, CA Hesperia, CA
Est Labor Hours Labor Rate per Hour Extended Amount Labor Rate per Hour Extended Amount Labor Rate per Hour Extended Amount 120 $120.00 $14,400.00 $130.00 $15,600.00 $0.00 $0.00
120 $120.00 $14,400.00 $130.00 $15,600.00 $0.00 $0.00
Subtotal $28,800.00 Subtotal $31,200.00 Subtotal $0.00
Submitted Bid $14,400.00 Submitted Bid $31,200.00 Submitted Bid $0.00 Difference $14,400.00 Difference $0.00 Difference $0.00 Estimated Materials/ Parts Materials/Parts Markup % Extended Amount Materials/Parts Markup % Extended Amount Materials/Parts Markup % Extended Amount $4,000.00 35% $5,400.00 25% $5,000.00 0% $0.00
Subtotal $5,400.00 Subtotal $5,000.00 Subtotal $0.00
Submitted Bid $6,200.00 Submitted Bid $5,000.00 Submitted Bid $0.00 Difference ($800.00) Difference $0.00 Difference $0.00
Total Bid $34,200.00 TOIIIBld $38,200.00 Total Bid $0.00 Winning Bidder Did Not Bid
Attachment 3
City of Hesperia
STAFF REPORT
DATE: June 7, 2022
TO: Mayor and Council Members
Chair and Board Members, Hesperia Water District
FROM: Nils Bentsen, City Manager
BY: Rachel Molina, Assistant City Manager
David Burkett, Project Construction Manager
SUBJECT: Award Professional Services Agreements for On-Call Engineering Services
RECOMMENDED ACTION
It is recommended that the City Council and Board of Directors of the Hesperia Water District approve the award of a Professional Services Agreement (PSA) to three professional engineering design firms to provide On -Call Engineering Services for an initial term of three (3) years and each contract in an amount not to exceed $350,000 as follows:
Michael Baker International $350,000
David Evans and Associates, Inc. $350,000
IMEG Corporation $350,000
BACKGROUND
The City’s Capital Improvement Program (CIP) requires the construction of p rojects, including without limitation, street improvement pr ojects, traffic signal projects, water and wastewater projects, drainage projects, etc. that require engineering studies, preparation of environmental documents, development of master plans, design surveying, geotechnical investigations, preparation of plans and specifications, and construction engineering services.
Soliciting for professional contract services is a lengthy process of roughly 3 to 4 months. Rather than preparing a Request for Proposal (RFP) for each individual project and going through the RFP review process each time, having consultants on -call when services are nee ded is more efficient and cost effective . Further, this method shortens the du ration needed prior to start of design or construction of a project. There are circumstances when services are needed promptly and cannot wait 3 to 4 months for the RFP solicitation process. The on-call process has been utilized by the City in the past and has been proven to provide timelier project implementation as well as reduce contract administration time and costs. Almost every project identified in the CIP will require professional engineering services throughout the duration of the various phases of the project from preliminary engineering through construction completion.
ISSUES/ANALYSIS
The Public Contract Code requires contracts for professional engineering services to be awarded based on qualifications of a firm. Staff solicited professional on-call engineering services by issuing a Request for Qualifications (RFQ ) through a formal process utilizing Public | Purchase,
Staff Report to the Mayor and Council/Board Members
Award Professional Services Agreements for On-Call Engineering Services June 7, 2022
the City’s online site . A total of eleven Proposals were received and reviewed by a selection committee. The Proposals were evaluated based on certain criteria such as past experience, technical expertise and approach to the scope of work . The firms were ranked by the selection committee as follows:
Firm Name Average Score
Michael Baker International 96
David Evans & Associates 95
IMEG Corporation 94
Psomas 93
Angenious Engineering 92
Onward Engineering 92
Dokken Engineering 91
Huitt-Zollars 91
Engineering Resources 88
Merrell Johnson 87
Valued Engineering 82
Typical engineering design costs on a project range from 5% to 1 0% of the estimated project construction cost. Provision of geotechnical services and environmental services would typically add another 6% to the total costs. Smaller projects trend towards the higher end of the scale.
For example, the City’s annual roadway improvement project typically costs between $1.5 million and $2.0 million. The engineering costs for such a typical project would probably r ange from $240,000 to $320,000. Staff estimates that the professional engineering costs for each individual project over the next three years will be a maximum of $350,000.
Therefore, staff recommends agreement amounts of $350,000 each for Michael Baker International, David Evans & Associates, and IMEG Corporation for the initial three-year period.
Awarding the three contracts will not require the City or District to utilize the entire contract amount, actual expenditures will be based on cost proposals submitted by each consultant for each individual project for a lump sum, not-to-exceed amount.
FISCAL IMPACT
Funding for various projects is budgeted each year in the Adopted CIP Budget. Projects budgeted each fiscal year will include adequate appropriation authority for the engineering services needed on a project.
ALTERNATIVE(S)
1. Do not award the PSAs and direct staff to utilize the RFP process for each individual project.
ATTACHMENT(S)
None
City of Hesperia
STAFF REPORT
DATE: June 7, 2022
TO: Mayor and Council Members
Chair and Board Members, Hesperia Water District
FROM: Nils Bentsen, City Manager
BY: Rachel Molina, Assistant City Manager
David Burkett, Project Construction Manager
SUBJECT: Reject all Bids for I-15 Corridor Utility Improvements – Phase II
RECOMMENDED ACTION
It is rec ommended that the City Council and Board of Directors of the Hesperia Water District reject all bids submitted for the I-15 Corridor Utility Improvements – Phase II project.
BACKGROUND
In 2014, the City annexed the I-15 freeway corridor south from Highway 395 to the summit at Oak Hills. As part of this annexation, the City is required to construct the water and wastewater infrastructure to serve the corridor. The improvements under Phase I included construction of new water and wastewater pipe lines in Mariposa Road and Caliente Road from approximately the I -15 & 395 junction to the Ranchero Road interchange. Phase II of the project includes construction of a new wastewater lift station, proposed near the Union Pacific Railroad tracks off Caliente Road, and construction of a new water pump station. The annexation agreement included a requirement that all improvements were to be completed in three years; however, budget constraints have prevented this work from proceeding on the timeline originally proposed.
ISSUES/ANALYSIS
This project was advertised for bids beginning on March 29, 2022. More than 4,000 contractors were notified about the project while over 160 contractors accessed the bid documents through Public Purchase, the City’s online bidding platform . Bids were received, opened, and publicly read on May 5, 2022.
The City received the following two bids:
R.I.C. Construction Company, Inc. Hesperia, CA $9,803,185 Christensen Bros. Gen. Engineering Apple Valley, CA 11,731,885
After review of the submitted bids, staff has determined that the total costs for the project have substantially exceeded the original estimates. Therefore, staff is recommending that the City Council and Board of Directors reject the submitted bids. Subsequently, staff will review the scope of work, apply value engineering, and determine if site improvements and mechanical equipment in the pump station and lift station can be reduced to the minimum requirements needed to provide sewer and water service to the I-15 corridor and re-advertise the project for bids.
Staff Report to the Mayor and Council Members
Chair and Board Members, Hesperia Water District
Reject all Bids for I-15 Corridor Utility Improvements – Phase II June 7, 2022
With this thorough engineering review it is expected that new bids for the project will be considerably lower and construction of the project may proceed.
FISCAL IMPACT
There is no fiscal impact upon rejection of all submitted bids. On June 15, 2021 the City Council adopted the Fiscal Year 2021-22 Capital Improvement Program (CIP) Budget that included the I- 15 Corridor Utility Improvements – Phase II project under Construction Order No’s. 8077 (water) and 9021 (sewer). The current adopted CIP budget for this project is $4,600,000.
ALTERNATIVE(S)
1. Provide alternative direction to staff.
ATTACHMENT(S)
None
City of
Hesperia
S T A F F R E P O R T
RECOMMENDED ACTION
It is recommended that the City Council , the Board of Directors of the Hesperia Housing Authority, and the Board of Directors of the Hesperia Water District, adopt Joint Resolution No. 2022-45, HHA 2022-04, and HWD 2022-09, modifying the Non-Represented Employees’ Compensation and Benefit Plan.
BACKGROUND
On June 15, 2021 , the City Council adopted the following Joint Resolution No 2021-26, Resolution HHA 2021-04, and Resolution HWD 20 22-11, which established the Non- Represented Employees’ Compensation and Benefit Plan (Non -Rep Plan). The Non-Rep Plan establishes salaries, benefits and other related po licies for employees not represented by an employee labor relations organization and may be modified in its entirety or by section.
ISSUES/ANALYSIS
The following amendments are proposed to the Non -Represented Employees’ Compensation and Benefit Plan.
Section 6: Salary
In June 2022, each non-represented full-time and part-time employee who is actively employed with the City of Hesperia on June 17, 2022 , shall receive a one-time employee retention payment as follows:
$1,750 Part-Time Classification
$3,500 General
$4,000 Professional/Supervisory
$4,500 Management and above
This one-time payment will be included in the last paycheck received in the month of June 2022 and will not be reported to the California Public Employees’ Retirement System as sp ecial compensation.
DATE: June 7, 2022
TO: Mayor and Council Members
Chair and Board Members Hesperia Housing Authority
Chair and Board Members, Hesperia Water District
FROM: Nils Bentsen, City Manager
BY: Rachel Molina, Assistant City Manager
Casey Brooksher, Director of Administrative Services
Rita Perez, Deputy HR/RM Director
SUBJECT: Non-Represented Employees’ Compensation and Benefit Plan
Staff Report to the Mayor and City Council/Board Members Non-Represented Employees’ Compensation and Benefit Plan June 7, 2022
Section 9: Health Insurance
Effective July 1, 2022, for the August 2022 insurance premiums, the City shall pay up to $1,450 per month, with no difference received as cash; the employee shall be responsible for paying the difference, or the amount greater than $1,450 through payroll deduction.
Effective July 1, 2023, for the August 2023 insurance premiums, the City shall pay up to $1, 550 per month, with no difference received as cash; the employee shall be responsible for paying the difference, or the amount greater than $1,550 through payroll deduction.
Section 19: Vacation
On June 30, if an employee exceeds the maximum accrual allowable, the vacation hours in excess of 499 will be paid at the employee’s current hourly rate: Employees will have a maximum of 399 hours carry -over of vacation hours per fiscal year. The vacation buyback program shall be subject to a pre -designation provision whereby employees have the ability to designate annually in October up to 240 hours of leave for the next calendar year.
During the month of October, an employee may elect to convert up to two hundred and forty (240) hours of vacation into cash payment(s) at the base rate of pay in effect at the time of the cash-out, as long as the employee has eighty (80) hours of vacation remaining on the books at the time of the pre -designation. To cash -out vacation, an employee must make an irrevocable election (i.e., pre-designation) during the month of October, specifying the total number of hours to be c ashed-out from next year’s vacation leave accrual. During the calendar year following the pre -designation, an employee may choose increments of vacation to cash -out in March, May and August; the minimum increment for vacation cash-out is twenty (20) hours. If no cash- out occurs during the year and/or any remaining balance of the pre -designated amount will be cashed out in November. If the employee does not have the vacation hours available to satisfy the amount pre -designated for cash -out, the employee w ill be precluded from making an irrevocable election and cashing out for the following calendar year.
Other:
Minor language change to observance of Columbus Day,
FISCAL IMPACT
The monetary implications of the Non-Represented Employees’ Compensation and Benefit Plan is reflected in the FY 202 2-23 Budget in both the Revised FY 202 1-22 and Proposed FY 2022-22. The FY 202 2-23 Budget will be presented to the City Council for adoption on June 7, 2022.
ALTERNATIVE(S)
Provide alternative direction to staff.
ATTACHMENT(S)
1. Joint Resolution No. 2022-45, HHA 2022-04, HWD 2022-09
2. Non-Represented Employees’ Compensation and Benefit Plan
JOINT RESOLUTION NO. 2022-45
RESOLUTION NO. HHA 2022-04
RESOLUTION NO. HWD 2022-09
A JOINT RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HESPERIA,
THE BOARD OF DIRECTORS OF THE HESPERIA HOUSING AUTHORITY,
AND THE BOARD OF DIRECTORS OF THE HESPERIA WATER DISTRICT OF CALIFORNIA, MODIFYING THE NON -REPRESENTED EMPLOYEES’
COMPENSATION AND BENEFIT PLAN
WHEREAS, the City Council of the City of Hesperia establishes salaries, benefits and other related policies for employees not represented by an employee labor relations organization; and
WHEREAS, the City Council of the City of Hesperia recognizes that it competes in a marketplace to obtain qualified personnel to perform and provide municipal services, and that compensation and conditions of employment must be s ufficiently attractive to recruit and retain qualified employees; and
WHEREAS, Joint Resolution No 20 21-26, Resolution HHA 2021-04, and Resolution HWD 2021-11, Exhibit A established a Non -Represented Compensation and Benefits Plan which sections can be modified individually or in whole; and
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
HESPERIA, BOARD OF DIRECTORS OF THE HESPERIA HOUSING AUTHORITY AND BOARD OF DIRECTORS OF THE HESPERIA WATER DISTRICT AS FOLLOWS:
Section 1. That the recitals above are true and correct.
Section 2. That the City Council has reviewed and approves of the modified provisions included in Exhibit A. - Non-Represented Compensation and Benefit Plan.
Section 3. That this resolution shall remain in full force an d effect until modified or terminated by action of the City Council.
Section 4. That Exhibit A - Non-Represented Compensation and Benefit Plan sections may be modified individually or in whole by action of the City Council.
Section 5. That the City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original resolutions.
ADOPTED AND APPROVED this 7th day of June 2022.
______________________________
Brigit Bennington, Mayor/Chair
ATTEST:
____________________________
Melinda Sayre, City Clerk
EXHI
BIT A
Non-Represented Employees’
Com
pensation and Benefits Plan
Attachment 2
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
Page - 2 -
TABLE OF CONTENTS
SECTION NO. SECTION TITLE PAGE NO.
Section 1 Establishment ................................ ................................ .......................... 3 Section 2 Provision of Law ................................ ................................ ...................... 3 Section 3 Management Structure ................................ ................................ ............ 3 Section 4 Non-Represented Classifications ................................ ............................ 3 Section 5 Confidential Employees ................................ ................................ ........... 4 Section 6 Salary ................................ ................................ ................................ ...... 5 Section 7 CalPERS Retirement Plan ................................ ................................ ....... 5 Section 8 401 (a) Program ................................ ................................ ...................... 6 Section 9 Health Insurance ................................ ................................ ..................... 6 Section 10 Dental Insurance ................................ ................................ ..................... 8 Section 11 Optical Insurance ................................ ................................ .................... 8 Section 12 Short-Term/Long-Term Disability Insurance ................................ ............ 8 Section 13 Life Insurance ................................ ................................ .......................... 8 Section 14 Employee Assistance Program ................................ ................................ 8 Section 15 Benefit Amendment Clause ................................ ................................ ..... 8 Section 16 Work Schedule ................................ ................................ ........................ 8 Section 17 Holidays ................................ ................................ ................................ .. 9 Section 18 Three-Tiered Management Program ................................ ....................... 10 Section 19 Vacation ................................ ................................ ................................ .. 11 Section 20 Sick Leave ................................ ................................ ............................... 11 Section 21 Bereavement ................................ ................................ .......................... 13 Section 22 Workers’ Compensation ................................ ................................ ......... 13 Section 23 Jury Duty ................................ ................................ ................................ 13 Section 24 Leave Without Pay ................................ ................................ .................. 13 Section 25 Education Reimbursement/Certification Incentive Pay ............................ 14 Section 26 Bilingual Pay ................................ ................................ ........................... 14 Section 27 Cell Phone Allowance ................................ ................................ ............. 14 Section 28 Automobile Allowance ................................ ................................ ............. 15 Section 29 Uniforms and Boot Reimbursement ................................ ......................... 15 Section 30 Overtime Pay ................................ ................................ .......................... 15 Section 31 Compensatory Time Flexibility ................................ ................................ 16 Section 32 Out of Classification and Acting Assignment Pay ................................ .... 16 Section 33 Stand-by Duty ................................ ................................ ......................... 17 Section 34 Promotions and Step Placement ................................ ............................. 17 Section 35 Outside Employment ................................ ................................ .............. 17 Section 36 Smoking ................................ ................................ ................................ . 18 Section 37 Employer/Employee Relations ................................ ................................ . 18 Section 38 Disciplinary Appeals ................................ ................................ ................ 18 Section 39 Layoffs……………………………………………………………………........ 21
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
Page - 3 -
SECTION 1: Establishment
The Non–Represented Employees’ Compensation and Benefit Plan was modified in whole in Resolution No 2022-45, Resolution HHA 2022- 04, and Re solution HWD 2022-09. The following sections shall remain in full force and effect until modified or terminated by action of the City Council and may be modified individually or in whole by action of the City Council.
SECTION 2: Provisions of Law
It is understood that this N on-Represented Employees’ Compensation and Benefit Plan is subject to all current and future applicable federal and state laws, federal and state regulations. If any section or provision of the resolution is in conflict or inconsist ent with such above applicable laws, rules and regulations, or is otherwise held to be invalid or unenforceable by any competent jurisdiction, such section or provision shall be suspended and superseded by such applicable law or regulations, and the remainder of this resolution shall not be affected thereby.
SECTION 3: Management Structure
All employees work for the City Manager; however they have supervisors assigned to them based upon the organizational structure included in the annual budget and as determined by the City Manager.
SECTION 4: Non-Represented Classifications
The non-represented job classifications include all job classifications and employees not represented by a recognized employee organization as approved by the Hesperia City Council.
The non-exclusive listing of classifications that are non -represented includes the City Council as Elected Officials, the City Manager, full- time, part -time, temporary employees and any other employees to include the following full-time classifications:
GENERAL MANAGEMENT
Accountant Animal Services Manager
Accounting Technician Budget/Finance Manager
Administrative Aide Building Official
Administrative Secretary Building & Safety Manager
Animal Services Coordinator Code Compliance Manager
Budget/Finance Specialist Community Relations and Media Coordinator Construction Inspector Economic Development Manager
Deputy City Clerk Geographical Information Systems Manager Executive Secretary Human Resources Manager
Environmental Compliance Inspector Information Systems Manager Facility Electrician Information Systems Specialist
Geographical Information Systems Technician Principal Planner Information Systems Technician Project Construction Manager Maintenance Crew Supervisor (before 6/30/2020) Public Works Superintendent Office Assistant Public Works Supervisor (after 7/01/2020) Payroll Analyst Purchasing Supervisor
Personnel Technician Risk Manager
Purchasing Analyst Senior Accountant
Senior Code Enforcement Officer Senior Engineer
Senior Community Development Technician Senior Development Specialist Senior Engineering Technician Senior Financial Analyst
Senior Office Assistant Senior Human Resources Analyst
Senior Office Specialist Senior Management Analyst
Senior Planner
Senior Plans Examiner
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
Page - 4 -
SECTION 4: Non-Represented Classifications (Continued)
PROFESSIONAL/SUPERVISORY SENIOR MANAGEMENT
Administrative Analyst City Engineer
Animal Control Supervisor Deputy Community Development Director Animal Services Specialist Deputy Development Services Director Animal Services Supervisor Deputy Director of Development Services/Community Development Assistant City Clerk Deputy Director of Economic Development Assistant Engineer Deputy Finance Director
Assistant Planner Deputy Human Resources/Risk Management Director Associate Planner Economic Development Director
Building and Safety Supervisor
Building Inspection Supervisor
Code Enforcement Supervisor
Community Development Coordinator
Community Development Supervisor AT-WILL SENIOR MANAGEMENT Construction Inspection Supervisor Assistant City Manager-Management Services (Unclassified/At- Will)
Community Relations Specialist Assistant City Manager (Unclassified/At-Will) Customer Service Supervisor Assistant to the City Manager (Unclassified/At-Will) Emergency Services Coordinator City Clerk (Unclassified/At-Will) Environmental Programs Coordinator Deputy City Manager (Unclassified/At-Will) Facilities Supervisor Director of Administrative Services (Unclassified/At-Will) Field Services Supervisor Director of Development Services (Unclassified/At-Will) Financial Analyst Director of Finance (Unclassified/At-Will) Fleet/Warehouse Supervisor Director of Government Services/City Clerk (Unclassified/At-Will) Human Resource Analyst Director of Public Works (Unclassified/At-Will) Human Resources Specialist Public Works Manager
Maintenance Crew Supervisor (after 7/01/2020)
Management Analyst
Plans Examiner
Public Works Supervisor/Water (before 11/01/2020)
Secretary to the City Manager & City Council
Senior Economic Development Specialist
Shelter Supervisor
SECTION 5: Confidential Employees
Confidential employees are designated as such when an employee, in the course of his or her duties, has access to information relating to the City’s administration of employer -employee relations.
Employees designated as confidential employees may not represent any employee organization which represents other City employees concer ning the wages, hours or other terms and conditions of employment of such other employees. The employees designated as confidential employees are as follows:
Budget/Finance Manager
Executive Secretary
Human Resources Analyst
Human Resources Manager
Human Resources Specialist
Personnel Technician
Secretary to the City Manager/City Council
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
Page - 5 -
SECTION 6: Salary
1 Annually, a Cost of Living Adjustment (COLA) will be reviewed by management and presented to the City Council. The COLA will be based on the annualized Consumer Price Index (CPI) – All Urban Consumers (Area: Riverside-San Bernardino – Ontario).
2 The salary ranges will be listed in the City’s Combined Compensation Schedule. 3 Bonus Program for employees on Step 11 based on merit on their anniversary da te is established.
See ORG-42.
a. This program was frozen for Fiscal Year 2020-21.
4 M erit step increases were frozen for Fiscal Year 2020-21. 5 Each non- represented full-time and part -time employee who is actively employed with the City of Hesperia on June 24, 2021, shall receive a lump sum bonus payment equal to 3% o f the respective employee’s annual base salary in effect as of June 4, 2021. This amount shall not increase the employee’s base pay rate but is a one -time lump sum bonus only. This one- time payment will b e included in the last paycheck received in the month of June 2021 and will not be reported to CalPERS as special compensation.
6 Each non -represented full-time and part -time employee who is actively employed with the City of Hesperia on June 17, 2022, shall receive a one-time retention payment as follows:
• $1,750 – Part-Time Classification
• $3,500 – General
• $4,000 – Professional/Supervisory
• $4,500 - Management and above
This one-time payment will be included in the last paycheck received in the month of June 2022 and will not be reported to CalPERS as special compensation.
SECTION 7: CalPERS Retirement Plan
The City has amended its contract with the Board of Administration of CalPERS to provide the 2.7%@55 full retirement formula, which increased the employee’s rate of contribution to 8% of reportable earnings.
The City has elected and continues to elect to be subject to the following optional retirement provisions:
a. Section 20042 (One-Year Final Compensation).
b. Section 20903 (Two Years Additional Service Credit).
c. Section 21574 (Fourth Level of 1959 Survivor Benefits. The City funds the Employer and Employee contribution of the Survivor Benefits. The Survivor “Employee Contribution” is not credited to the member’s account and is not refundable.
d. Section 21024 (Military Service Credit as Public Service).
Effective the first full pay period after July 1, 2012, the City’s contribution towards the local miscellaneous member’s contribution will be zero percent of reportable compensation, and each local miscellaneous member’s contribution shall be 8% of the individual member’s reportable earnings.
Employees hired by the City on or after January 1, 2013, who qualify as “new members” , as that term is defined in the Public Employee Pension Reform Act (AB 340) , shall be subject to the Act including but not limited to:
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
Page - 6 -
a. 2% at 62 retirement formula
b. Pension benefit is based on the highest annual final compensation during a consecutive 36 month period.
c. CalPERS contribution of 50% of the CalPERS “normal cost” as that term is defined in the Act.
In addition to paying the full CalPERS member contribution, each employee covered by the CalPERS
2.7% @ 55 full retirement formula shall, effective the first full pay period after July 1, 2015, pay one percent of reportable earnings by payroll deduction as cost sharing of the City’s normal costs pursuant to Government Code sections 7522.30 (e) and 20516 (f).
SECTION 8: 401 (a) Program
The City will provide to all Non -Represented employees a 401 (a) program with contribut ions every pay period as follows:
General
• One percent of base salary
Professional/Supervisory
• Two percent of base salary
Management
• Three percent of base salary
Senior Management
• Four percent of base salary
For plan rules and details, refer to the plan documents available in Human Resources.
SECTION 9: Health Insurance
All employees must enroll in an available City health insurance plan unless they opt out with proof of alternate group coverage.
1. Health Insurance Provider:
The City will make availab le a comparable health insurance plan(s) for all full- time regular employees and elected officials.
2. City Contributions:
The City contribution for full -time regular employees and elected officials are exclusively for the premiums of health, dental and optical only and includes the minimum required employer monthly contribution amount as designated by the Health Insurance Provider with the remaining monthly amount provided through the City’s Cafeteria Plan.
a. Full-time Regular Employees and Elected Officials Contributions:
• Effective July 1, 2023 , for the August 2023 insurance premiums, the City shall pay up to $1,550 per month; the employee shall be responsible for paying the difference, or the amount greater than $1,550 through payroll deduction.
• Effective July 1, 2022 , for the August 2022 insurance premiums, the City shall pay up to $1,450 per month; the employee shall be responsible for paying the difference, or the amount greater than $1,450 through payroll deduction.
• Effective July 1, 2021, for the August 2021 insurance premiums, the City shall pay up to $1,324 per month; the employee shall be responsible for paying the difference, or the amount greater than $1,324 through payroll deduction.
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
Page - 7 -
• Effective July 1, 2020, for the August 2020 insurance premium s, the City shall pay up to $1,224 per month; the employee shall be responsible for paying the difference, or the amount greater than $1,224, through payroll deduction.
• Cash Back Provision: Should the employee/elected official select plans that total premi um cost less than the City Contribution:
Hired before January 1, 2013, and receive the Cash Back Provision as of February 28, 2019, the difference up to $665 per month will be paid out in cash. The City’s payment above $665 will be paid for insurance costs only, with no difference available as cash.
Hired before January 1, 2013 and select a change to receive the Cash Back Provision on or after March 1, 2019, the difference up to $300 per month will be paid out in cash. The City’s payment above $300 will be paid for insurance costs only, with no difference available as cash.
Effective March 2019 for April premiums, employees hired on or after January 1, 2013, the difference up to $300 per month will be paid out in cash. The City’s payment above $300 will be paid for insurance costs only, with no difference available as cash.
All cash payments shall be subject to taxation.
b. Opt-out of City Health Coverage Contribution:
Full-time regular employees and elected officials who opt -out of the City’s health insurance with proof of alternate group coverage:
• H ired before January 1, 2013 and opt -out as of February 28, 2019 are eligible to receive the difference less their dental and vision plan selections up to $665. • Hired before January 1, 2013 and select a change to opt -out on or after March 1, 2019, are eligible to receive the difference less their dental and vision plan selections up to $300.
• Hired after January 1, 2013 are eligible to receive the difference less their dental and vision plan selections up to $300.
In order to opt out, an employee must provide the following: (1) proof that the employee and all individuals for whom the employee intends to claim a personal exemption deduction for the taxable year or years that begin or end in or wit h the City’s plan year to which the opt out applies (“tax family”), have or will have minimum essential coverage through another source (other than coverage in the individual market, whether or not obtained through Covered California) for the plan year to which t he opt out arrangement applies (“opt out period”); and (2) the employee must sign an attestation that the employee and his/her tax family have or will have such minimum essential coverage for the opt out period. An employee must provide the attestation every plan year at open enrollment. The opt -out payment cannot be made and the City will not in fact make payment if the employer knows that the employee or tax family member doesn’t have such alternative coverage, or if the conditions in this paragraph are not otherwise satisfied.
c. Retiree Health Contribution:
The City shall provide each employee who retires the minimum employer monthly health premium contribution as designated by the Health Insurance Provider and based on verification of enrollment in a health plan. If the retiree does not participate wit h the City’s designated Health Insurance Provider, this contribution will be paid to the retiree annually after the end (December) of the plan year and said contribution shall terminate upon the retiree’s sixty-fifth (65
th) birthday.
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN Page - 8 -
SECTION 10: Dental Insurance
The City shall provide group dental insurance coverage. Full-time regular employees and elected officials are required to enroll in group dental coverage at the minimum single- party rate. The City will pay the single party rate of the dental pl an and if the selected dental plan is higher, then the employee shall be responsible for paying the difference, which shall be paid from the City’s contributions as set forth in Section 9.
SEC
TION 11: Optical Insurance
The City shall provide group optical insurance coverage. Full-time regular employees and elected officials are required to enroll in group optical coverage at the minimum single- party rate. The City will pay the single party rate of the o ptical plan and if the selected optical plan is higher, then the employee shall be responsible for paying the difference, which shall be paid for from the City’s contributions as set forth in Section 9.
S
ECTION 12: Short-Term/Long-Term Disability Insurance
The City agrees to provide access to a short-te rm/long-term disability insurance policy or coverage.
Employees are required to pay for this short-term/long-term disability insurance.
SECTION 13: Life Insurance
The City will provide a life in surance plan. All non-represented employees shall be prov ided coverage amounts of one time their annual salary. Elected officials will continue to receive life insurance coverage of $50,000. The City shall pay the life insurance premiums for all non- represented full-time, continuous salaried employees and elected officials.
S
ECTION 14: Employee Assistance Program
The C
ity shall provide an Employee Assistance Program for all full -time continuous salaried employees, elected officials, and dependent coverage.
SECTION 15: Benefit Amendment Clause
Any other employee benefit expressed in terms of days earned, not specifically mentioned above, is hereby amended to provide eight (8) hours accrued benefit in lieu of days.
S
ECTION 16: Work Schedules
M
anagement is authorized to change normal work schedules for employees to include closed Fridays , Saturdays and Sundays to serve the customer service needs of the City and save overtime costs.
Reasonable notice of two weeks must be provided unless the normal work schedule change is mutually agreed to by the supervisor and employee. Human Resources and Payroll will maintain employees’ assigned schedules.
For
purposes of continuing the workweek schedule without the City incurring any increased cos ts or the employees receiving any increase in benefits, the following shall apply:
1. G
eneral Agreement - Whenever any oral or written practice, procedure, or policy provides employee economic benefits in terms of days, all such provisions shall be converted to provide such economic benefits in terms of hours and any such practice, procedure, or policy which previously was phrased in terms of days is hereby converted to eight (8) hours for each day.
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
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2. Workweek - The workweek for employees shall begin and end as follows:
a E mployees assigned to the “9/80” schedule will work four (4) days per week, nine (9) hours per day and eight (8) hours every other Friday, with the alternating Friday off the workweek shall begin each Friday afternoon at 12:01 p.m. and end the following Friday morning at 12:00 p.m. noon. As established by the City in January 1996.
b E mployees assigned to work the “4/10” schedule will work four (4) days per week, ten (10) hours per day, their workweek shall begin at 12:01 a.m. each Monday morning and end the followin g Sunday night at 12:00 p.m. midnight. As established by the City in 1996. c Employees assigned to work the “5/8” schedule will work five (5) days per week, eight (8) hours per day, their work week shall begin at 12:01 a.m. each Monday morning and end the following Sunday night at 12:00 p.m. midnight. As est ablished by the City in the Personnel Rules and Regulations, Rule V, Section 1.
An employee’s normal work schedule may be adjusted during a workweek, with time off on an hour - for-hour basis in lieu of overtime during the same workweek.
3. Holidays –
a Paid holidays will be paid at the same number of hours of the employee approved work schedule. For example, employees working a 4/10 schedule: paid holiday will be at ten (10) hours per holiday.
b W hen assigned to the 4/10 schedule and a holiday falls on an employee’s normal schedule day off, the hours will be accrued and utilized with Supervisor approval at a later time that does not unduly disrupt the operations of the department. On June 30th of each year, accrued holiday hours shall be paid down to zero. Christmas Eve, Christmas Day and New Year’s Day holiday hours will not be accrued and must be used during the City’s closure.
SECTION 17: Holidays
All full- time continuous salaried employees shall be compensated at the regular rate for the following holidays:
1. Independence Day
2. Labor Day
3. Columbus Day
4. Veteran’s Day
5. Thanksgiving Day
6. Day after Thanksgiving
7. Christmas Eve
8. Christmas Day
9. New Year’s Day
10. Martin Luther King Jr. Day
11. President’s Day
12. Memorial Day
Columbus Day will be observed in FY 2021- 22, during the Pilot Schedule Program. If the Program continues on the following year and thereafter, observing Columbus Day will be reviewed each year by Management for observance and an announcement will be provided by the end of August.
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
Page - 10 -
City facilities will be closed between Christmas Day and New Year’s Day in what was a regular work week. For example, in 2013 the City shall be closed December 26, 27, 30 and 31 and in subsequent years, dates could be different based on the calendar. Each employee shall be paid for those days for the same amount of hours for which the employee would have been regularly scheduled and would have worked if the City were not closed on those dates. Emergency service employees may not be eligible for this closure but shall be eligible for overtime if worked.
Christmas Eve, Christmas Day and New Year’s Day will not be accrued holiday hours and must be used during the City’s closure and employees will only be compensated up to the amount of their regular work schedule. For example, in 2021, City facilities will be closed on December 23 through December 31. An employee who is on the 4/10 schedule and regularly works Monday – Thursday will work/report hours as follows: 12/20, 12/21, and 12/22 regular hours, 12/23 holiday hours, 12/27 holiday hours, 12/28 and 12/29 City paid closure hours, and 12/30 holiday hours.
For employees to be compensated (vacation or sick leave) for a day off prior to or following a Holiday, the employee must request and have approved the time off prior to the Holiday. If the employee does not have written approval for the absence, the employee must provide the City with a certification of absence from a physician for the absence or the absence will result in a non-paid leave.
SECTION 18: Three-Tiered Management Program
Employees designated as either Professional/Supervisory, Management or Senior Management are not eligible for overtime pay or compensatory time for working hours over and above the normal daily work schedule. Employees so designated shall be entitled to all benefits provided to general employees and the following:
Professional/Supervisory
Administrative leave of a m aximum of fifty-five (55) hours per fiscal year at the discretion of appropriate supervisor.
Management
Administrative leave of a maximum of sixty-five (65) hours per fiscal year at the discretion of appropriate supervisor.
Senior Management/ At-Will Senior Management
Administrative Leave to a maximum of eighty -four (84) hours per fiscal year at the discretion of appropriate supervisor.
New employees’ accrual of administrative leave shall be prorated to the end of the fiscal year.
Administrative leave is intended to be used in the fiscal year. If an employee separates fro m employment, however, the employee will be compensated for any accrued, but unused, administrative leave. Any unused administrative leave will be converted to vacation hours at the conclusion of the fiscal year.
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
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SECTION 19: Vacation
All full- time employees shall, with continuous service, accrue working hours of vacation monthly according to the following schedule:
Years of Service Annual Hours Accrued
1 80
2 88
3 96
4 104
5 112
6 120
7-9 128
10 136
11-13 144
14 152
15+ 160
Employees may use up to forty (40) hours of accrued vacation after six (6) months of service.
Employees will have a maximum of 500 hours carry -over of vacation per fiscal year. On June 30, if an employee exceeds the maximum accrual allowable, the vacations hours in excess of 499 will be paid at the employee’s current hourly rate. This will be evaluated on a fiscal year basis.
During the month of October, an employee may elect to convert up to two hundred and forty (240) hours of vacation into cash payment(s) at the base rate of pay in effect at the time of the cash- out, as long as the employee has eighty (80) hours of vacation remaining on the books at the time of the pre- designation. To cash -out vacation, an employee must make an irrevocable election (i.e., pre- designation) during the month of October, specifying the total number of hours to be cashed -out from next year’s vacation leave accrual. During the calendar year following the pre- designation, an employee may choose increments of vacation to c ash-out in March, May and August; the minimum increment for vacation cash-out is twenty (20) hours. If no cash- out occurs during the year and/or any remaining balance of the pr e-designated amount will be cashed out in November. If the employee does not h ave the vac ation hours available to satisfy the amount pre- designated for cash- out, the employee will be precluded from making an irrevocable election and cashing out for the following calendar year.
All accrued but unused vacation shall be paid out to the employee upon separation of employment.
SECTION 20: Sick Leave
All full- time employees will accrue sick leave at the rate of eight (8) hours per month, ninety -six (96) hours per year. Sick leave can be accrued without limit. Eighteen (18) hours of sick leave per fiscal year may be utilized for personal time. As long as the employee has remaining forty (40) hours of sick leave accrued, employee may use eighteen (18) hours of sick leave per fiscal year for personal time. Personal time hours must be requested prior to the time of use and used during the fiscal year and can be neither cashed out nor carried over into the new fiscal year. If not used during the fiscal year any remaining personal time hours shall be lost.
The City will establish a Sick Leave Conversion Program which will allow a full-time employee with a sick leave accrual balance of 268 hours to convert sick leave hours to their vacation accrual balances once during the pay periods in October, under the following conditions:
1. Eighteen (18) hours may be converted if the full -time employee reported to work each day during the prior fiscal year and did not call in sick.
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
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2. Nine (9) hours may be converted if the full -time employee called in sick once during the prior fiscal year.
Pre scheduled sick leave use will not be considered as “not calling in sick” in numbers 1. and 2. above.
Please refer to Sick Leave Conversion Program for further details.
There will be no buyout or conversion of unused sick leave upon termination of employment.
The following only applies to all part -time, temporary, and seasonal employees as well as Administrative Interns, in accordance with California’s Paid Sick Leave law the City of Hesperia is required t o provide paid sick leave with the following conditions:
A. Three (3) days or twenty -four (24) hours of paid sick leave at the beginning of each twelve (12) month period beginning on the first date of employment or July 1, 2015, whichever is later. An employee is not eligible to begin using any accrued paid s ick leav e until after 90 days of employment with the City.
B. An employee may use sick leave for one of the following reasons:
a. For the employee’s own diagnosis, care, or treatment of an existing healt h condition or preventative care.
b. For the diagnosis, care, or treatment of an existing health condition or preventative care for an employee’s family member, including:
i. Child regardless of age or dependency status (including a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis.)
ii. Spouse or Registered Domestic Partner
iii. Parent (including biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child.) iv. Grandparent
v. Grandchild
vi. Sibling
c. To obtain any relief or services related to being a victim of domestic violence, sexual assault, or stalking after giving the City reasonable advance notice of the need for time off
d. where feasible, for the following non exhaustive reasons:
i. A temporary restraining order or restraining order.
ii. Other injunctive relief to help ensure the health, safety or welfare of themselves or their children.
iii. To seek medical attention for injuries caused by domestic violence, sexual assault, or stalking.
iv. To obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence, sexual assault, or stalking. v. To obtain psychological counseling related to an experience of domestic violence, sexual assault, or stalking.
vi. To participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault, or stalking, including temporary or permanent relocation.
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
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C. An employee shall provide reasonable advance notification of their need to use accrued paid sick leave to their supervisor if the need for paid sick leave use is foreseeable ( e.g., doctor’s appointment scheduled in advance). If the need for paid sick leave use i s unforeseeable, the employee shall provide notice of the need for the leave to their supervisor as soon as is practicable.
D. An employee who uses paid sick leave must do so with a minimum increment of two (2) hours of sick leave.
E. Paid sick leave will not be considered hours worked for purposes of overtime calculation. An employee will not receive compensation for unused accrued paid sick leave upon termination, resignation, retirement, or other separation from employment from the City.
F. If an employee separates from City employment and is re- hired by the City within one year of the date of separation, previously accrued and unused paid sick leave hours shall be reinstated.
However, if a rehired employee had not yet worked the requisite 90 days of employment to use paid sick leave at the time of separation, the employee must still satisfy the 90 days of employment requirement collectively over the periods of employment with the City before any paid sick leave can be used.
SECTION 21: Bereavement
Rule VI, Leave, Section 7, Sick Leave, Subsection 8, Bereavement Leave, of the Personnel Rules and Regulations is revised to provide that any eligible employee who is absent from work by reason of a death in their immediate family will be allowed a leave of absence with pay up to five (5) cumulative working days (44 hours) per occurrence or a death of their blood relative, will be allowed a leave of absence with pay up to three (3) cumulative working days (27 hours) per occurrence. Additional time may be requested by the eligible employee, however, this additional time will be deducted from the employee’s leave accrual, e.g. sick (up to 13 hours); vacation.
For the purpose of this section, “immediate family” is defined as employee’s spouse or registered domestic partner, employee’s parents, employee’s spouse’s parents, employee’s child, step -child, step- parent, grandparent, grandchild, brother, sister, step- brother, and step-sister. “Blood relative” is d efined as, aunt, uncle, niece, nephew, brother -in-law, sister-in-law, legal guardian, employee’s ex -spouse who is parent of employee’s children, domestic partner as defined under California Family Code Section 297, and/or any other individual living in the same household as the City employee. The department head and the City Manager shall approve such bereavement leave with their signature.
SECTION 22: Workers' Compensation
The City provides certain supplementary Workers' Compensation benefits for temporary disabilities other than Police and Fire. (See Resolution No. 90-36).
SECTION 23: Jury Duty
Rule VI, Section 3 (1), “Jury Duty” of the Personnel Rules and Regulations is superseded to provide that employees who are summoned to appear and serve for jury duty shall be entitled to up to eighty (80) hours leave.
SECTION 24: Leave Without Pay
Rule VI, Section 4, “Leave of Absence Without Pay” of the Personnel Rules and Regulations is superseded to provide that such maximum leave shall be eighty (80) working hours rather than ten (10) working days.
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
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SECTION 25: Education Reimbursement/Certification Incentive Pay
A. The City’s Tuition Reimbursement Policy for non- represented employees shall provide a maximum of $3,000 reimbursement per fiscal year per non-represented full-time employees. For full-time no n-represented employees with five consecutive years of employment based on an employee’s hire date, the City shall provide $4,000 reimbursement per fiscal year.
In all other respects, the Tuition Reimbursement Policy shall remain in full force and effect.
When the City determines that a reclassification of a position requires the incumbent to obtain a specialized license or certificate, or if such a requirement is established for the position by a federal or state agency during an employee's employment in the position, the City agrees to assume the cost for such certification or license. The City may pay directly or reimburse the employee if proof of cost is presented by the employee.
B. Commercial Driver’s License Incentive Pay
Employees maintaining a valid Commercial Driver’s License either Class “A” or “B”, placed on the City’ Department of Transportation Random list for testing and complies with the City’s Drug and Alcohol Testing Program for Commercial Drivers shall receive a one-time payment of $100 each fiscal year. This certification payment shall be made on or after February 1 and each year thereafter for those employees who hold the License as of January 31st. This certification pay will not be co nsidered special compensation and will not be repor ted to the California Public Employees’ Retirement System. Those employees receiving auto allowance are not eligible for this incentive.
SECTION 26: Bilingual Pay
The City has established a Bilingual Pay Program which compensates designated employees who provide translation to and from a foreign language and related services. Department heads will recommend which classifications and employees to be considered for bilingual pay, and the City Manager will approve assignment recommendations based on the customer services needs of the City.
Eligible employees will be required to pass a test that shall be administered by a qualified agency or individual. Employees who pass the test and are assigned to provide bilingual translation services will receive $100 per month as compensation. If the employee is reassigned to no longer provide bilingual translation services, the $100 bilingual pay will be discontinued and will not be paid in the following month. It should be noted that regardless of whether or not an employee is receiving bilingual pay, all employees having bilingual capability shall be expected to reasonably respond to non- English inquiries directed to them in their capacity as a City employee.
SECTION 27: Cell Phone Allowance
The City shall provide a cell phone allowance of $100 per month (24 pay periods per year) to Senior Management employees as designated by the City Manager.
The City Manager may designate employees in the role of Public Information Officer and Emergency Responders in the Management and Professional Supervisory Tier to receive a Cell Phone allowance of $100 per month (24 pay periods per year).
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
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SECTION 28: Automobile Allowance
Senior Management/ At-Will Senior Management
Automobile allowance of $600 per month is provided to Senior Management employees, if a City vehicle is not provided. The City Engineer, Deputy Community Development Director, Deputy Development Services Director, Deputy Finance Director, and Deputy Human Resources/Risk Management Director are in the Senior Management category, however do not receive the Automobile Allowance monthly payment.
Elected Officials
May select to receive an amount up to $600 per month as automobile allowance.
SECTION 29: Uniforms and Boot Reimbursement
Affected employees will receive eleven (11) sets of uniforms rented by the City. The City will pay for the cleaning of these uniforms.
In accordance with CalPERS regulations, any “Classic” employee required to wear a full uniform that is rented and maintained by a uniform vendor through a contract with the City shall have the monetary value of the City-provided uniforms reported to CalPERS as special compensation. The monetary value is based on the pricing for the rental and maintaining (i.e. laundering) the eleven (11) sets of unif orms provided to each employee. The current monetary value that will be reported bi -weekly to CalPERS is $10.70; however, should a new contract between the City and a uniform vendor be approved, which results in a change to the monetary value, the new amount will be reported to CalPERS. The pricing will be specified in the contract between the City and the uniform vendor and will be adjusted accordingly when a change in the cost of renting and maintaining (i.e. laundering) of uniforms occu rs. The uniform vendor contract will remain on file with the City Clerk’s office and is selected via a formal bid process.
In accordance with CalPERS PEPRA regulations, any “New Member” employees required to wear a full uniform that is rented and maintained by a uniform vendor through a contract with the City shall not have the monetary value of the City-provided uniforms reported to CalPERS as special compensation.
In addition, each affected employee will be allowed reimbursement of up to $3 00 for boot purchases made during each fiscal year. A second pair of boots may be reimbursed in a fiscal year with the supervisor’s approval prior to the purchase. Affected employees must purchase boots which meet applicable requirements and specifications as set forth in the American National Standard for personal protection protective boot wear, Z41 1991 and must purchase the boots at a City approved store if the employee wants the store to bill the City directly.
Any portion of this reimbursement which is not u sed to purchase boots may be used to purchase boot accessories such as laces and inserts. Reimbursement for these expenses shall occur at the same time reimbursement occurs for boot purchases and the total shall not exceed the amount as stated above.
SECTION 30: Overtime Pay
A. Overtime Calculation
All employees required to perform in excess of forty (40) hours in a sev en (7) day cycle or in excess of their regularly scheduled workweek, shall receive compensation at the rate of time and one -half his/her regular rate of pay.
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
Page - 16 -
In determining an employee's eligibility for overtime, the below listed paid leaves of absence shall be included in the total hours worked. Excluded are duty-free lunches, travel time to and from work, and time spent conducting bona fide volunteer activities. Paid leaves of absence include the following:
Holiday Leave
Jury Duty
Bereavement Leave
The following will also be included in paid leave of absence:
Pre-approved (minimum 1 week notice) sick leave
Pre-approved (minimum 1 week notice) vacation leave
There shall be no pyramiding of overtime. Hours worked by an employee in any workday or workweek in which premium rates have once been allowed shall not be used again in any other overtime calculation other than computing total actual hours worked.
Time worked shall be computed by rounding the nearest quarter of an hour.
B. Overtime Authorization
All overtime requests must have the prior authorization of a supervisor prior to the commencement of such overtime work. Where prior written authorization is not feasible, explicit verbal authorization must be obtained. Calls for service beyond the end of the duty time are considered as authorized.
An employee's failure to obtain prior approval may result in the denial of the overtime request.
Employees designated as professional/supervisory, management, or s enior management are excluded from this provision.
SECTION 31: Compensatory Time Flexibility
In lieu of receiving overtime pay pursuant to this article, an employee may elect to receive compensatory time off on a time and one- half basis. No employee shall accrue more than eighty (80) hours of such compensatory time. Should any employee exceed eighty (80) hours of accrued compensatory time, he/she shall be paid at time and one-half his/her regular rate for all hours in excess of eighty (80) hours.
An employee may use such compensatory time within a reasonable period after making the request if the use of compensatory time does not unduly disrupt the operations of the department.
On June 30th of each year, all employees accrued compensatory time shall be paid down to zero.
Employees designated as professional/supervisory, management, or senior management are excluded from this provision.
SECTION 32: Out of Class and Acting Assignment Pay
Out-of-class pay may be provided to non-represented employees whenever the needs of the City make it necessary to require an employee to temporarily perform the duties of a higher classification. Situations where out-of-class pay may be necessary usually are due to a higher classification employee being on a leave of absence, medical leave, or other non -routine circumstances, or when a higher classification position is vacant. Generally, out -of-class pay is not provided to an employee whi le filling in for a higher classification for less than two workweeks or vacation and is not required for longer time periods.
The employee approved to receive out of class pay shall receive five percent (5%) or more salary than the salary (step) of his /her current sa lary, but in no case shall such salary exceeds the top step of the higher classification. The employee approved to receive out -of-class pay shall be eligible to receive merit increases in his/her regular position during the out -of-class pay assignment. Benefits will be
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
Page - 17 -
calculated using the current base salary of the employee’s regular position during the out -of-class pay assignment. When the out-of-class pay assignment is ended, the employee will receive his/her original salary rate. Out -of-class pay must be requested by a department head and approved by the City Manager.
Acting assignment pay is for short -term assignments, special projects or specific purpose and/or programs which will t erminate in a given period of time, usually six months or less. A non-represented employee approved for an acting assignment is being compensated for performing duties at a level higher than their current classification level. The acting assignment pay is five (5) percent or more salary than the salary step of his/her current salary, but in no case shall exceed twenty (20) percent.
The employee approved to receive acting assignment pay shall be eligible to receive merit increases in his/her regular position during the assignment. Benefits will be calc ulated using the current base salary of the employee’s regular position during the acting assignment pay assignment. When the acting assignment pay is ended, the employee will receive his/her original salary rate. Acting assignment pay must be requested in writing by the department head and approved by the City Manager.
The City will follow the guidelines and rules as established by the California Public Employee Retirement System (CalPERS) law when reporting earnings for working out of class assignments.
SECTION 33: Stand-by Duty
Employees required to standby to handle overtime work which may arise shall be compensated at the rate of two hundred dollars ($200) per seven (7) day period.
Standby status is defined as time in which an employee can be reached at his /her residence or by cell phone and be able to respond in thirty minutes.
Standby time is considered special pay under the Fair Labor Standards Act (FLSA). Time compensated in this manner shall not constitute hours worked for purpose of FLSA; however, standby pay will be included into the overtime calculation should overtime be earned during the work week
SECTION 34: Promotions and Step Placement
Any promotion requires a one (1) year probationary period. Once an employee receives regular full-time status at a position and then is promoted, the employee may not be terminated in the event they are unable to successfully fulfill the requirements of the position promoted to but may be reassigned to an equivalent position within the organization in which they served prior to being promoted.
Upon promotion, the employee will receive a minimum of five percent (5%) salary increase or the beginning of the classification range, whichever is greater.
The City Manager is authorized to change an employee’s step to a higher step on the employee’s position classification range in recognition of special accomplishments, retention, or any other circumstances which merit an increase in salary.
SECTION 35: Outside Employment
It is the policy of the Cit y of Hesperia to allow employees to hold a second job as long as the second job does not present a conflict of interest to their position with the City. In addition, it is required that a second job be reported to the Management Services Department.
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
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SECTION 36: Smoking
The City has a no smoking policy to include all tobacco products, including e- cigarettes, vapors exhalants, etc,. Employees are prohibited from use of products in all City buildings including passenger vehicles and equipment owned or leased by the C ity. Use of the products will also be prohibited within 20 feet of all vehicles, equipment and entrances, exits, operable windows and ventilation ducts of City buildings.
SECTION 37: Employer/Employee Relations
The City has an Employer/Employee Relations Resolution adopted which provides the guidelines for forming recognized Employee Associations. (See Resolution No. 90-37).
SECTION 38: Disciplinary Appeals
This Advisory Arbitration Provision amends the City of Hesperia Personnel Rules and Regulations, Rule XI, “Appeal Procedures,” by deleting all current text on Pages 60 and 61, and substituting the following language:
Appeal Procedures
Any permanent employee in the classified service shall have the right to appeal any termination, suspension of forty (40) hours or more, reduction in salary, or non- probationary demotion. The appeal process shall not be applicable to those positions which may be deemed exempt or to probationary employees. The appeal process shall not be applicable to verbal and written reprimands, suspensions of less than forty (40) hours, probationary demotions, performance evaluations and denial of merit increases. An employee desiring to appeal the appointing authority's decision shall have ten (10) calendar days after rece ipt of the response to file an appeal. The employees request for appeal must be addressed to the Director of Administrative Services and received in the Human Resources Division so that same is date stamped by the Human Resources Division within the ten (10) day period.
If, within the ten (10) day appeal period, the employee involved does not file said appeal, unless good cause for failure is shown, the action of the appointing authority shall be considered conclusive and shall take ef fect as prescribed. If within the ten (10) day appeal period, the employee involved files such notice of appeal by giving written notice of appeal to the Human Resources Division, an appeal hearing shall be established as follows:
A. The American Arbitrati on Association shall be requested to submit a list of seven (7) persons qualified to act as hearing officers to the City and the employee. Within ten (10) days following receipt of the list of hearing officers, the parties shall meet to select the hearing officer. The parties shall alternately strike one (1) name from the list of hearing officers (the right to strike the first name to be determined by lots) until one (1) name remains, and that person shall be the hearing officer.
B. Where practicable, the date for a hearing shall not be less than twenty (20) calendar days, nor more than sixty (60) calendar days, from the date of filing of the appeal with the Director of Administrative Services. The parties may stipulate to a longer or shorter period of time in which to hear the appeal. All interested parties shall be notified in writing of the date, time, and place of the hearing.
C. All hearings shall be private provided, however, that the hearing officer shall, at the request of the employee, open the hearing to the public.
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
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SECTION 38: Disciplinary Appeals (Continued)
D. Subpoenas and subpoenas duces tecum pertaining to a hearing shall be issued at the request of party, not less than seven (7) calendar days, prior to the commencement of such hearing. After the c ommencement of such hearing, subpoenas shall be issued only at the discretion of the hearing officers.
E. The hearing need not be conducted in accordance with technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on whic h reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rules which might make improper admi ssion of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence , but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The rules of privilege shall be effective to the same extent that they are now or hereafter may be recognized in civil actions, and irrelevant and unduly repetitious evidence shall be excluded. The hearing officer shall not be bound by technical rules of evidence.
F. Each party shall have their rights: To be represented by legal counsel or other person of his/her choice; to call and examine witnesses; to introduce evidence; to cross -examine opposing witnesses on any matter relevant to the issues , even though that matter w as not covered in the direct examination; to impeach any witness regardless of which party first called him/her to testify; and to rebut the evidence against him/her. If the employee does not testify in his/her own behalf, he/she may be called and examined -as if under cross-examination. Oral evidence shall be taken only on oath or affirmation. A court reporter will be engaged to record the hearing, unless the parties (City, hearing officer, employee/employee representative) mutually agree that same is n ot necessary.
G. The hearing shall proceed in the following order, unless the hearing officer, for special reason, otherwise directs:
1. The party imposing discipline shall be permitted to make an opening statement;
2. The appealing party shall then be permitted to make an opening statement;
3. The party imposing disciplinary action shall produce the evidence on his/her part; the City bears the burden of proof and burden of producing evidence;
4. The party appealing from such disciplinary action may then open his/her de fense and offer his/her evidence in support thereof; the employee bears the burden of proof and the burden of producing evidence for any affirmative defenses asserted;
5. The parties may then, in order, respectively offer rebutting evidence only, unless the he aring officer for good reason permits them to offer evidence upon their original case;
6. Closing arguments shall be permitted and written briefs may be permitted at the discretion of the hearing officer.
H. The hearing officer shall determine relevancy, weight , and credibility of testimony and evidence.
He/she shall base his/her findings on the preponderance of evidence. During the examination of a witness, all other witnesses, except the parties, shall be excluded from the hearing unless the hearing officer , in his/her discretion, for good cause otherwise directs. No still photographs, moving pictures, or television pictures shall be taken in the hearing chamber during a hearing.
The hearing officer, prior to or during a hearing, may grant a continuance for any reason he/she believes to be important to reaching a fair and proper decision. The hearing officer shall render his/her judgment as soon after the conclusion of the hearing as possible and in no event later than thirty (30) days after conducting the hearing. His/her decision shall set forth which charges, if any, are sustained and the reasons therefore. The opinion shall set forth findings of fact and conclusions.
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
Page - 20 -
SECTION 38: Disciplinary Appeals (Continued)
I. T he hearing officer may recommend sustaining or rejecting any or all of the charges filed against the employee. He/she may recommend sustaining, rejecting, or modifying the disciplinary action invoked against the employee. He/she may not recommend for discipline more stringent than that issued by the department head.
The hearing officer's opinion and recommendation shall be filed with the City Manager, with a copy sent to the charged employee and the Director of Administrative Services, and shall set forth his/her findings and recommendations. If it is a dismissal hearing and a dismissal is not the hearing officer's recommendation, the opinion shall set forth the date the employee is recommended to be reinstated and/or other recommended action. The reinstatement date, if appropriate, may be any time on or after the date of disciplinary action.
J. Within thirty (30) days of the receipt of the hearing officer's findings and recommendation, and transcript (which is optional only by the mutual consent of the City and the employee), whic hever date is later, the City Manager, or his/her designee, shall adopt, amend, modify, or reject the recommended findings, conclusions, and/or opinions of the hearing officer. Prior to making a decision which modifies or rejects the recommendation of the hearing officer, the City Manager, or his/her designee, shall order and read the transcript of the Third Party Advisory Process. Prior to making a decision which supports the hearing officer, the City Manager, or his/her designee, shall not conduct a de novo hearing. The City Manager, or his/her designee, may, at his/her option, allow limited oral arguments and/or may request and review written statements from either side. The decision of the City Manager, or his/her designee, shall be final and conclusive. Copies of the City M anager's or his/her designee's decision, including the hearing officer's recommendation(s), shall be filed where appropriate, including the employee's personnel file, unless no discipline is upheld by the City Manager.
K. The decision of the City Manager, or his/her designee, shall be final and conclusive. Copies of the City Manager's, or his/her designee's decision, including the hearing officer's recommendation(s) shall be filed where appropriate, including the employee's personnel file, unless no discipline is upheld by the City Manager, or his/her designee.
L. Each party shall bear equally the cost of facilities, fees and expenses of the hearing officer, including the court reporter and transcripts. Each party shall bear its own witness and attorney fees. If either party unilaterally cancels or postpones a scheduled hearing, thereby resulting in a fee charged by the hearing officer or court reporter, then the party responsible for the cancellation or postponement shall be solely responsible for payment of that fee. This process shall not apply to mutual settlements by the parties which result in an arbitration fee.
M. In the case of suspension, demotion, reduction in salary, or dismissal prescribed by the City Manager, the time of such suspension, demotion or dismissal shall be effective from the first day after such delivery of said decision or shall relate back to and be effective as of the date the employee was disciplined pending hearing before and decision by the City Manager, or his/her designee, whichever is applicable. If discipline imposed resulted in loss of pay, and the decision results in reduction or elimination of loss of pay, the pay loss shall be restored to the employee based on the number of standard work hours lost computed at his/her then base hourly rate.
N. The provisions of Section 1094.6 of the Code of Civil Procedure shall be applicable to proceedings under this Section.
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
Page - 21 -
SECTION 38: Disciplinary Appeals (Continued)
Appeals of Suspensions Less Than Forty (40) Hours
A permanent employee shall have the right to appeal a suspension less than forty (40) hours in the following manner:
1. The appointing authority shall cause to be served on the employee affected, by registered mail or personal delivery, a statement signed by the appoint ing authority of the speci fic action against the employee. This statement shall clearly inform the employee that he/she has the right, within five (5) working days after receipt of this notice, to request an informal hearing on the action by filing the request with the appointing authority.
2. If within the five -day appeal period the employee involved does not file said appeal, unless good cause for the failure is shown, the action of the City shall be considered conclusive and s hall take effect as prescribed.
3. If within the five -day appeal period the employee involved files such notice of the appeal by giving written notice of appeal to the appointing authority, a time for an appeal hearing before the City Manager, or his/her designee, shall be established. The date for a hearing shall not be less than ten (10) days, nor more than thirty (30) days, from the date of the filing of the appeal, unless the
4. parties stipulate to a different date. All interested parties shall be notified in writing of the date, time, and place of the hearing at least seven (7) calendar days prior to the hearing.
5. The City Manager, or his/her designee, shall conduct an informal hearing on the appeal. Each party shall have the opportunity to present all relevant information in support of its respective position.
These proceedings may be electronically recorded and either party shall have the right to cause them to be reported by a certified shorthand reporter at the party's expense.
Within ten (10) wor king days after the conclusion of the hearing, the City Manager, or his/her designee, shall deliver to the employee a written decision which shall either (a) affirm the decision, (b) modify it by (1) holding that certain charges were not established by a preponderance of the evidence and/or (2) reducing the penalty or (3) overturn the decision in its entirety. Said decision shall be final and binding on the parties, subject to their right to seek judicial review pursuant to 1094.5 and 1094.6 of the California Code of Civil Procedure.
SECTION 39: Layoffs
Amend City of Hesperia Personnel Rules and Regulations (9/15/88), Rule VIII, Section 3, Reduction in Force by Layoff, by deleting all current text on Page 49 and substituting the following language.
A. Advance Notice. Employees separated by reason of a reduction in force shall be given at least 30 days prior notice of separation and the reasons therefore. If one or more employee to be separated is represented by a duly recognized employee organization, the City will, on request, meet with such organization concerning the impact of the layoff.
B. Bumping. An employee whose position has been abolished and who would be laid off shall have the right to "bump" into a classification the employee previously held with the City if such position receives the same or lower salary, and is determined by the City Manager or designee to be qualified for such position at the time, based upon the applicable job description.
C. Offer of Reassignment. An employee's appointment shall not be terminated as a result of a reduction in force procedure before the employee has been made a reasonable offer of reassignment, if such offer is possible.
EXHIBIT A
NON-REPRESENTED EMPLOYEES’ COMPENSATION AND BENEFIT PLAN
Page - 22 -
D. Offer of Vacant Position. An employee whose position has been abolished and who would otherwise be laid off shall be offered the opportunity to transfer, without examination, to any then currently existing vacant position with the same or lower salary if the employee meets the minimum qualifications for such position, as determined by the City Manager or designee based upon the applicable job description and new application. If two or more employees are eligible for appointment to a vacancy, the criteria set forth in the paragraph entitled Order of Separation shall be applied to determine which employee shall be offered the vacant position.
E. Laid Off Employee on Reemployment Register. The names of regular employees who have been laid off due to reduction in force shall be placed on an appropriate lay off reemployment list according to date and order separated and shall be eligible for reemployment.
Each employee on a lay off reemployment list shall remain on that list for one (1) year. Employees whose name appears on a lay off reemployment list shall be considered for reemployment in the class from which the employee was laid off prior to using any other available employment eligible list to fill regular vacancies in the subject class. The Personnel Officer can extend the active period of reemployment lists or individual employees eligibility on such lists for six (6) month periods as he/she determines to be in the best interest of the City.
1. Notice. The City will notify, by certified mail to the laid off or displaced employee's last known address, of all vacanci es f or which the employee is eligible for employment under this provision. Such notice shall be given for all such positions which arise for one (1) year from the date of layoff or displacement. A laid off or displaced employee who fails to report for appointment within two (2) workweeks of notice shall be deemed to have rejected appointment and shall be automatically removed from the reemployment register list.
2. Reappointment. An employee who is laid off or displaced to a lower classification under this provision shall be entitled to automatic appointment to any vacant position from which he/she was laid off or displaced or for which he/she is qualified if such employee reports for duty on receiving notice. Appointments shall be made in the reverse order of layoffs, that is, the last laid off shall be the first offered reappointment.
F. Order of Separation.
Selection for retention shall be based primarily upon seniority of service with performance being taken into account.
While seniority is the primary factor in determining order of separation, it is not in and of itself the only determining factor.
Therefore, this policy does not preclude the retention of members which have less seniority to other members within the class for which the reduction in force action may be taken. The following criteria shall be considered in evaluating performance:
1. The employee's written performance evaluations.
2. The history of an employee's written disciplinary actions.
3. The employee's written record of attendance including patterns of sick leave usage, tardiness and unexcused absences.
All newly hired employees serving an initial probationary period, part -time, temporary, seasonal, or emergency employees, in classifications affected by layoff, shall be laid off before any permanent employee is laid off.
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City of Hesperia
STAFF REPORT
DATE: May 17, 2022
TO: Mayor and Council Members
FROM: Nils Bentsen, City Manager SECOND READING AND ADOPTION BY: Rachel Molina, Assistant City Manager
Ryan Leonard, Senior Planner
SUBJECT: CUP19-00010, TPM22-00002 & DA22 -00001 (Covington Group, Inc. ; APNs:
3064-351-03, 3064-361-01, 3064-391-01, 3064-401-02)
RECOMMENDED ACTION
The Planning Commissio n recommends that the City Council adopt Resolution No. 20 22-37, recommending that the City Council make the environmental determination pursuant to the California Environmental Quality Act (CEQA) by certifying the Final Environmental Impact Report (FEIR) and adopting a statement of overriding considerations and adopt Resolution Nos. 2022- 38 and 2022-39, approving CUP19-00010 and TPM22-00002 as well as Ordinance 2022 -09, approving DA22-00001.
PROJECT SUMMARY
Proposal: Proposal: A Conditional Use Permit (CUP) has been filed to construct a 3,745,429 square foot distribution center and industrial park on 194.8 gross acres. The project, identified as “Hesperia Commerce Center II” will consist of the construction of three industrial/ warehouse buildings with associated office spaces, surface parking and loading areas. The northwesternmost building (referred to as Building 1) is proposed to be 1,567,317 square feet; the southernmost building (referred to as Building 2) is proposed to be 2,065,987 square feet and would potentially be divided between two spaces within the same building; and the northeastern most building (referred to as Building 3) would be 112,125 square feet.
A tentative parcel map has also been filed to rearrange the four existing parcels into four new parcels that generally follow the alignment of the future buildings. In addition, a Development Agreement (DA) is proposed that would allow the CUP to be effective for 12 years initially, with a provision allowing an automatic 8-year extension. In return, the City is requiring the Developer to construct certain off -site water and sewer infrastructure within the first 3 years from when the Development Agreement is executed. The applicant is also required to provide a one-time agreed upon community benefit contribution to the City.
Planning Commission Review: On April 14, 2022 the Planning Commission voted 5-0 to forward this item to the City Council with a recommendation for approval.
Conclusion: Because the project is consistent with the City’s General Plan, most of the project’s impacts, whether less than significant, mitigable, or significant and unavoidable were known and acknowledged by the City when the General Plan EIR was adopted in 2010. The Planning Commission recommends that p rior to acting on the project, the City Council make the environmental determination, certifying that the Final EIR is complete; that it has been prepared
Staff Report to the City Council
CUP19-00010, TPM22-00002, and DA22-00001
May 17, 2022
in compliance with CEQA; that it reflects the City’s independent judgment; and that all impacts from carrying out the project have been identified and disclosed to the public . Resolution 2022- 37 has been prepared to document this determination as well as the Statement of Overriding Considerations. Once that has occurred, the City Council can consider the conditional use permit, tentative parcel map and Development Agreement. If recommended for approval, the mitigation monitoring and reporting program will be administered with the project approval.
ATTACHMENT(S)
1. Resolution No. 2022-37
2. Exhibit A (Environmental findings for EIR).
3. Exhibit B (Mitigation Monitoring and Reporting Program)
4. Resolution No. 2022-38
5. Exhibit A list of conditions (CUP19-00010)
6. Resolution No. 2022-39
7. Exhibit A list of conditions (TPM22-00002)
8. Ordinance No. 2022-09 (DA22-00001)
9. Development Agreement
10. Planning Commission Staff Report with attachments.
ATTACHMENTS 1-7 AVAILABLE FOR REVIEW IN THE CITY
CLERK’S OFFICE AND CITY WEBSITE
ORDINANCE NO. 2022-09
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HESPERIA,
CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE
CITY OF HESPERIA AND COVINGTON GROUP, IN C REGARDING THE
HESPERIA COMMERCE CE NTER II PROJECT LOCATED ON THE NORTH SIDE OF PHELAN ROAD, WEST OF HIGHWAY 395 , SOUTH OF YUCCA TERRACE DRIVE AND EAST OF THE UTILITY CORRIDOR (DA22-00001)
WHEREAS, Covington Group, Inc. (Applicant) has filed an application requesting approval of Development Agreement DA 22-00001, described herein (hereinafter referred to as "Application"). DA 22-00001 shall apply to Conditional Use Permit CUP 19-00010 (hereinafter referred to as the “Hesperia Commerce Center II” project; and
WHEREAS, pursuant to California Government Code Section 65865, any city, county, or city and county, may enter into a development agreement with any person having a legal or equitable interest in real property for the development of the property as provided in this article; and
WHEREAS, pursuant to California Government Code Section 65865.2, a development agreement shall specify the duration of the agreement, the permitted uses of the property, the density or intensity of use, the maximum height and size of propose d buildings, and provisions for reservation or dedication of land for public purposes. The development agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms, restr ictions, and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the agreement. The agreement may provide that construction shall be commenced within a specified time and that the project or any phase thereof be completed within a specified time. The agreement may also include terms and conditions relating to applicant financing of necessary public facilities and subsequent reimbursement over time; and
WHEREAS, the Applicant also proposes to obtain approval of a development agreement, to allow the CUP to be effective for 12 years initially, with a provision allowing an automatic 8 -year extension. In return, the City is requiring the Developer to construct specified water and sewer infrastructure within the first 3 years from when the Development Agreement is executed. In addition, the applicant is required to provide a one -time community benefit contribution. The developer is also required to anne x into the City -wide industrial community facilities district (CFD) within the first 6 months from approval of the Development Agreement; and
WHEREAS, the Application applies to 194.8 acres of vacant property zoned Commercial Industrial Business Park (CIBP) within the Main Street and Freeway Corridor Specific Plan (Specific Plan), located on the north side of Phelan Road, west of Highway 395, south of Yucca Terrace Drive and ea st of the transmission line utility corridor and consists of Assessor's Parcel Numbers 3064-351-03, 3064-361-01, 3064-391-01, 3064-401-02; and
WHEREAS, the Application, as contemplated, proposes to construct a 3,745,429 square foot distribution center / industrial park on 194.8 gross acres. The proposed use is consistent with the General Plan and Specific Plan, although approval of a CUP is required to approve the distribution warehouses in excess of 200,000 square feet; and
Ordinance No. 2022-09
WHEREAS, Tentative Parcel Map No. 20257 (TPM22 -00002) has also been filed to rearrange the four existing parcels into four new parcels that generally follow the alignment of the future buildings; and
WHEREAS, in furtherance of the public purposes of the City, the Applicant and the City desire to enter into a Development Agreement; and
WHEREAS, on April 14, 2022, the Planning Commission of the City of Hesperia conducted a duly noticed public hearing pertaining to the proposed Application, and concluded said hearing on that date; and
WHEREAS, on May 17, 2022, the City Council of the City of Hesperia adopted Resolution No. 2022-37, adopt ing the environmental findings pursuant to California Environmental Quality Act (CEQA), adopting a Statement of Overriding Considerations, certifying the Final Environmental Impact Report ( SCH #2019110418), and adopting a Mitigation Monitoring and Reporting Plan; and
WHEREAS, all legal prerequisites to the adoption of this Ordinance have occurred.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF HESPERIA DOES ORDAIN AS FOLLOWS:
Section 1. The City Council hereby specifically finds that all of the facts set forth in this Ordinance are true and correct and the recitals are adopted herein by reference as if set forth in full.
Section 2. Based upon substantial evidence presented to the C ouncil, including written and oral staff reports, the C ouncil specifically finds that the proposed Development Agreement is consistent with the goals and objectives of the adopted General Plan as well as the Specific Plan.
Section 3 . Based on adoption of Resolution 20 22-37, the E nvironmental Findings, Statement of Overriding Considerations, Mitigation Monitoring and Reporting have been adopted and the Final Environmental Impact Report (SCH #2019110418) has been certified pursuant to the California Environmental Quality Act (CEQA) for this project.
Section 4. Based upon substantial evidence presented to this Council during the above- referenced May 17, 2022, hearing, including public testimony and written and oral staff reports, this C ouncil has determined that the Development Agreement is in the best interest of the City and desires to enter into an agreement with the Applicant as shown on Exhibit “A”.
Section 5. Based on the findings and conclusions set forth in this Ordinance, this Council hereby approves Development Agreement DA22-00001, as shown on Exhibit “A.”
Section 6. This Ordinance shall take effect thirty (30) days from the date of adoption.
Section 7. The City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be posted in three (3) public places within the City of Hesperia pursuant to the provisions of Resolution No. 2007-101.
Ordinance No. 2022-09
ADOPTED AND APPROVED on this 7th day of June 2022.
__________________________________ _______________________________ Brigit Bennington, Mayor
ATTEST:
_________________________________________
Melinda Sayre, City Clerk
01071.0005/782085.1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Hesperia
9700 Seventh Avenue
Hesperia, CA 92345
Attention: City Clerk
APNs: (Space Above For Recorder’s Use)
Exempt from Recording Fees pursuant to Government Code Section 27383
DEVELOPMENT AGREEMENT
(Hesperia Commerce Center II)
between
CITY OF HESPERIA,
a California general law city and municipal corporation and MAIN 395 INDUSTRIAL LLC AND MAIN HESPERIA LLC
Reference dated as of __________, 2022
Attachment 9
TABLE OF CONTENTS
Page
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01071.0005/782085.1
RECITALS ................................................................................................................................... 1
1. DEFINITIONS AND EXHIBITS ..................................................................................... 2
1.1 Definitions............................................................................................................. 2
1.2 Exhibits ................................................................................................................. 5
2. GENERAL PROVISIONS ............................................................................................... 6
2.1 Binding Effect of Agreement ................................................................................ 6
2.2 Term ...................................................................................................................... 6
2.3 Extension of Term................................................................................................. 6
2.4 Assignment and Transfer ...................................................................................... 6
2.5 Voluntary Amendment or Cancellation of Agreement ......................................... 8
2.6 Termination ........................................................................................................... 8
2.7 Representations and Warranties ............................................................................ 8
2.8 Notices .................................................................................................................. 9
3. DEVELOPMENT OF THE PROPERTY ....................................................................... 10
3.1 Vested Right to Develop ..................................................................................... 10
3.2 Effect of Agreement on Land Use Regulations; Development Exactions; Development Plan; Submittal of Subsequent Development Approvals ............................................................................................................ 10
3.3 Timing of Development; Public Improvements Phasing .................................... 11
3.4 Changes and Amendments to Existing or Subsequent Development Approvals ............................................................................................................ 11
3.5 Reservations of Authority ................................................................................... 11
3.6 Subsequent Development Approvals .................................................................. 12
3.7 Modification or Suspension by State or Federal Law ......................................... 13
3.8 Future Use of EIR ............................................................................................... 13
3.9 Third Party Permits and Approvals and Utilities ................................................ 13
4. PUBLIC BENEFITS ....................................................................................................... 13
4.1 Development Impact Fees................................................................................... 13
4.2 Credit for Construction ....................................................................................... 14
5. PUBLIC FINANCING ................................................................................................... 14
5.1 Financing............................................................................................................. 14
6. REVIEW FOR COMPLIANCE ..................................................................................... 14
6.1 Periodic Review .................................................................................................. 14
6.2 Procedure ............................................................................................................ 15
6.3 No Waiver ........................................................................................................... 15
6.4 Proceedings for Modification or Termination .................................................... 15
6.5 Hearing on Modification or Termination ............................................................ 16
6.6 Certificate of Agreement Compliance ................................................................ 16
Page
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01071.0005/782085.1
6.7 No Cross-Defaults ............................................................................................... 16
7. INTENTIONALLY OMITTED ..................................................................................... 16
8. DEFAULT AND REMEDIES ........................................................................................ 16
8.1 Remedies in General ........................................................................................... 16
8.2 Specific Performance .......................................................................................... 17
8.3 Release ................................................................................................................ 17
8.4 City’s Termination of Agreement or Exercise of Other Remedies Upon Developer’s Default ............................................................................................ 17
8.5 Developer’s Termination of Agreement or Exercise of Other Remedies Upon City’s Default ............................................................................................ 18
8.6 Informal Resolution ............................................................................................ 18
9. THIRD PARTY LITIGATION ...................................................................................... 18
9.1 Defense of Third Party Litigation ....................................................................... 18
9.2 Extension of Term............................................................................................... 18
10. MORTGAGEES ............................................................................................................. 19
10.1 Mortgagee Protection .......................................................................................... 19
11. INSURANCE; INDEMNIFICATION............................................................................ 19
11.1 Insurance ............................................................................................................. 19
11.2 Indemnification ................................................................................................... 21
12. MISCELLANEOUS PROVISIONS ............................................................................... 22
12.1 Recordation of Agreement .................................................................................. 22
12.2 Entire Agreement ................................................................................................ 22
12.3 Estoppel Certificates ........................................................................................... 22
12.4 Severability ......................................................................................................... 22
12.5 Interpretation and Governing Law ...................................................................... 23
12.6 Section Headings ................................................................................................ 23
12.7 Singular and Plural .............................................................................................. 23
12.8 Including ............................................................................................................. 23
12.9 Time of Essence .................................................................................................. 23
12.10 Calendar Periods ................................................................................................. 23
12.11 Waiver ................................................................................................................. 23
12.12 No Third Party Beneficiaries .............................................................................. 23
12.13 Permitted Delays ................................................................................................. 23
12.14 Successors in Interest .......................................................................................... 23
12.15 Counterparts ........................................................................................................ 24
12.16 Jurisdiction and Venue ........................................................................................ 24
12.17 Project as a Private Undertaking ......................................................................... 24
12.18 Further Actions and Instruments ......................................................................... 24
12.19 Eminent Domain ................................................................................................. 24
12.20 Attorneys’ Fees ................................................................................................... 24
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01071.0005/782085.1
12.21 Authority to Execute ........................................................................................... 24
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01071.0005/782085.1
DEVELOPMENT AGREEMENT
(Hesperia Commerce Center II)
This Development Agreement (Hesperia Commerce Center II) ( “Agreement”) is entered into between the CITY OF HESPERIA, a California general law city and municipal corporation (“City”); and Main 395 Industrial LLC and Main Hesperia LLC (“Developer”). This Agreement is dated as of _____________, 2022 for reference only. This Agreement will not become effective until the “Effective Date” (defined below). City and Developer are entering into this Agreement in reliance on the facts set forth in the Recitals, below.
RECITALS
A. City is authorized under Government Code Section 65864, et seq. (“Development Agreement Law”) to enter into binding development agreements with persons having legal or equitable interests in real property for the development of that property.
B. Developer owns or has an equitable interest in real property consisting of the approximately one hundred ninety-four and eight tenths (194.8) gross acres of land ( “Property”) described on the attached Exhibit A and depicted on the attached Exhibit B (“Site Plan”).
C. Developer applied to City for approval and enactment of this Agreement as the primary governing instrument for the development and use of the Property. The City Planning Commission ( “Planning Commission ”) and the City Council ( “City Council”) have conducted public hearings and have found that this Agreement is consistent with City ’s General Plan (“General Plan”), including the General Plan Land Use Element.
D. On _____________, 202 2, the City Council adopted Ordinance No. ____-__ (“Enacting Ordinance”), which approved this Agreement.
E. By adopting the Enacting Ordinance, the City Council elected to exercise its governmental powers with regard to the Development of the Property at the present time rather than later. This Agreement binds City and future City Councils and limits the City Council’s future exercise of its police powers. This Agreement has been found by the City Council to be fair, just and reasonable and in the best interests of City’s citizens and the health, safety and welfare of the public.
F. City has complied with all California Environmental Quality Act (California Public Resources Code Section 21000, et seq.) (“CEQA”) requirements with respect to the approval of this Agreement and of the Project, through the City Council’s approval and certification of the “Hesperia Commerce Center II Environmental Impact Report (SCH 2019110418)” (“EIR”).
G. Developer proposes to subdivide and develop the Property with three (3) industrial/warehouse buildings and has obtained City’s approval of the following Development Approvals: Conditional Use Permit (CUP 19-00010); and Tentative Parcel Map (TPM 20257).
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01071.0005/782085.1
H. All of City’s prior actions and approvals with regard to this Agreement complied with all applicable legal requirements related to notice, public hearings, findings, votes, and other procedural matters.
I. The development of the Property in accordance with this Agreement will provide substantial benefits to City. This Agreement eliminates uncertainty in planning and provides for the orderly development of the Property, ensures the progressive installation of necessary public improvements to serve the Project, and serves the purposes of the Development Agreement Law.
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. The following initially capitalized terms used in this Agreement have the following meanings:
“Agreement” means this Development Agreement and all attachments and exhibits thereto. “Annual Monitoring Report” has the meaning ascribed to the term in Section 6.1. “Backbone Infrastructure ” means the central network system for streets, wet and dry utilities and drainage within the Project, as specifically shown in the Development Plan. “CEQA” has the meaning ascribed to the term in Recital F. “Certificate of Agreement C ompliance” or “Certificate” has the meaning ascribed to the term in Section 6.6.
“Certificate of Occupancy ” means a document issued by City ’s Building Department, certifying a building’s compliance with applicable building codes and other laws, and indicat ing it to be in a condition suitable for occupancy.
“City” means the City of Hesperia, a California general law city and municipal corporation, its successors and assigns, and its related or subordinate boards, commissions, and entities. “City Council” means the City Council of the City of Hesperia. “Construct and Dedicate ” means the obligation to acquire all necessary real property interests required for, to construct in accordance with City-approved plans and specifications, and to thereafter dedicate to City in accordance with City ’s standards, practices and requirements for the dedication of public improvements, the applicable public improvement to which the term “Construct and Dedicate” is made applicable by this Agreement, all at no cost or expense to City.
Developer’s obligation to Construct and Dedicate will be fulfilled only upon City’s inspection and acceptance of the dedicated improvement into City’s system of public improvements. “Developer” means Main 395 Industrial LLC and Main Hesperia LLC and their successors and assigns.
“Development” means the subdivision and improvement of the Property for the purposes of constructing or reconstructing the public and private structures, improvements and facilities
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01071.0005/782085.1
comprising the Project, including, but not limited to: grading; the construction or reconstruc tion of infrastructure and public and private facilities related to the Project, whether located within or outside the Property; the construction or reconstruction of buildings and structures; and, the installation of landscaping. “Development” does not i nclude the maintenance of any building, structure, improvement or facility after its construction and completion. “Development Agreement Law” has the meaning ascribed to the term in Recital A. “Development Approvals” mean all site -specific (meaning specifi cally applicable to the Property only and not generally applicable to some or all other properties within the City) plans, maps, approvals, permits and other entitlements applicable to the Development of the Property, including, but not limited to: specifi c plans and specific plan amendments; tentative and final subdivision and parcel maps; conditional use permits, public use permits and site plans; zoning; variances; and, grading and building permits. The term Development Approvals does not include (i) rules, regulations, policies, and other enactments of general application within the City authorized to be applicable to the Property pursuant to this Agreement, or (ii) any matter where City has reserved authority under this Agreement.
“Development Exaction s” mean any monetary or non -monetary exaction or mitigation measure, including a Development Impact Fee, imposed by City in connection with a Development Approval or in connection with the granting of any other right, privilege or approval pertaining to the Project, including requirements for land dedication or for public construction either within or outside the Property.
“Development Impact Fee” means a monetary payment authorized by Government Code Section 66001, et seq., whether imposed legislatively on a broad class of development projects or on an ad hoc basis to a specific development project.
“Development Plan” means the proposed plan for Development of all or a portion of the Property pursuant to the Existing Development Approvals and Subsequent Dev elopment Approvals, in accord with the Existing Land Use Regulations and applicable Subsequent Land Use Regulations, subject to the Reservations of Authority.
“Effective Date” means the date which is thirty (30) days following the second reading and adoption of the Enacting Ordinance.
“EIR” has the meaning ascribed to the term in Recital F. “Enacting Ordinance” has the meaning ascribed to the term in Recital D. “Existing Development Approvals” mean all Development Approvals approved or issued by City prior to or the same day as the second reading and adoption of the Enacting Ordinance, including the Development Approvals described in Recital G. “Existing Development Approvals” do not include the EIR.
“Existing Land Use Regulations” mean all Land Use Regulations in effect as of the second reading and adoption of the Enacting Ordinance.
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“General Plan” has the meaning ascribed to the term in Recital C. “Land Use Regulations ” mean all ordinances, re solutions, codes, rules, regulations and official written policies of the City and/or any subsidiary district of the City and/or any joint powers authority or council of governments of which the City is a member which affect, govern, or apply to land development and use of the Property, including those governing: the permitted use of land; the density or intensity of use; subdivision requirements; the maximum height and size of proposed buildings; development impact fees; design, improvement and constructio n standards applicable to the Development of the Property; and the reservation or dedication of land for public purposes, all as may be modified or supplemented pursuant to this Agreement. “Land Use Regulations” do not include any ordinance, resolution, c ode, rule, regulation or official policy governing: the conduct of businesses, professions, and occupations; taxes and assessments; the granting of encroachment permits and the conveyance of rights and interests that provide for the use of or the entry upon public property; or the exercise of the power of eminent domain. “Lot” means any legally subdivided lot of the Property which is intended for commercial or industrial uses.
“Minor Amendment” has the meaning ascribed to the term in Section 3.4.A. “Mitigation Monitoring and Reporting Program ” or “MMRP” means the mitigation monitoring and reporting program for assessing and ensuring compliance with required mitigation measures, which was approved by City Resolution No. ____-__, on ___________, 202 2 in conjunction with the City Council’s certification of the EIR. “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust, or any other security-device lender, and their successors and assigns. “Notice” has the meaning ascribed to the term in Section 2.8.A. “Parties” mean City and Developer, collectively.
“Party” means either City or Developer, individually.
“Permitted Delay” means delays in a Party’s performance due to: changes in local, state or federal laws or regulations (other than changes expressly permitted by this Development Agreement); strikes or the inability to obtain materials; delays caused by governmental agencies in issuing permits and approvals; a development moratorium (including, but not limited to, a water or sewer mor atorium) or the actions of other public agencies to prohibit Development of the Property; civil commotion, fire, acts of God, war, lockouts, riots, floods, earthquakes, epidemic, quarantine, freight embargoes, and/or failure of contractors to perform; any third-party court action to set aside or modify the Existing Development Approvals; or, other circumstances beyond a Party’s reasonable control and which substantially interfere with either Party ’s ability to perform its obligations under this Agreement. “Permitted Delays” do not include delays attributable to Developer’s inability to obtain funds or financing or due to changes in market conditions or demands, whether or not foreseeable as of the Effective Date.
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The period of a “Permitted Delay” will not commence to run until the date of the Notice by which the Party alleging the Permitted Delay informs the other Party of the existence of the Permitted Delay and the circumstances giving rise to it. The period of the Permitted Delay will end when the circumstances giving rise to the Permitted Delay are eliminated or mitigated. The Party alleging the Permitted Delay will exercise commercially reasonable efforts to eliminate or mitigate the circumstances giving rise to the Permitted Delay. “Person” means and refers to any association, corporation, governmental entity or agency, individual, joint venture, joint -stock company, limited liability company, partnership, trust, unincorporated organization, or other entity of any kind, including City and Developer. “Planning Commission” has the meaning ascribed to the term in Recital C. “Project” means the Development of the Property in accord with the Development Plan, as the Development Plan may be further defined, enhanced or modified in accordance with this Agreement.
“Property” means the real property described on Exhibit A and depicted on Exhibit B. “Reservations of Authority” mean the rights reserved to City under Section 3.5. “Site Plan” has the meaning ascribed to the term in Recital B. “Special District” has the meaning ascribed to the term in Section 5.1. “Subsequent Development Approvals” mean all Development Approvals approved by City subsequent to the Effective Date.
“Subsequent Land Use Regulations” mean all Land Use Regulations adopted and effective after the Effective Date.
“Term” has the meaning ascribed to the term in Section 2.2. and includes any extension authorized by Section 2.3.
“Transfer” has the meaning ascribed to the term in Section 2.4.A. “Transferee” has the meaning ascribed to the term in Section 2.4.A. “Transferor” has the meaning ascribed to the term in Section 2.4.A.
Other initially capitalized terms used in this Agreement but not otherwise set forth in Paragraph A, above, will have the meaning given to those terms where they first appear in this Agreement.
1.2 Exhibits. The following documents are attached to a part of this Agreement:
Exhibit A Legal Description of Property
Exhibit B Site Plan
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Exhibit C Benefitted Areas
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. The Property is made subject to this Agreement and the Development of the Property may be carried out in accordance with this Agreement. The benefits and burdens of th is Agreement touch and concern the Property and bind Developer and all future owners of all or any portion of the Property.
2.2 Term. The term (“Term”) of this Agreement will commence on the Effective Date and will expire on the twelfth (12th) anniversary of the Effective Date, unless terminated sooner by operation of some other provision of this Agreement or extended in accord with Section 2.3 or Section 9.2.
2.3 Extension of Term.
Upon Developer’s request made by Notice given no earlier than six (6) months, but no later than two (2) months, prior to expiration of the original Term, the Term of this Agreement will be extended for one (1) additional eight (8) year period beyond the original Term, so long as:
a. Developer is not, as of the giving of the Notice, in material uncured breach of this Agreement and is not in the process of curing said breach, as determined by City following a special review pursuant to Article 6, so long as City undertakes the special review on its own initiative and completes the special rev iew no later than six (6) months prior to expiration of the original Term; and,
i. Commencement of Construction has occurred on no less than fifty percent (50%) of the total enclosed square footage authorized by the Development Plan, as it may be modified by one (1) or more Subsequent Development Approvals. “Commencement of Construction” means the pouring and certification of building foundations.
Upon extension of the Term in accord with this Section 2.3, City will execute, in recordable form, any instrument which Developer may reasonably require to evidence the extension.
2.4 Assignment and Transfer.
a. Developer may sell, lease, license, hypothecate, transfer, or assign (any or all of the foregoing, individually and collectively, “Transfer”) the Property in whole or in part (provided that no partial Transfer may violate the Subdivision Map Act, Governmen t Code Section 66410, et seq .) to any Person at any time; provided that those Transfers described in Section 2.4.E will be subject to City ’s reasonable review and approval in accord with the procedures described in Section 2.4.E. As used in this Agreement , the term “Transferor” means the Person (including Developer) making the Transfer and the term “Transferee” means the Transfer recipient. No Transfer of any right or interest in this Agreement may be made unless made together with the Transfer of all or a part of the Property. b. Any voluntary subsequent Transfer after an initial Transfer may be made only in accordance with this Section 2.4.
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c. Upon a Transferor’s Transfer of the entirety of the Property (or the entirety of so much of the Property as then-owned by the Transferor), the Transferor will also assign to the Transferee all obligations arising under this Agreement which, as of the date of the Transfer, had not been previously assigned or satisfied, including obligations related to the Backbone Infrastructure. Concurrently with the Transfer, the Transferor will be fully and unconditionally released and dis charged from all obligations assigned to the Transferee, including assigned obligations related to the Backbone Infrastructure. Subject to force majeure and other approved delays, the Backbone Infrastructure shall be completed within three (3) years of the Effective Date of this Agreement.
d. Upon a Transferor’s Transfer of less than the entirety of the Property (or the entirety of so much of the Property as then -owned by the Transferor), such as if the Transferor Transfers individual parcels to end users, the Transferor may, but is not obligated to, assign to the Transferee some or all of the obligations arising under this Agreement attributable to the portion of the Property being Transferred and which, as of the date of the Transfer, had not been previously assigned or satisfied, including obligations related to the Backbone Infrastructure. Concurrently with the Transfer and City ’s approval of an assignment and assumption agreement if required under Section 2.4.E, the Transferor will be fully and unconditionally released and discharged from all obligations assigned to the Transferee, including assigned obligations related to the Backbone Infrastructure.
e. With respect to Transfers:
i. City may review and approve any Transfer which includes an assignment of the obligation to complete all or some portion of the Backbone Infrastructure. City’s approval may not be unreasonably withheld or delayed and must be based on the proposed Transferee’s financial capability and qualifications to complete the obligations assign ed to the Transferee. City’s approval or disapproval must be by Notice and must be given within forty-five (45) days after the Transferor submits Notice to City describing the proposed Transfer and the Transferee, which Notice must include reasonable documentation demonstrating the Transferee’s financial capability and qualifications to complete the obligations assigned to the Transferee and a copy of an assignment and assumption agreement executed by the Transferee by which the Transferee expressly and unconditionally assumes those obligations (if any) under this Agreement assigned to the Transferee to complete all or some portion of the Backbone Infrastructure in accord with Section 2.4.C or Section 2.4.D, as applicable. Any disapproval must state the re asons for disapproval with reasonable specificity. If City fails to provide Notice within the forty -five (45) day period, then City ’s approval will be deemed to be irrevocably given and the Transferor and the Transferee may rely on City ’s deemed approval. If City holds security given by the Transferor with respect to any obligations assigned to the Transferee, then the Transferee must provide City with replacement security reasonably acceptable to City. f. City will execute (in recordable form, if necessa ry) and deliver those releases, consents, and other instruments as may be requested by a Transferor, a Transferee, or any Mortgagee to evidence the assignments and releases described in this Section 2.4.
2.5 Voluntary Amendment or Cancellation of Agreement . T his Agreement may be voluntarily amended or cancelled in whole or in part only with the written consent of City and all
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Persons holding fee title to that portion of the Property to which the amendment or cancellation will apply. The amendment or cancellat ion process must comply with Government Code Section 65868. This Section 2.5 does not limit the operation of Government Code Section 65869.5.
2.6 Termination. This Agreement will automatically terminate upon the occurrence of any of the following events:
a. The expiration of the Term.
b. The entry of a final judgment setting aside, voiding or annulling the City Council’s adoption of the Enacting Ordinance.
c. The adoption of a referendum measure overriding or repealing the Enacting Ordinance.
d. The completion of the Project, as evidenced by the issuance of all required Certificates of Occupancy and the acceptance of all required public dedications.
e. Upon a Party ’s election to terminate this Agreement under Section 8.4 and Section 8.5. If the terminating Party under Section 8.5 does not own the entirety of the Property, then the termination will apply only to that portion of the Property owned by the terminating Party.
2.7 Representations and Warranties.
a. City represents and warrants to Developer, as follows:
i. City is a public body, corporate and politic. City is authorized to enter into this Agreement pursuant to Government Code Section 65864, et seq., and the execution and delivery of this Agreement by City has been fully authorized by all requisite actions on t he part of City.
ii. City’s execution and delivery of this Agreement and City ’s performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which City is a party or by which it is bound. iii. City has not received any notice of, or knows of any basis for, any actual or pending litigation or proceeding by any Person against City with respect to the Property or this Agreement.
b. Developer represents and warrants to City, as follows:
i. Developer is a duly organized corporation established within and in good standing under the laws of the State of California and is authorized to do business in the State of California. The execution and delivery of this Agreement by Developer has been fully authorized by all requisite actions on the part of Developer.
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ii. Developer is either the owner of fee simple title to the Property or has an equitable interest in the Property.
iii. Developer’s execution and delivery of this Agreement and Developer’s performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Developer is a party or by which it is bound.
iv. Developer is not the subject of bankruptcy or receivership proceedings and is not insolvent.
v. Developer has not received any notice of, or knows of any basis for, any actual or pending litigation or proceeding by any Person against Developer with respect to the Property or this Agreement.
2.8 Notices.
a. As used in this Agreement, the term “Notice” means any request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other required or permitted communication.
b. All Notices must be in writing and will be considered given:
i. When delivered in person to the recipient named below. ii. On the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope, postage prepaid, as either registered or certified mail, return receipt requested.
iii. On the date of delivery shown in the records of a reputable delivery service (e.g. UPS or Federal Express).
c. All Notices must be addressed as follows:
If to City:
City of Hesperia
9700 Seventh Avenue
Hesperia, CA 92345-3493
Attn: City Manager
If to Developer:
Main 395 Industrial LLC and Main
Hesperia LLC.
14180 Dallas Parkway, Suite 730
Dallas, TX 75254
Attn: Mark Milakovich
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with a copy to:
Aleshire & Wynder, LLP
18881 Von Karman Avenue, Suite
1700
Irvine, CA 92612
Attn: Eric L. Dunn
with a copy to:
Rutan & Tucker, LLP
18575 Jamboree Road, Suite 900
Irvine, CA 92612
Attn: John A. Ramirez
d. Either Party may, by Notice given at any time, require subsequent Notices to be given to another Person or to a different address, or both. Notices given before receipt of Notice of change of address will not be invalidated by the change. e. Transferees will be entitled to Notices sent by City which pertain to that portion of the Property owned by the Transferee only if the Transferee has complied with Section 2.4.D.
3. DEVELOPMENT OF THE PROPERTY.
3.1 Vested Right to Develop . Subject to the terms of this Agreement, Developer has the legally vested right to develop the Property in accordance with, and to extent of, the Development Plan, the Development Approvals, applicable Subsequent Development Approvals, applicable Subsequent Land Use Regulations, and this Agreement.
3.2 Effect of Agreement on Land Use Regulations; Development Exactions; Development Plan; Submittal of Subsequent Development Approvals. a. Except as otherwise provided under the terms of this Agreement, including the Reservations of Authority, the rules, regulations, and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to the Development of the Property shall be the Existing Land Use Regulations. In connection with any Subsequent Development Approval, City will exercise its discre tion in accordance with the Development Plan and this Agreement, including, but not limited to, the Reservations of Authority.
b. The Development Plan for the Project may require the processing of Subsequent Development Approvals. The City will accept for pr ocessing, review and action all applications for Subsequent Development Approvals, and such applications will be processed in the normal manner for processing such matters in accordance with the Existing Land Use Regulations. The Parties acknowledge that City is not obligated in any manner to approve any Subsequent Development Approval, or to approve any Subsequent Development Approval with or without any particular condition, except that City ’s actions concerning Subsequent Development Approvals must be c onsistent with the Development Plan and Existing Land Use Regulations, subject to the Reservations of Authority. Unless otherwise requested by Developer, City may not amend or rescind any Subsequent Development Approvals applicable to the Property after those Approvals have been granted by the City. Processing of Subsequent Development Approvals or changes in the Development Approvals or Development Plan made pursuant to Developer’s application will not require an amendment to this Agreement; however, upo n their
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approval by the City, all Subsequent Development Approvals or changes in the Development Approvals or Development Plan will be subject to and covered by this Agreement.
3.3 Timing of Development; Public Improvements Phasing. a. Nothing in this Agreement is a covenant to develop or construct the Project.
The Parties acknowledge that Developer cannot predict if, when, or the rate at which phases of the Project will be developed. The California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, that the failure of the litigants in that case to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over the litigants ’ agreement. The Parties intend to cure that deficiency by providing that Developer has the right to develop the Project, or not development the project, in the order, at the rate, and at the times that Developer, in its sole and absolute discretion, determines to be appropriate, subject only to any Development Plan timing or phasing requirements. b. Required public improvements may be tied to certain phases of the Project.
The schedule for provision of these improvements, as they relate to a particular phase, will be governed by the Existing Development Approvals, Subsequent Development Approvals, the EIR, the MMRP, and this Agreement. Subject to force maje ure and other approved delays, the Backbone Infrastructure shall be completed within three (3) years of the Effective Date of this Agreement. If the City intends on permitting and developing a regional storm drainage solution, and the system has the c apacity to serve the Project, City will allow the Project to utilize such system in lieu of an on-site detention system.
3.4 Changes and Amendments to Existing or Subsequent Development Approvals. a. The Parties acknowledge that the passage of time may demonstrate t hat changes to the Existing or Subsequent Development Approvals may be necessary or appropriate.
If the Parties determine that changes are necessary or appropriate, such changes may be made by mutual consent of the Parties in accord with Government Code S ection 65868, and may be approved on behalf of City as follows:
i. By the City Manager or designee ( “City Manager”) in the case of minor changes which would qualify as a “Minor Amendment ” under Municipal Code Section 16.12.130 or 405, as determined by the Cit y Attorney, and in any other case where the City Manager is authorized by this Agreement to act.
ii. By the City Council in the case of any other changes not subject to paragraph (1), above, or if otherwise legally required. iii. The City Manager and City Attorney will determine whether a proposed change is subject to approval by the City Manager or the City Council, as the case may be. The City Manager and City Attorney may also authorize the execution of an operating memorandum to effectuate minor clarifications and changes to this Agreement or the Existing Approvals. Such operating memorandum shall not require City Council approval.
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iv. No modification, amendment or other change to this Agreement will be effective for any purpose unless specifically set forth in a writing that refers expressly to this Agreement and is signed by both Parties’ authorized representatives.
3.5 Reservations of Authority.
a. Any contrary provision in this Agreement notwithstanding, the following Subsequent Land Use Regulations will apply to the Project:
i. Processing fees and charges of every kind and nature imposed by City to cover the estimated actual costs to City of processing applications for Subsequent Development Approvals or for monitoring compliance with any Subsequent Development Approvals granted or issued.
ii. Regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other procedural matter.
iii. Regulations governing construction standards and specifications, including City’s Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Grading Code, including fees thereunder, which are applied uniformly to all similar development projects within in City.
iv. Regulations which do not conflict with the Development Plan or this Agreement. To the greatest extent possible, these regulations must be applied and construed to provide Developer with all of the rights and assurances provided under this Agreement. For all purposes pursuant to this Agreement g enerally, and this paragraph (4) specifically, an ordinance, resolution, initiative, referendum, moratorium or other regulation will be deemed to conflict with the Development Plan and this Agreement if the ordinance, resolution, initiative, referendum, or regulation seeks to, whether as part of a specific or general enactment that applies to the Property or Project: (i) limit or reduce the density, intensity, height or size of structures or type of development on the Property; (ii) regulate the timing or sequencing of the development of the Property in any manner; (iii) require any additional on-site or off-site improvements not required by the applicable Land Use Regulations or Development Approvals to be constructed or paid for by Developer or a subsequent owner of the Property; or (iv) restricting the use of the Property in any manner or degree other than as set forth in the applicable Land Use Regulations and Development Approvals.
v. Regulations that conflict with the Development Plan if Developer has given its written consent to those regulations.
vi. Federal, State, County, and multi-jurisdictional laws and regulations which City is required to enforce against the Property or the Development of the Property. vii. Subsequent Land Use Regulations applicable to loca l or regional Development Impact Fees.
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The Parties acknowledge that City is restricted in its authority to limit its police powers by contract.
This Agreement will be construed, contrary to its stated terms if necessary, to reserve to City all those police powers that cannot be restricted by contract.
3.6 Subsequent Development Approvals.
a. When acting on Subsequent Development Approvals, City may apply only the Existing Land Use Regulations and those Subsequent Land Use Regulations that are permitted under the Reservations of Authority. Any Subsequent Development Approval will be automatically vested under this Agreement.
b. Upon Developer ’s request, City will accept and diligently process applications for Subsequent Development Approvals. City will exercise reas onable good faith efforts to expedite the processing of the Subsequent Development Approvals applications to ensure that those applications are promptly considered by the approving authority. City will ensure that all applications are processed and considered within the timing requirements of all applicable law, including the Permit Streamlining Act (Govt. Code § 65920, et seq.).
3.7 Modification or Suspension by State or Federal Law . If a State or Federal law or regulation which is enacted after the Effectiv e Date prevents the Parties’ compliance with any of this Agreement’s provisions, then that provision will be modified or suspended to the extent and for the time necessary to achieve compliance with the conflicting State or Federal law. This Agreement’s r emaining provisions will continue unaffected. The Parties will amend this Agreement to preserve, to the greatest extent possible, the benefits that would arise to the Parties under this Agreement but for the conflicting State or Federal law. Upon the rep eal of the conflicting State or Federal law or upon the occurrence of any circumstance that removes their effect upon this Agreement, this Agreement ’s provisions will be automatically restored to their full original form and any amendment that the Parties may have entered into under this Section 3.7 will terminate.
3.8 Future Use of EIR. The Parties understand that the EIR is intended to be used in connection with each of the Existing Development Approvals and Subsequent Development Approvals needed for the Project. City agrees to use the EIR in connection with the processing of any Subsequent Development Approval, except as may be otherwise required by the Reservations of Authority or state or federal law, including CEQA.
3.9 Third Party Permits and Approvals and Utilities.
a. The Parties acknowledge that this Agreement does not bind any governmental agency other than City and its related or subordinate boards, commissions, and entities. City will use reasonable good faith efforts to assist Developer in obtaining all permits and approvals, at no cost to City, which are necessary for the Project, including permits, approvals and rights of way which are required for the installation of public improvements, driveways and utility connections, and utility services such as electrical, gas, water, sewer, storm drain, telephone and cable television.
b. The Parties acknowledge that, in connection with the installation of utility facilities which will be owned by private utility companies, it may lower the overall cost of the
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utility installation for it to be constructed by City. Upon Developer ’s request, City agrees to reasonably consider undertaking construction of the private utility company project, so long as Developer bears City’s entire direct and indirect cost of the same.
4. PUBLIC BENEFITS.
4.1 Development Impact Fees.
a. City has adopted a Development Impact Fee program designed to offset the costs of mitigating environmental and other impacts caused by development upon public facilities and improvements. The Development Impact Fees which will be applicable to the Project shall be those existing at the time of development. Development Impact Fees shall be paid at such time as payment of such fees are due and payable in accordance with the Land Use Regulations in effect at the time of development as set forth in City fee ordinances or resolutions or policies, for the portion of the Property to which such fees apply. This Section shall not preclude City from adopting any new development impact fees in the future applicable to the Property or to other Development in the City.
b. Paragraph a, above, notwithstanding, City is commencing a review of its Development Impact Fee program to include separate components for commercial, residential, and different types of indus trial projects. As a public benefit, Developer shall make a one -time payment of five hundred thousand dollars ($500,000.00) to the City within 30 (thirty) days of the issuance of the first grading permit for the Project.
c. Nothing in this Section 4.1 will limit the right of any other local, regional, state, or federal agency or district to impose upon the Project otherwise lawful fees, including non- City fees imposed by such agencies or districts and collected by City for the benefit of such agencies or district.
4.2 Credit for Construction . The Parties acknowledge and agree that in accordance with policies adopted from time to time by City, Developer may be entitled to a credit and/or reimbursement to offset Developer ’s Development Impact Fee obligatio n, as d etermined by the city. Developer acknowledges that only the off-site water and sewer improvements that are beyond the limits of the Project frontage will be eligible for credit/reimbursement. The portion of the water and sewer improvements along the frontage of Phelan Road is not eligible. Further, the new public street (Caliente Road) and improvements to Yucca Terrace Drive are not eligible.
4.3 Fair Share Reimbursement for Offsite Improvements . The Parties acknowledge and agree that the Development Approvals require Developer to construct offsite public improvements (“Project Offsite Public Improvements”) that exceed Developer’s fair share obligation and that will benefit future third party developers. Project Offsite Public Improvements consist of water, sewer and street facilities to the Benefitted Area. City shall endeavor to impose a condition of approval on any and all future developments that benefit from the Project Offsite Public Improvements (“Benefited Development”) that requir es the developer of the Benefited Development to enter into a reimbursement agreement with Developer to pay their fair share of the Project Offsite Public Improvements to Developer (“Fair Share Obligation”). The Benefited Area is shown in Exhibit C. The reimbursement agreement shall require t he developer of the
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Benefited Development to pay its Fair Share Obligation directly to Developer prior to the issuance of the grading permit, or as otherwise agreed upon between Developer and the developer of the Benefited Development. City’s obligation under this Section 4.3 shall expire ten (10) years following the Effective Date.
5. PUBLIC FINANCING.
5.1 Financing. Upon either Party’s written request, the Parties will meet and confer in good faith for the purposes of dis cussing the formation of a financing mechanism, including but not limited to a special assessment district, community facilities district, or alternate financing mechanism (collectively, a “Special District”) to pay for the construction or maintenance of those public improvements required by the Development Plan. If a Special District is formed, Developer will be reimbursed from the proceeds of any debt financing issued by the Special District to the extent that Developer spends funds for the construction and/or maintenance and operation of qualified public improvements , as determined by City . Tax rates or assessments of the Special District may not exceed City’s then-current policies regarding public financing districts.
This Section 5.1 is not a commitment by City to adopt a resolution of formation to form a Special District or to approve Special District debt financing. Developer acknowledges that the adoption and approval of a resolution of formation is a legislative act within City’s unencumbered discretion. However, if City proceeds to approve a Special District, then Developer shall annex into the Special District upon the creation of the Special District.
6. REVIEW FOR COMPLIANCE.
6.1 Periodic Review.
a. The City Manager will review this Agreement annuall y, on or before each anniversary of the Effective Date, as required by California Government Code Section 65865.1.
The purpose of the review will be to ascertain Developer ’s good faith compliance with the terms of this Agreement. Developer will submit an annual monitoring report ( “Annual Monitoring Report”), in a form prepared and approved by the City Manager within thirty (30) days after the City Manager’s written request. The Annual Monitoring Report must be accompanied by the then- current annual review and administration fee set by the City Council, which may not exceed the City’s actual costs of reviewing Developer’s compliance with the terms of this Agreement. b. The City Council may order a special review of Developer ’s compliance with this Agreement at any time. The City Manager will conduct the special review, which will be conducted at City’s sole expense.
6.2 Procedure.
a. During either a periodic review or a special review, Developer will be required to demonstrate good faith compliance with this Agreement. b. Upon completion of a periodic review or a special review, the City Manager will submit a report to the City Council setting forth the City Manager ’s conclusions concerning Developer’s good faith compliance with this Agreement.
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c. If the City Council finds that Developer has complied in good faith with this Agreement, then the review will be concluded.
d. If the City Council makes a preliminary finding that Developer has not complied in good faith with this Agreement, then, following Notice and oppo rtunity to cure as provided under Section 8.4, the City Council may modify or terminate this Agreement in accordance with Section 6.4 and Section 6.5.
6.3 No Waiver. Failure of City to conduct an annual review will not constitute a waiver by City of its rights to otherwise enforce the provisions of this Agreement nor will Developer have or assert any defense to such enforcement by reason of any such failure to conduct any annual review(s).
6.4 Proceedings for Modification or Termination.
a. If Developer fails to cure, or to commence to cure, as applicable, the matters constituting the basis for the City Council ’s preliminary finding under Section 6.2.D as required by Section 8.4, then City may proceed to modify or terminate this Agreement following the procedures set forth in this Section 6.4 and in Section 6.5. City must hold a noticed public hearing concerning the modification or termination and provide Developer with Notice of the hearing. The Notice must include the following:
i. The time and the place of hearing, which must be no less than thirty (30) days following the date of the Notice;
ii. The specific action, whether amendment or termination, which City proposes to take; and
iii. Such other information as is reasonably necessary to inform Developer of the nature of the proceeding and the facts supporting City’s preliminary finding under Section 6.2.D.
6.5 Hearing on Modification or Termination . At the time and place set for the public hearing described in Section 6.4, Developer must be given an opportunity to be heard and present witnesses and evidence on its behalf. If, following the conclusion of the public hearing, the City Council finds, based upon substantial evidence in the record of the public hearing, that Developer has not complied in good faith with this Agreement, then the City Council may terminate or modify this Agreement and impose any conditions it determines as are reasonably necessary to protect City’s interests. The City Council’s decision will be administratively final and subject to judicial review under Code of Civil Procedure Section 1094.5.
6.6 Certificate of Agreement Compliance. If, at the conclusion of a special or periodic review, Developer is found to be in compliance with this Agreement, then, upon Developer ’s written request, City will issue a “Certificate of Agreement Compliance ” (“Certificate”) to Developer stating that, after the most recent periodic or special review, this Agreement remains in effect and Developer is not in default of this Agreement. The Certificate must be in recordable form, contain information necessary to communicate constructive record notice of the finding of compliance, state whether the Certificate is issued after a periodic or special review, and state the
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anticipated date of the next periodic review. Developer may record the Certificate with the San Bernardino County Recorder.
6.7 No Cross-Defaults. City acknowledges that Developer may Transfer all or portions of the Property to other Persons in accordance with Section 2.4. City f urther acknowledges that title to all or portions of the Property may become vested in Mortgagees or a Mortgagee’s successor as a result of foreclosure, or the acceptance of a deed in lieu of foreclosure, by a Mortgagee. City agrees that defaults under th is Agreement by an owner of a portion of the Property will not be a default as to any other portion of the Property. In other words, a default by Developer with respect to its obligations pertaining to that portion of the Property retained by Developer fo llowing a Transfer will not constitute a default as to any Person other than Developer or permit City to exercise any remedy under this Agreement or otherwise with respect to any other portion of the Property other than that portion owned by Developer. Si milarly, a default by a Transferee with respect to its obligations pertaining to the portion of the Property owned by that Transferee will not constitute Developer’s default or permit City to exercise any remedy under this Agreement or otherwise as to any portion of the Property other than the portion owned by the defaulting Transferee. City agrees that, if more than one Person holds title to the Property, then the rights and obligations of the Persons holding title to the Property are the distinct and several obligations of each Person.
7. INTENTIONALLY OMITTED.
8. DEFAULT AND REMEDIES.
8.1 Remedies in General.
a. The Parties acknowledge that neither Party would have entered into this Agreement if it were to be liable for monetary damages under this Agreement. In gene ral, and subject to those procedural prerequisites required under the Development Agreement Law or this Agreement, each of the Parties may pursue any remedy at law or equity available for the breach of this Agreement, except that neither Party will be liable in monetary damages (other than attorneys’ fees under Section 12.20) to the other Party, or to any successor in interest of that Party, or to any other Person. Each Party covenants not to sue for monetary damages or claim any monetary damages related to any of the following:
i. Any breach of this Agreement or for any cause of action that arises out of this Agreement; or
ii. Any taking, impairment or restriction of any right or interest arising under this Agreement; or
iii. Any dispute regarding the application or interpretation of this Agreement.
8.2 Specific Performance.
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a. The Parties acknowledge that specific performance and other non-monetary relief are particularly appropriate remedies for the enforcement of this Agreement for the following reasons:
i. Money damages are unavailable against the Parties.
ii. Due to the size, nature and scope of the Project, it may not be practical or possible to restore the Property to its natural condition once Developer has begun to implement this Agreement. After such time, Developer may be precluded from other options it may have had with regard to the Property. Moreover, Developer has invested significant time and resources in the planning and processing of the Project. Developer will be investing even more time and resources in implemen ting the Project in reliance upon this Agreement and it is not possible to determine the sum of money that would adequately compensate Developer if City were to breach its obligations.
8.3 Release. Except for the right to recover attorneys ’ fees under Section 12.20, Developer, for itself, its successors and assignees, releases City, its officials, officers, agents and employees from any and all monetary claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, any claim or liability based upon Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance that seeks to impose any monetary liability whatsoever u pon City because it entered into this Agreement or because of the terms of this Agreement.
8.4 City’s Termination of Agreement or Exercise of Other Remedies Upon Developer’s Default. Subject to compliance with Sections 6.4 and 6.5, City may terminate or modify this Agreement upon Developer ’s failure to perform any material duty or obligation under this Agreement. City may terminate or modify this Agreement or exercise its other remedies only after providing Notice of default to Developer setting forth th e nature of the default and the actions, if any, required to cure the default and only if Developer has failed to take the actions and materially cure the default within sixty (60) days after its receipt of the Notice. If a default is of a type that cannot be cured within sixty (60) days but can be cured within a longer time, then Developer must within sixty (60) days commence the actions necessary to cure the default and thereafter diligently proceed to cure the default.
8.5 Developer’s Termination of Agreement or Exercise of Other Remedies Upon City’s Default. Developer may terminate this Agreement or exercise its other remedies upon City ’s failure to perform any material duty or obligation under this Agreement. Developer may terminate this Agreement or exercise its other remedies only after providing Notice of default to City setting forth the nature of the default and the actions, if any, required by City to cure the default and only if City has failed to take such actions and materially cure the default w ithin sixty (60) days after its receipt of the Notice. If a default is of a type that cannot be cured within sixty (60) days but can be cured within a longer time, then City must within sixty (60) days commence the actions necessary to cure the default and thereafter diligently proceed to cure the default.
8.6 Informal Resolution . During the administration and implementation of this Agreement, the Parties recognize that good faith disagreements may arise between City staff and
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Developer. In the event that a dispute arises, the Parties will meet and confer in a good -faith attempt to resolve the dispute.
9. THIRD PARTY LITIGATION.
9.1 Defense of Third Party Litigation. City shall promptly notify Developer in writing of any claim, action or proceeding filed and served against City to challenge, set aside, void, annul, limit or restrict the approval and continued implementation and enforcement of this Agreement, including but not limited to challenges of the environmental review of the Project and this Agreement conducted pursuant to the California Environmental Quality Act. Developer and City agree to use good faith, commercially reasonable efforts to confer and cooperate with one another with respect to such third party litigation. Developer shall defend (with legal counsel of Developer’s selection, reasonably acceptable to City), indemnify and hold harmless City, its agents, officers and employees from any such claim, action or proceeding, and shall indemnify City for all costs of defense and/or judgment obtained in any such action or proceeding; provided, however, if Developer elects, in its sole discretion, not to defend the action (preferring to either allow judgment to be entered or to enter into a settlement with plaintiff(s) which declares this Agreement to be v oid, annulled, or which limits or restricts this Agreement), Developer shall so notify City in writing and City shall then have the option, in its sole discretion, of defending the action at its cost. In the event this Agreement, as a result of a third pa rty challenge, is voided or annulled, or is limited or restricted such a manner that the intent and purposes of this Agreement cannot be implemented as mutually desired by the parties hereto, this Agreement shall terminate and be of no further force or eff ect as of the date such judgment or settlement so voids, annuls, limits, or restricts the intent and purpose of this Agreement.
9.2 Extension of Term. Anything in this Agreement to the contrary notwithstanding, the Term (and any extension thereof under Section 2.3) will automatically be extended by the number of days in the period commencing on the date of filing of any claim, action, or proceeding of the type described in Section 9.1 and ending on the date that the claim, action, or proceeding is either settled or fully and finally resolved in City ’s and Developer ’s favor, as evidenced by the expiration of all appeal periods with no further appeal being filed or the issuance of a full, final, and non-appealable judgment or decision. City will execute, in reco rdable form, any instrument which Developer may reasonably require to evidence the extension.
10. MORTGAGEES.
10.1 Mortgagee Protection.
a. This Agreement does not prevent or limit Developer, in its sole discretion, from encumbering the Property or any portion or any improvement thereon with any mortgage, deed of trust or other security device. City acknowledges that a Mortgagee may require Agreement interpretations and modifications. City will meet with Developer and the Mortgagee ’s representatives to negotiate in g ood faith with regard to any requested interpretation or modification. City may not unreasonably withhold its consent to any requested interpretation or modification. All Mortgagees will be entitled to the following rights and privileges:
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i. Developer’s bre ach of this Agreement will not defeat, render invalid, diminish or impair the lien of any mortgage made in good faith and for value. ii. Upon a Mortgagee’s written request, City will provide a copy of any Notice of default given to Developer concurrently with the Notice to Developer. The Mortgagee will have the right, but not the obligation, to cure the default within any remaining cure period allowed Developer under this Agreement.
iii. Any Mortgagee who comes into possession of the Property or any portion of it pursuant to foreclosure of the Mortgagee’s security instrument or its acceptance of a deed in lieu of foreclosure will take the Property or portion subject to this Agreement. Any other provision of this Agreement to the contrary notwithstanding, no Mortga gee will have any obligation to perform any of Developer’s obligations or to guarantee their performance. However, if any of Developer’s obligations are conditions precedent to City’s obligations, then Developer’s obligations will continue to be conditions precedent to City’s performance of its obligations.
11. INSURANCE; INDEMNIFICATION.
11.1 Insurance.
a. Types of Insurance.
i. Public Liability Insurance . Prior to commencement and until completion of construction by Developer on the Property, Developer shall at its so le cost and expense keep or cause to be kept in force for the mutual benefit of City and Developer broad form commercial general public liability insurance against claims and liability for personal injury or death arising from the use, occupancy, disuse or condition of the Property, improvements or adjoining areas or ways, affected by such use of the Property or for property damage, providing protection of a least Five Million Dollars ($5,000,000) per occurrence for bodily injury, death or property damage c ombined for any one accident or occurrence, which limits shall be subject to reasonable increases in amount as City may reasonably require from time to time. ii. Builder’s Risk Insurance . Prior to commencement and until completion of construction by Developer on the Property, Developer shall procure and shall maintain in force, or caused to be maintained in force, “all risks” builder’s risk insurance including vandalism and malicious mischief, covering improvements in place and all material and equipment at th e job site furnished under contract, but excluding contractor ’s, subcontractor ’s, and construction manager ’s tools and equipment and property owned by contractor ’s or subcontractor’s employees, with the replacement cost value of the Project, or on a projec t by project basis.
iii. Worker’s Compensation. Developer shall also furnish or cause to be furnished to City evidence reasonably satisfactory to it that any contractor with whom Developer has contracted for the performance of any work for which Developer is r esponsible hereunder carries workers’ compensation insurance as required by law. iv. Other Insurance . Developer may procure and maintain any insurance not required by this Agreement, but all such insurance shall be subject to all of the
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provisions hereof pert aining to insurance and shall be for the benefit of City (to the extent applicable) and Developer.
v. Insurance Policy Form, Sufficiency, Content and Insurer . All insurance required by express provisions hereof shall be carried only by responsible insurance companies licensed and admitted to do business by California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VIII or better, unless waived by City. All such policies shall be nonassessable and shall contain language, to the extent obtainable, to the effect that (i) any loss shall be payable notwithstanding any act of negligence (excepting willful and intentional violations of law) of City or Developer that might otherwise result in the forfeiture of the in surance, (ii) the insurer waives the right of subrogation against City and against City’s agents and representatives; (iii) the policies are primary and noncontributing with any insurance that may be carried by City; and (iv) the policies cannot be canceled or materially changed except after thirty (30) days’ written notice by the insurer to City or City’s designated representative. Developer shall furnish City with copies of all such policies promptly on receipt of them or with certificates evidencing the insurance. City shall be named as an additional insured or loss payee on all policies of insurance (other than Workers’ Compensation) required to be procured by the terms of this Agreement. The City’s Risk Manager acknowledges and agrees that the insura nce requirements above have been established based on anticipated use, activities, and conditions of the Property. In the event the City’s Risk Manager reasonably determines that a new or unreasonable use, activity, or condition of the Property, improveme nts or adjoining areas or ways, affected by such use of the Property under this Agreement creates an increased or decreased risk of loss to the City than what the Parties hereby acknowledge to be duly satisfied by the insurance requirements above, Develope r agrees that the minimum limits of the insurance policies required by this Section 11.1 may be changed accordingly upon receipt of written notice from the City’s Risk Manager; provided that Developer shall have the right to appeal a determination of incre ased coverage to the City Manager of City within twenty (20) days of receipt of notice from the City’s Risk Manager. vi. Failure to Maintain Insurance and Proof of Compliance. Developer shall deliver to City, in the manner required for notices, copies of cert ificates of all insurance policies required hereunder together with evidence satisfactory to City of payment required for procurement and maintenance of each policy within the following time limits:
(A) For insurance required above, within thirty (30 days) aft er the Effective Date.
(B) For any renewal or replacement of a policy already in existence, at least ten (10) days before the expiration or replacement of the existing policy. (C) If Developer fails or refuses to procure or maintain insurance as required hereby or fails or refuses to furnish City with required proof that that insurance has been procured and is in force and paid for, such failure or refusal shall be a default hereunder.
11.2 Indemnification.
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a. General. Each Party shall indemnify the other Party and its of ficers, employees, and agents against, and will hold and save them and each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions, or liabilities (herein “claims or liabilities”) that may be asserted or claimed by any person, firm, or entity arising out of or in connection with the work, operations, or activities by any or all of the indemnifying Party or its agents, employees, or contractors (including subcontractors), upon the Property and relating to this Agreement; i. The indemnifying Party will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including reasonable legal costs and attorneys’ fees incurred in connection therewith. ii. The indemnifying Party will promptly pay any judgment rendered against the indemnified Party or its officers, agents, or employees for any such claims or liabilities arising out of or in connection with its foregoing indemnity and will save and hold the indemnified Party, its officers, agents, and employees harmless from any failure to so pay any such judgment. iii. In the event the indemnified Party, its officers, agents, or employees is made a party to the action or proc eeding filed or prosecuted against for such damages or other claims arising out of or in connection with the work, operations, or activities of the indemnifying Party under this Agreement, the indemnifying Party agrees to pay the indemnified Party, its officers, agents, or employees any and all reasonable out -of-pocket costs and expenses actually incurred by the indemnified Party, its officers, agents, or employees in such action or proceeding, including by not limited to reasonable legal costs and attorneys’ fees. b. Exceptions. The indemnities and releases of this Section 11.2 shall not include claims or liabilities to the extent and degree arising from the negligence or willful misconduct of any or all of the indemnified Party and its officers, agents and employees. c. Loss and Damage . Except as otherwise set forth in this Agreement, City shall not be liable for any damage to property of Developer or of others located on the Property, nor for the loss of or damage to any property of Developer or of others by t heft or otherwise.
Except as otherwise set forth in this Agreement, City shall not be liable for any injury or damage to persons or property resulting from fire, explosion, steam, gas, electricity, water, rain, dampness or leaks from any part of the Prope rty or from the pipes or plumbing, or from the street, or from any environmental or soil contamination or hazard, or from any other latent or patent defect in the soil, subsurface or physical condition of the Property, or by any other cause of whatsoever nature. d. Period of Indemnification . The obligations for indemnity under this Section 11.2 shall begin upon the Effective Date and shall terminate upon termination of this Agreement, provided that indemnification shall apply to all claims or liabilities arising during that period even if asserted at any time thereafter. In all events, however, these indemnity obligations shall expire on the fifth (5th) anniversary of the termination date of this Agreement, except that the indemnities shall survive beyond that date with respect to any claims pending at the expiration date for which timely and proper submission has occurred pursuant to the applicable indemnity provisions.
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e. Waiver of Subrogation. Each Party agrees that it shall not make any claim against, or seek to recover from other Party or its agents, servants, or employees, for any loss or damage to the Party or to any person or property, except as specifically provided hereunder and each Party shall give notice to any insurance carrier of the foregoing waiv er of subrogation, and obtain from such carrier, a waiver of right to recovery against the other Party, its agents and employees.
12. MISCELLANEOUS PROVISIONS.
12.1 Recordation of Agreement . This Agreement and any amendment or cancellation of it will be recorded with the San Bernardino County Recorder by City Clerk in accordance with Government Code Section 65868.5.
12.2 Entire Agreement . This Agreement contains the entire understanding and agreement of the Parties. There are no oral or written representations, understandings or ancillary covenants, undertakings or agreements that are not contained or expressly referred to in this Agreement. Parole evidence will not be admissible to interpret this Agreement.
12.3 Estoppel Certificates. Within ten (10) days following a Party’s written request, and at no cost to the requesting Party, the other Party will certify in writing that, to its knowledge:
a. This Agreement is in full force and effect and is binding upon the certifying Party.
b. This Agreement has not been amended or modified, except as expressly described in the estoppel certificate.
c. The requesting Party is not in default of its obligations under this Agreement, and that there have been no events that with the passage of time, the giving of notice, or both, would constitute the requesting Party’s default under this Agreement, except as expressly described in the estoppel certificate.
12.4 Severability. Every provision of this Agreement is a separate and independent covenant. If any provision is, or the application of the provision in certain circumstances is, to any extent, found to be invalid or unenforceable for any reason whatsoever, then the remainder of this Agreement, or the application of that provision to circumstances other than those to which it is invalid or unenforceable, will not be affected. The Parties will negotiate in good faith any amendments or operating memoranda necessary to cure any invalidity or unenforceability.
12.5 Interpretation and Governing Law. This Agreement and any dispute concerning it will be governed and interpreted in accordance with California’s procedural and substantive laws, without regard to its conflicts of laws principles. This Agreement will be construed as a whole according to its fair language and common meaning. The rule of construction that ambiguities in a document are to be resolved against the drafting party may not be employed in interpreting this Agreement. Each Party acknowledges that it was represented by counsel in this Agreement ’s negotiation and preparation.
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12.6 Section Headings. All section headings and subheadings are inserted for convenience only and do not affect this Agreement’s construction or interpretation.
12.7 Singular and Plural. The singular of any word includes the plural.
12.8 Including. Unless the context requires otherwise, the term “including” means “including, but not limited to.”
12.9 Time of Essence. Time is of the essence as to the performance of any obligation as to which time is an element.
12.10 Calendar Periods. All references to “years”, “quarters”, “months” and “days” are references to calendar years, quarters, months and days.
12.11 Waiver. A Party ’s failure on any one or more occasions to insist upon strict compliance by the other Party, or a Party ’s failure on any one or more occasions to exercise its rights upon the other Party ’s default, is not a waiver of that Party ’s right to demand strict compliance by the other Party on any future occasion.
12.12 No Third Party Beneficiaries. This Agreement is entered into for the sole protection and benefit of the Parties and their successors and assigns. Except as provided in Section 9, no other person or entity has any right of action based upon this Agreement.
12.13 Permitted Delays. Neither Party will be in default of an obliga tion if that Party ’s inability to perform or delay in performing that obligation is caused a Permitted Delay.
12.14 Successors in Interest. The burdens of this Agreement are binding upon, and the benefits of this Agreement inure to, the Parties ’ permitted successors in interest. All provisions are enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act with regard to the Development of the Property:
a. Is for the benefit of and is a burden upon all portions of the Property. b. Runs with the Property and all portions.
c. Is binding upon each Party and its successors in interest during the term of that Party’s or its successors’ ownership of the Property or any portion.
12.15 Counterparts. This Ag reement will be executed in three (3) counterparts, which will be construed together and have the same effect as if the Parties had executed the same instrument.
12.16 Jurisdiction and Venue. All legal actions and proceedings to enforce or interpret this Agreement must be filed and tried in San Bernardino County Superior Court or other legally appropriate court and venue.
12.17 Project as a Private Undertaking. The Project is a private development and neither Party is acting as the agent of the other in any respect. Each Party is an independent contracting
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entity with respect to this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between City and Developer is that of a government entity regulating the development of private property by a private party.
12.18 Further Actions and Instruments . Each Party must cooperate with the other and provide reasonable assistance to the other in the performance of the other Party ’s obligations.
Upon a Party ’s request, the other Party must promptly execute (with notary acknowledgment if required) those instruments, and take any reasonable actions, necessary to evidence or consummate the transactions expressly described, or which are a logical extension of the transactions described, in this Agreement.
12.19 Eminent Domain . No provision of this Agreement expands, limits, or restricts City’s exercise of its eminent domain powers.
12.20 Attorneys’ Fees. If either Party files any action or brings any action or proceeding against the other pertaining to the interpretation or enforcement of this Agreement, then the prevailing Party will recover as an element of its costs of suit and not as damages its costs of suit, expert fees, consultant costs, and reasonable attorneys’ fees as fixed by the Court.
12.21 Authority to Execute. Each natural person executing this Agreement on behalf of a Party represents that he or she has the authority to execute this Agreement on behalf of that Party and that he or she has the authority to bind that Party to this Agreement. [Signature pages follow]
1032/035592-0008
17551736.1 a05/04/22 -26-
01071.0005/782085.1
SIGNATURE PAGE
TO
HESPERIA COMMERCE CENTER DEVELOPMENT AGREEMENT
“CITY”
CITY OF HESPERIA,
a California general law city and municipal
corporation
By:
Its:
Name:
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01071.0005/782085.1
SIGNATURE PAGE
TO
HESPERIA COMMERCE CENTER DEVELOPMENT AGREEMENT
“DEVELOPER”
Main 395 Industrial, LL,
a California corporation
By:
Its:
Name:
Main Hesperia, LL,
a California corporation
By:
Its:
Name:
1032/035592-0008
17551736.1 a05/04/22
EXHIBIT A
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01071.0005/782085.1
EXHIBIT A
TO
HESPERIA COMMERCE CENTER II DEVELOPMENT AGREEMENT
Legal Description of Property
1032/035592-0008
17551736.1 a05/04/22
EXHIBIT C
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01071.0005/782085.1
EXHIBIT B
TO
HESPERIA COMMERCE CENTER II DEVELOPMENT AGREEMENT
Site Plan
BLDG. 3
PAD ELEV: VARIES
LOS ANGELES BUREAU OF POWER
YUCCA TERRACE DR
PHELAN RD
PHELAN RD
NEW PUBLIC ST
BLDG. 2A FUTURE EXPANSION
PAD ELEV: 3575.00
BLDG. 2
PAD ELEV: 3575.00
BLDG. 1
PAD ELEV: 3566.75 BLDG. 1
PAD ELEV: 3566.75
DETENTION
BASIN
DETENTION
BASIN
HIGHWAY ROUTE 395
SULTANA ST
HIGHWAY 395
LOS BANOS
AVE
CITY OF HESPERIA
HESPERIA COMMERCE CENTER II
SITE PLAN EXHIBIT
PROJECTLOCATION
VICINITY MAP
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·
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·
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·
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·
·
·
·
·
·
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·
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ACREAGE
1 PARCEL #
NET PARCEL ACREAGE
75.08 312.77
TOTAL187.91
259.90
ACREAGE
A
PARCEL #
GROSS PARCEL ACREAGE
26.58 C13.47
TOTAL194.72
B76.14
D78.53
AVERAGE LOT SIZE
46.98 AC
2A40.16
HYDROLOGY SUMMARY
DRAINAGE
AREA No.
TRIBUTARY
AREA (AC)
IMPERVIOUS
RATIO
DESIGN
CAPTURE
VOLUME (CFT)
V100 (CF)
TOTAL
RETENTION
VOLUME (CF)
TOTAL
PROVIDED
VOLUME (CFT)
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01071.0005/782085.1
EXHIBIT C
TO
HESPERIA COMMERCE CENTER II DEVELOPMENT AGREEMENT
Benefitted Areas
APN: 3064-431-11
APN: 3064-401-08 APN: 3064-401-01
APN: 3064-401-03
APN: 3064-401-06
APN: 3064-431-07APN: 3064-431-08
APN: 3064-401-04
APN: 3064-401-05
APN: 3064-341-09
APN: 3064-431-03
APN: 3064-381-05
APN: 3064-401-07
APN: 3064-381-02
APN: 3064-531-03
APN: 3064-341-10
APN: 3064-381-03
APN: 3064-381-14
APN: 3064-381-15APN: 3064-381-10APN: 3064-381-11APN: 3064-381-06 APN: 3064-441-07
APN: 3064-381-07
APN: 3064-421-03
APN: 3064-531-08
APN: 3064-531-02
APN: 3064-431-01
APN: 3064-531-06
APN: 3064-531-01 APN: 3064-491-17
APN: 3064-491-23
APN: 3064-491-25
APN: 3064-381-04
APN: 3064-491-01
APN: 3064-381-09 APN: 3064-381-08
APN: 3064-381-13 APN: 3064-341-08 APN: 3064-341-07APN: 3064-381-12 APN: 3064-491-04
APN: 3064-491-03
APN: 3064-491-24
APN: 3064-491-10
APN: 3064-491-11
APN: 3064-431-02
APN: 3064-491-12
APN: 3064-431-12
APN: 3064-431-04APN: 3064-431-05
APN: 3064-431-06
APN: 3064-531-04
APN: 3064-531-05
LOS ANGELES BUREAU OF POWER
APN: 3064-431-01
APN: 3064-421-03
APN: 3064-431-09APN: 3064-431-10
APN: 3064-501-11
APN: 3064-551-01APN: 3064-551-02APN: 3064-551-03APN: 3064-551-04 APN: 3064-541-02
APN: 3064-541-04APN: 3064-541-06
APN: 3064-541-01
APN: 3064-511-11
APN: 3064-541-03APN: 3064-541-05
HIGHWAY 395
YUCCA TERRACE DRIVE
PHELAN ROAD
NEW PUBLIC STREET BLDG 2 BLDG 1
LOS BANOS AVE
SULTANA STREET
HIGHWAY 395
YUCCA TERRACE DRIVE
BLDG 3
DA EXHIBIT C - (HCC-II) OFFSITE SEWER IMPROVEMENT BENEFICIARY
DA EXHIBIT C - (HCC-II) OFFSITE SEWER IMPROVEMENT BENEFICIARY
SEWER SUMMARY
APN: 3064-431-11
APN: 3064-401-09, -10
APN: 3064-401-01
APN: 3064-401-03
APN: 3064-401-06
APN: 3064-431-07APN: 3064-431-08
APN: 3064-401-04APN: 3064-401-05
APN: 3064-341-09
APN: 3064-431-03
APN: 3064-381-05
APN: 3064-401-07
APN: 3064-381-02
APN: 3064-531-03
APN: 3064-341-10
APN: 3064-381-03
APN: 3064-381-14
APN: 3064-381-15APN: 3064-381-10APN: 3064-381-11APN: 3064-381-06 APN: 3064-441-07
APN: 3064-381-07
APN: 3064-421-03
APN: 3064-531-08
APN: 3064-531-02
APN: 3064-431-01
APN: 3064-531-06
APN: 3064-531-01 APN: 3064-491-17 APN: 3064-491-23
APN: 3064-491-25
APN: 3064-381-04
APN: 3064-491-01
APN: 3064-381-09 APN: 3064-381-08
APN: 3064-381-13 APN: 3064-341-08 APN: 3064-341-07
APN: 3064-381-12
APN: 3064-491-04
APN: 3064-491-03
APN: 3064-491-24
APN: 3064-491-10
APN: 3064-491-11
APN: 3064-431-02
APN: 3064-491-12
APN: 3064-431-12
APN: 3064-431-04
APN: 3064-431-05
APN: 3064-431-09
APN: 3064-431-06
APN: 3064-431-10
APN: 3064-531-04
APN: 3064-531-05
LOS ANGELES BUREAU OF POWER
APN: 3064-431-01
APN: 3064-421-03
APN: 3064-431-09APN: 3064-431-10
APN: 3064-501-11
APN: 3064-551-01APN: 3064-551-02APN: 3064-551-03APN: 3064-551-04 APN: 3064-541-02APN: 3064-541-04
APN: 3064-541-06
APN: 3064-541-01
APN: 3064-511-11
APN: 3064-541-03APN: 3064-541-05
HIGHWAY 395
YUCCA TERRACE DRIVE
PHELAN ROAD
NEW PUBLIC STREET
BLDG 2
BLDG 1
LOS BANOS AVE
SULTANA STREET
HIGHWAY 395
YUCCA TERRACE DRIVE
BLDG 3
DA EXHIBIT C - (HCC-II) OFFSITE WATER IMPROVEMENT BENEFICIARY
DA EXHIBIT C - (HCC-II) OFFSITE WATER IMPROVEMENT BENEFICIARY
WATER SUMMARY
ATTACHMENT 10 AVAILABLE FOR REVIEW IN THE CITY CLERK’S
OFFICE AND CITY WEBSITE