LOsBanos
At the Crossroads of California
www.losbanos.org
AGENDA
CITY COUNCIL MEETING
CITY HALL COUNCIL CHAMBERS
520 J Street
Los Banos, California
JANUARY 19, 2022-6:00 PM
The City Hall Council Chambers remain closed to the public.
In accordance with Assembly Bill 361, all members of the City Council and City staff will join the meeting via phone/video conference and no teleconference locations are required.
The following alternatives are available to members of the public who wish to watch the meeting and/or provide comments to the City Council before and during the meeting:
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Find your local number: https://us06web.zoom.us/u/kczlS8fEHO Los Banos City Council Agenda - January 19, 2022 Page 1 of 7 1 HOW TO COMMENT DURING A PUBLIC MEETING
Public comments will be taken at the time of each eligible Agenda item.
If you would like to submit written comments: Please submit written comments by email to [email protected] or drop them off at City Hall, 520 J Street.
If you are a Zoom video Conference participant: To comment by Zoom video conference, click the "Raise Your Hand" button to request to speak when Public Comment is being taken on an eligible agenda item. You will then be unmuted during your turn and allowed to make public comments. After the allotted time, you will then be re-muted.
• Instructions on how to join a Zoom meeting and "Raise Your Hand" are available at:
https://support.zoom.us/hc/en-us/articles/115002262083-Joining-a-Zoom-testmeeting If you are a phone participant: To comment by phone, please call on one of the above listed phone numbers. You will be prompted to "Raise Your Hand" by pressing "*9" to request to speak when Public Comment is being taken on an eligible agenda item. You will then be unmuted during your turn and allowed to make public comments. Then, press "*6'' to unmute yourself in order to speak. After the allotted time, you will then be re-muted.
• Instructions on how to join a Zoom meeting by phone are available at:
https://support.zoom.us/hc/en-us/articles/201362663-Joining-a-Zoom-meeting-byphone
IMPORTANT THINGS TO REMEMBER DURING YOUR PUBLIC COMMENT PERIOD
1. All attendees shall be muted upon entry to the meeting.
2. Please do not raise your hand if the item currently being heard is not the item you wish to speak on. We will call for public testimony on each item individually. When the item you are interested in is called and public speakers are invited to raise their hands, raise yours then and we will call them all in the order they are raised.
3. You may of course speak on multiple items but your comments during each item must address the item currently under discussion. Speakers attempting to speak about items other than the item currently under consideration will be muted and asked to wait for the item they're here to speak about to be called.
If you have any questions prior to the meeting, please email City Clerk Lucy Mallonee at [email protected] or call (209) 827-2412.
Los Banos City Council Agenda - January 19, 2022 Page 2 of 7 2 If you require special assistance to attend or participate in this meeting, please call the City Clerk's Office@ (209) 827-7000 at least 48 hours prior to the meeting.
The City of Los Banos complies with the Americans with Disabilities Act (ADA) of 1990. * * * * * * * ** * * * * * * *
Si requiere asistencia especial para atender o participar en esta junta por favor flame a la oficina de la Secretaria de la ciudad al (209) 827-7000 a lo menos de 48 horas previas de la junta.
La Cuidad de Los Banos cumple con la Acta de Americanos con Deshabilidad (ADA) de 1990.
Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection at the meeting and in the City Clerk's office located at City Half, 520 J Street, Los Banos, California during normal business hours. In addition, such writings and documents may be posted on the City's website at www.losbanos.org.
* * * * * * * ** * * * * * * *
Cualquier escritura o los documentos proporcionaron a una mayoria de/ Ayuntamiento respecto a cualquier articulo en este orden de/ dia sera hecho disponible para la inspecci6n publica en la reunion yen la oficina de la Secretaria de la ciudad en City Half, 520 J Street, Los Banos,
California durante horas de oficina normales. Ademas, tales escrituras y los documentos pueden ser anunciados en el website de la ciudad en www.losbanos.org.
1. CALL TO ORDER - January 19, 2022 6:00 PM
2. PLEDGE OF ALLEGIANCE.
3. ROLL CALL: (City Council Members)
Jones , Lambert , Lewis , Llamas __ , Faria
4. CONSIDERATION OF APPROVAL OF AGENDA.
5. PRESENTATIONS.
A. Certificates of Recognition:
1) Efren Fernandez, Police Officer - Employee of the Year 2) Carlos Granillo, Maintenance Worker Ill - Employee of the Year Nominee
3) Mario Iniguez, Maintenance Mechanic - Employee of the Year Nominee B. Proclamations Recognizing City Commissioners:
1) Dennis Reed - Airport Advisory Commission
2) Kathy Ballard - Measure H Citizens Oversight Committee 3) Roger Pruitt - Measure H Citizens Oversight Committee 4) Mark Bodley- Measure P Committee
5) Tim McNally - Measure P Committee
6) John Spevak - Parks & Recreation Commission
Los Banos City Council Agenda - January 19, 2022 Page 3 of7 3 Pgs 9-11
Pgs 13-20
7) Laurel Heaton - Tree Commission
8) Trinidad Ramos - Tree Commission
6. REORGANIZATION OF CITY COUNCIL- SELECTION OF MAYOR PRO TEM.
Recommendation: Selection made by the consensus of the City Council.
7. PUBLIC FORUM. (Members of the public may address the City Council Members on any item of public interest that is within the jurisdiction of the City Council; includes agenda and non-agenda items. No action will be taken on non-agenda items. Speakers are limited to a five (5) minute presentation. Detailed guidelines on how to participate and make comments are listed on pages 1 and 2 of this agenda. Comments received prior to the meeting will be read into the record at the appropriate time during the City Council Meeting.)
8. CONSIDERATION OF APPROVAL OF CONSENT AGENDA. (Items on the Consent Agenda are considered to be routine and will be voted on in one motion unless removed from the Consent Agenda by a City Council Member.) A. Check Register for #230511 -#230614 in the Amount of $332,283.42.
Recommendation: Approve the check register as submitted.
B. Minutes for the City Council Meeting of December 15, 2021 .
Recommendation: Approve the check register as submitted.
C. City Council Resolution No. 6448 - Reauthorizing Remote Teleconference Meetings of the Legislative Bodies of the City of Los Banos Pursuant to the Provisions of AB 361.
Recommendation: Adopt the resolution as submitted.
D. City Council Resolution No. 6449 - Appointing Members to the Measure P Citizens Oversight Committee: Mark Bodley & Tim McNally.
Recommendation: Adopt the resolution as submitted.
E. City Council Resolution No. 6450 - Authorizing the City Manager to Execute a Professional Services Agreement with Monument for Right-of-Way and Surveying Services for the Pioneer Road Widening Project.
Recommendation: Adopt the resolution as submitted.
F. City Council Resolution No. 6451 - Authorizing the Release of Unclaimed Checks Pursuant to California Government Code Section 50050 and 50053 to the City of Los Banos.
Recommendation: Adopt the resolution as submitted.
Los Banos City Council Agenda - January 19, 2022 Page 4 of 7 4 Pgs 21-22
Pgs 23-29
Pgs 31-38
Pgs 39-50
Pgs 51-114
Pgs 115-120
G. City Council Resolution No. 6452 - Authorizing the City Manager to Charge a Flat Rate for Late Penalties for Delinquent Water, Wastewater and Solid Waste Services.
Recommendation: Adopt the resolution as submitted.
H. City Council Resolution No. 6453 - Approving the Application Submission for the Rural Recreation and Tourism Program Grant.
Recommendation: Adopt the resolution as submitted.
9. CONSIDERATION OF APPROVAL OF ORDINANCE NO. 1193 - APPROVING A
PRE ANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
LOS BANOS AND AMG & ASSOCIATES, LLC FOR THE ANNEXATION OF APPROXIMATELY 28.5 ACRES GENERALLY LOCATED AT THE SOUTHEAST
CORNER OF OVERLAND AVENUE AND JOHNSON ROAD MORE
SPECIFICALLY IDENTIFIED AS ASSESSOR'S PARCEL NUMBER 081-110-007 [AMG INDUSTRIAL BUSINESS PARK ANNEXATION].
(Second Reading & Adoption)
Recommendation: Receive staff report, waive the second reading, and adopt the ordinance as submitted.
10. CONSIDERATION OF APPROVAL OF ORDINANCE NO. 1194 - ADDING CHAPTER 3.2 (ORGANIC WASTE DISPOSAL REDUCTION) TO TITLE 6 (SANITATION AND HEAL TH) OF THE LOS BANOS MUNICIPAL CODE. (Second Reading & Adoption)
Recommendation: Receive staff report, waive the second reading, and adopt the ordinance as submitted.
11. CONSIDERATION OF ADOPTION OF CITY COUNCIL RESOLUTION NO. 6454 - ACCEPTING THE 2020-2021 FISCAL YEAR AUDIT REPORTS CONSISTING OF
THE ANNUAL COMPREHENSIVE FINANCIAL REPORT AND THE
GOVERNMENT AUDITING STANDARDS REPORT.
Recommendation: Receive staff report and adopt the resolution as submitted.
12. ELIMINATION OF THE ECONOMIC DEVELOPMENT ADVISORY COMMISSION.
A. Ordinance No. 1195 - Eliminating the Economic Development Advisory Commission Specifically Repealing Title 2 Chapter 2 Article 4 of the Los Banos Municipal Code. (First Reading & Introduction)
Recommendation: Receive staff report, waive the first reading, and introduce the ordinance as submitted.
13. SPEED CUSHION POLICY REVIEW REPORT.
Recommendation: Receive staff report and direction from the City Council on how to proceed.
Los Banos City Council Agenda - January 19, 2022 Page 5 of 7 5 Pgs 121-124
Pgs 125-132
Pgs 133-174
Pgs 175-198
Pgs 199-344
Pgs 345-348
Pgs 349-414
14. ACCEPTANCE OF GRANT DEEDS FROM THE LOS BANOS DESIGNATED
LOCAL AUTHORITY (DLA), AS SUCCESSOR AGENCY TO THE FORMER LOS BANOS REDEVELOPMENT AGENCY (RDA) TO THE CITY OF LOS BANOS.
A. City Council Resolution No. 6455 - Accepting the Grant Deed from the Los Banos DLA, as Successor Agency to the Former Los Banos RDA to the City of Los Banos, a 3.2 Acre Parcel Located on 2nd Street and 4th Street and between G Street and H Street, Currently Zoned Rail Corridor (RC), APN 025-054-005, Developed with a Public Walking Trail.
B. City Council Resolution No. 6456 - Accepting the Grant Deed from the Los Banos DLA, as Successor Agency to the Former Los Banos RDA to the City of Los Banos, a 6.5 Acre Parcel Located between Ward Road and Place Road, Currently Zoned Rail Corridor (RC), APN 083-100-067; Developed with a Public Walking Trail.
Recommendation: Receive the staff report and adopt the resolutions as submitted.
15. ACCEPTANCE OF GRANT DEED FROM THE LOS BANOS DESIGNATED
LOCAL AUTHORITY (DLA), AS SUCCESSOR AGENCY TO THE FORMER LOS BANOS REDEVELOPMENT AGENCY (RDA) TO THE CITY OF LOS BANOS.
A. City Council Resolution No. 6457 - Accepting the Grant Deed from the Los Banos DLA, as Successor Agency to the Former Los Banos RDA to the City of Los Banos, a 0.18 Acre Parcel Located on G Street and 9th Street (Future), Currently Zoned Rail Corridor (RC), APN 025-114-005, Undeveloped.
Recommendation: Receive the staff report and adopt the resolution as submitted.
16. APPOINT COMMISSIONERS TO THE FOLLOWING COMMISSIONS:
A. Parks & Recreation Commission - Two (2) Vacancies
Two (2) Two (2) Year Terms - Expiring December 31, 2023 B. Measure H Citizens' Oversight Committee - Four (4) Vacancies One (1) Two (2) Year Term - Expiring December 31, 2023
C. Tree Commission - Three (3) Vacancies
One (1) Two (2) Year Term - Expiring December 31, 2023
Recommendation: Appoint commissioners to fill the vacancies.
17. ADVISEMENT OF PUBLIC NOTICES. (No Report)
Recommendation: Informational item only, no action to be taken.
18. CITY MANAGER REPORT.
Recommendation: Informational item only, no action to be taken.
Los Banos City Council Agenda - January 19, 2022 Page 6 of 7 6 Pgs 415-438
Pgs 439-452
Pg 453
19. REPORT/UPDATE ON MERCED COUNTY ASSOCIATION OF GOVERNMENTS (MCAG), PENINSULA CLEAN ENERGY (PCE), AND MEASURE V COMMITTEE.
Recommendation: Informational item only, no action to be taken.
20. CITY COUNCIL MEMBER REPORTS.
A. Kenneth Lambert
8. Deborah Lewis
C. Refugio Llamas
D. Brett Jones
E. Mayor Tom Faria
21 . ADJOURNMENT.
I hereby certify under penalty of perjury under the laws of the State of California that the foregoing agenda was posted on the City Hall bulletin board not less than 72 hours prior to the meeting. ~~ i .)¾J_pli . ·-- Lucille L. Mallonee, City Clerk Dated this 13th day of January 2022 Los Banos City Council Agenda - January 19, 2022 Page 7 of 7 7 8
CERTIFICATE OF RECOGNITION
Presented rto
EFREN FERNANDEZ
Police Officer
In recognition of 6eing named
City of Los <Banos
2021 P,mpfoyee of tlie 'Year
:ManueC<Jnomas Paria III, :Mayor
(J)atecf: January 19, 2022
9 ITEM 5A
CERTIFICATE OF RECOGNITION
Presented rfo
CARLOS GRANILLO
Maintenance Worker III
In recognition of 6eing nominated
City of Los (}Janos
2021 <E;mpfoyee of tne 'Year Nominee
:.Manue{rrtiomas Paria III, :.Mayor
(l)atea: January 19, 2022
10 CERTIFICATE OF RECOGNITION
<Presented CJ'o
MARIO INIGUEZ
Maintenance Mechanic I
In recognition of 6eing nominated
City of Los <Banos
2021 P.mpfoyee of tlie 'Year
:M.anue{CJ'fiomas Pana III, :M.ayor
(J)ated: January 19, 2022
11 12
PROCLAMATION RECOGNIZING
DBNNISREBD
AIRPORT COMltUSSION JlEMBg
WHEREAS, Dennis Reed was appointed to serve as a member of the Los Banos Airport Commission on January 15, 2020; and
WHEREAS, Dennis Reed faithfully attended regular meetings of the Los Banos Airport Commission; and
WHEREAS., Dennis Reed was a dedicated member of the Los Banos Airport Commission and continually .provided his support .to the goals and missions of the commission; and
WHEREAS, Dennis Reed fulfilled his tenn as a member of the Los Banos Airport Commission on December 31, 2021.
NOW, THEREFORE, BE IT PROCLAlltlBD that the Mayor and City Council Members of the City of Los Banos do hereby recognize and commend Dennis Reed for his dedicated service as a member of the Los Banos Airport.
In witness whereat I have hereunto set my
hand and caused to be affixed the seal of
the City of Los Banos, this 19th day of
January 2022.
APPROVED:
Manuel Thomas Faria III, Mayor
Lucille L. Mallonee> City Clerk
ITEM 5B
13 PROCLAMATION RECOGNIZING
KATIIY BALLARD
MEASURE H CITIZENS~ OVERSIGHT COKMITTEE MEMBER
Wll.&REAS, Kathy Ballard was appointed to serve as a member of the Measu.re H Citizens' Oversi.ght Committee on January 15, 2020; and WBERBAS, Kathy Ballard faithfully attended regular meetings of the Measure H Citizens' Oversight Committee; and
WHBREA.S, Kathy Ballard was a dedicated member of the Measure H Citizens' Oversight Committee and continually provided her support to the goals and missions of the committee; and
WBER&tS, Kathy Ballard fulfilled her term as a member of the Measure H Citizens' Oversight Committee on December 31, 2021.
NOW, TBEBEFORE, BE IT PROCLAIMED that the Mayor and City Council Members of the City of Los Banos do hereby recognize and commend Kathy Ballard for her dedicated service as a member of the Measure H Citizens~ Oversight Committee.
In witness whereof,. I have hereunto set my
hand and caused to be affixed the seal of
the City of Los Banos, this 19th day of
January 2022.
· APPROVED:
Manuel Thomas Faria 1]I, Mayor
ATTEST:
Lucille L. Mallonee, City Clerk
14 PROCIAl4ATION RECOGNIZING
ROGER PRUITT
.lfEASURE H CITIZENS' OVERSIGHT COMMITTEE MEMBU
WIIBR£AS, Roger Pruitt was appointed to serve as a member of the Meq;sure H Citizens' Oversight Committee on January 1_5, 2020,· and . WB.ER&tS, Roger Pruitt faithfully attended regular meetings of the Measure H Citizens' Oversight Committee; and
WllBR&S, Roger Pruitt was a dedicated member of the Measure H Citizens' Oversight Committee and continually provided his support to the goals and missions of the committee,· and
WB.BRE.4S, Roger Pruitt fulfilled his term as a member of the Measure H Citizens;, Oversight Committee on December 31, 2021 .
.NOW, THEREFORE, BB IT PROC£A114ED that the Mayor and City Council Members of the City of Los Banas do hereby, recognize and commend Roger Pruitt for his dedicated service as a member of the Measure H Citizens' Oversight Committee.
In witness whereof, I have hereunto set my
hand and caused to ·be affixed .the seal of
the City of Los Banos, this 19th day of
January 2022.
APPROVED:
Manuel Thomas Faria III, Mayor
A1TEST:
Lucille L. Mallonee, City Clerk
15 PROCI..4MA TION RECOGNIZING
MARK BODLEY
.MEASURE P COM.HlTTEE JfEAfBER
Wll.E.RMS., Mark Bodley was appointed to serve as a member of the Los Banos Measure P Committee on January 2, 2019; and
WB.BR.&4S, Mark Bodley faithfully attended regular meetings of the Los Ba.nos Measure P Committee; and
WH.BRBAS, Mark Bodley was a dedicated member of the Los Banos Measure P Committee and continually provided his support to the goals and missions of the committee; and
W'IIERMS, Mark Bodley fulfilled his tenn as a member of the Los Banos Measure P Committee on December 31, 2021.
NOW, THBREFORE., BE IT PROCL41MED that the Mayor and City Council Members of the City of Los Banos do hereby recognize and commend Mark Bodley for his dedicated service as a member of the Los Banos Measure P Committee.
In witness whereof. I have hereunto set my
hand and caused to be affixed the seal of
the City of Los Banos, this 19th day of
January 2022.
APPROVED:
Manuel Thomas Faria HI, Mayor
ATTEST:
Lucille L. Mallonee, City Clerk
16 PROCLA.MA TION RECOGNIZING
TDf MCNALLY
MEASURE P COMMITTEE MEMBF.R
WBE.REAS, Ti.m McNally was appointed to serve as a member ofthe Los Banos Measure P Committee on January 2, 2019; and
WH:EREAS, Tim McNally faithfully attended regular meetings of the Los Banos Measure P Committee; and
WB&REAS, Ti.m McNally was a dedicated member of the Los Banos Measure P Committee and continually provided his support to the goals and missions of the committee; and
Wll.ERMS, Tim McNally fulfilled his term as a member of the Los Banos Measure P Committee on December 31, 2021.
NOW, TBBREFORE, BB IT PROCL4DIBD that the Mayor and City Council Members of the City of Los Banos do hereby recognize and commend Tim McNallyfor his dedicated service as a member of the Los Banos Measure P Committee.
In witness whereat I have hereunto set my
hand and caused to be .affixed the seal of
the City of Los Banos, thi.s 19th day of
January 2022.
APPROVED:
Manuel Thomas Faria III, Mayor
ATTEST:
Lucille L. Mallonee, City Clerk
17 PROCLAMATION RECOGNIZING
JOBNS.PEVAIC
PARKS & RECR&4 TION COMMlSSION MElfBER
WB.EREAS, John Spevak was appointed to serve as a member of the Los Banos Parks & Recreation Commission on January 15, 2020; and
WBB.RBAS., John Spevak faithfully attended regular meetings of the Los Banos Parks & Recreation Commission; and
WH&REAS, John Spevak was a dedicated member of the Los Banos Parks & Recreation Commission and continually provided his support to the goals and missions of the commission; and
WB&RBAS, John Spevak.fulfilled his term as a member of the Los Banos Parks & Recreation Commission on December 31, 2021.
M>W, TBBRBFOR.B, BE IT PROCLA.lMED that the Mayor and City Council Members of the City of Los Banos do hereby recognize and commend John Spevak for his dedicated service as a member of the Los Banos Parks & Recreation Commission.
In untness whereof, I have hereu,nto set my
hand·and caused to be affixed the seal.of
the City of Los Banos, this 19th day of
January 2022.
APPROVED:
Manuel Thomas Faria ll1, Mayor
AITEST:
Lucille L. Mallonee, City Clerk
18 PROCLAMATION RECOGNIZING
L.4UREL HEATON
TREE COMJIIISSlON MEMBER
WBB.REAS, Laurel Heaton was appointed to serve as a member of the Los Banos Tree Commission on January 15, 2020; and
WBE.RBAS, Laurel Heaton faithfully attended regular meetings of the Los Banos Tree Commission; and
WHERMS, Laurel Heaton was a dedicated member of the Los Banos Tree Commission and continually provided her support to the goals and missions of the commission; and
WH.&RMS, Laurel Heaton fulfilled her term as a member of the Los Banos Tree Commission on December 31, 2021.
M:>W, TBBR1£FORB, BE IT PROCUDfED that the Mayor and City Council Members of the City of Los Banos do hereby recognize and commend Laurel Heaton for her dedicated sernce as a member of the Los Banos Tree Commission.
In witness whereof. I have hereunto set my
hand and caused to be affixed the seal of
the City of Los Banos, this 1 gth day of
January 2022.
APPROVED:
Manuel Thomas Faria DI, Mayor
ATTEST:
Lucille L. Mallonee, City Clerk
19 PROCLAMATION RECOGNIZING
TRINIDAD RA.MOS
TREE COMMISSION MEHRER
WBBREA.S, Trinidad Ramos was appointed to serve as a member of the Los Banos Tree Commission on January 15, 2020; and
WBBREAS, Trinidad Ramos faithfully attended regular meetings of the Los Banos Tree Commission; and
WHEREAS, Trinidad Ramos was a dedicated member of the Los Banos Tree Commission and continually provided his support to the goals and missions of the commission; and
WBER£4S, Trinidad Ramos fulfilled his term as a member of the Los Banos Tree Commission-on December 31, 2021.
NOW, TBER:BFORE, BE IT PROCLA.lJ'lBD that the_ Mayor and City Council Members of the City of Los Banos do hereby recogni,z,e and commend Trinidad Ramos - - - for his dedicated service as a member of the Los Barios Tree Commission.
In witness whereof, I have hereunto set my
hand and caused to be affixed the seal of
the City of Los Banos, thi.s 19th day of
January 2022.
APPROVED:
Manuel Thomas Faria DI, Mayor
ATfEST:
Lucille L. Mallonee, City Clerk
20 CK# 230511- # 230614 01/19/2022 $332,283.42
Bank Reconciliation
Checks by Date
User: jcanchola .. ~. LOs Banos
~.}'~ '- .\/ t/1< Cm.;sn,r,d, of C<lli[<m,iu Printed: 01 / 12/2022 - 2:27PM Cleared and Not Cleared Checks
Print Void Checks
Check Check Name
230515 I /4/2022 Luis Beltran
230516 1/4/2022 Michael Neal
230517 1/4/2022 Juan Soriano
230518 1/5/2022 Aflac-Customer Service
230519 1/5/2022 AFSCME District Council 57
230520 1/5/2022 Rachelle Ciuffo
230521 1/5/2022 In Shape Health Clubs Inc
230522 1/5/2022 Los Banos Police Assn
230523 1/5/2022 Los Banos Police Assn
230524 1/5/2022 MassMutual
230525 l/5/2022 MassMutual
230526 1/5/2022 Gerald "Obie" O'Brien
230527 1/5/2022 Nationwide Retirement Solutions
230528 1/5/2022 Professional Fire Fighter
230529 I /5/2022 State Disbursement Unit
230530 1/5/2022 Vantagepont Transfer Agents - 306797
230531 1/5/2022 V antagepoint Transfer Agents - 801838
230532 1/5/2022 Law Offices of William A Vaughn
230533 1/7/2022 Abbott & Kindermann, Inc.
230534 1/7/2022 Anderson Pump Company Inc
230535 1/7/2022 Animal Damage Management, Inc.
230536 I /7 /2022 Anthony Gomes
230537 1/7/2022 Aramark Uniform Ser Inc
230538 1/7/2022 AramarkUniform & Career Apparel Group, Inc. 230539 1/7/2022 AT&T
230540 1/7/2022 AT&T
230541 1/7/2022 BJ's Consumers Choice
230542 1/7/2022 Boot Barn
230543 1/7/2022 Bruce's Tire Inc
230544 1/7/2022 BSK Associates
230545 J/7/2022 Bucher Municipal North America Inc.
230546 1/7/2022 Caliber Bodyworks, Inc.
230547 1/7/2022 CEP America California
230548 1/7/2022 Chabin Concepts, Inc.
230549 1/7/2022 Central Sanitary Supply
230550 I /7 /2022 Coffee Break Service Inc.
230551 I /7 /2022 Comcast
230552 117/2022 LN Curtis & Sons
230553 1/7/2022 Lamar A. Cummings
230554 1/7/2022 D & D Pest Control
230555 1/7/2022 Downstream Aviation LP
230556 1/7/2022 Elk Grove Auto Group, Inc.
230557 1/7/2022 Electric Drives Inc
230558 1/7/2022 Fast Track Car Wash
230559 1/7/2022 Ferguson Enterprises Inc DBA Groeniger & Company 230560 1/7/2022 Halcyon Creek Inc.
230561 l /7 /2022 Henley Pacific, LLC
230562 117/2022 Home Depot
Module Void Amount
AP 96.00
AP 96.00
AP 96.00
AP 366.86
AP 1,359.70
AP 331.32
AP 72.00
AP 1,120.00
AP 280.00
AP 1,162.62
AP 3,580.00
AP 77.14
AP 13,210.00
AP 975.00
AP 1,890.00
AP 911.90
AP 6,675.00
AP 12,600.00
AP 717.24
AP 3,505.04
AP 4,325.00
AP 2,545.03
AP 409.28
AP 401.34
AP 567.76
AP 260.02
AP 343.16
AP 190.00
AP 837.72
AP 876.00
AP 1,324.85
AP 4,199.83
AP 772.00
AP 7,850.00
AP 595.65
AP 157.50
AP 236.01
AP 347.67
AP 557.21
AP 171.00
AP 1,425.00
AP 32,657.48
AP 325.00
AP 301.00
AP 813.66
AP 86.55
AP 379.94
AP 4,039.92
21 ITEM 8A
230563 1/7/2022 Don Hughes Photography AP 108.75
230564 1/7/2022 Lucas Business Systems AP 143.74
230565 1/7/2022 Marfab Inc AP 55.62
230566 1/7/2022 Matson Alarm Co Inc AP Void 189.00
230567 1/7/2022 McCrometer Inc. AP 338.00
230568 1/7/2022 McNamara Sports Inc AP 2,007.22
230569 1/7/2022 Merced Chevrolet Inc. AP 60.17
230570 1/7/2022 Merced County Environmental Health AP 5,087.00 230571 1/7/2022 Merced County Dept Of Agriculture AP 144.40 230572 1/7/2022 Merced Truck & Trailer Inc AP 415.76
230573 1/7/2022 Monterey Auto Services Inc. AP 404.50
230574 1/7/2022 Griselda Mejia AP 600.00
230575 1/7/2022 Adrienne Moore AP 1,952.98
230576 1/7/2022 NFPA AP 175.00
230577 1/7/2022 North Central Laboratories AP 76.90
230578 117/2022 OSE AP 261.05
230579 1/7/2022 O'Reilly Auto Parts AP 610.53
230580 1/7/2022 Owen Equipment Sales AP 1,711.81
230581 1/7/2022 Plan It Geo LLC AP 3,550.00
230582 1/7/2022 Provost and Pritchard Engineering, Inc. AP 19,436.62 230583 1/7/2022 PVP Communications AP 46.48
230584 1/7/2022 Razzari Dodge Chrysler Jeep AP 4,470.48 230585 1/7/2022 Santos Ford Inc. AP 754.20
230586 1/7/2022 Save Mart Supermarkets AP 56.14
230587 1/7/2022 Michael Bartholomew AP 307.51
230588 1/7/2022 Sherwin Williams Co AP 304.07
230589 1/7/2022 Robert & Susan Hansen AP 418.69
230590 1/7/2022 Sorensens True Value AP 526.89
230591 1/7/2022 Sorensens True Value AP 52.72
230592 1/7/2022 Sprint Solutions, Inc. AP 189.95
230593 1/7/2022 Sun Ridge Systems, Inc. AP 17,900.00
230594 1/7/2022 SWRCB Accounting Office AP 5,064.00
230595 1/7/2022 T & T Pavement Markings and Products, Inc. AP 623.13 230596 I /7 /2022 Thirkettle Corporation AP 4,049.96
230597 1/7/2022 Tremco Products, Inc. AP 371.90
230598 1/7/2022 United Site Services, Inc. AP 122.63
230599 1/7/2022 USA Blue Book AP 2,172.22
230600 1/7/2022 Vanir Construction Management, Inc. AP 13,775.20 230601 1/7/2022 Windeckerlnc AP 33,526.06
230602 1/7/2022 Young's Air Conditioning AP 692.00
230603 1/7/2022 Zee Medical Service Co AP 71.30
230604 1/7/2022 VeronicaZambrano AP 600.00
230605 1/7/2022 Liebert Cassidy Whitmore AP 5,042.09
230606 1/7/2022 Oscar Daniel Figueroa Martinez AP 2,000.00 230607 1/7/2022 Merced County Clerk AP 2,598.00
230608 1/7/2022 Jesus Parras AP 199.00
230609 1/7/2022 Premier Access Insurance Co. AP 20,312.91 230610 1/7/2022 Regal Pacific Contracting and Compliance Inc. AP 3,012.50 230611 1/7/2022 Sun Life Financial AP 7,555.72
230612 1/7/2022 SWRCB Accounting Office AP 49,481.76
230613 1/7/2022 Wex Bank AP 75.00
230614 1/7/2022 Xerox Financial Services AP 2,464.46
Break in check sequence due to the following: Total Void Check Count:
Check# 230511 - # 230514 {Payroll) Total Void Check Amount: 189.00 Total Valid Check Count: 99
Total Valid Check Amount: 332,094.42
Total Check Count: 100
Total Check Amount: 332,283.42
22 CITY OF LOS BANOS
CITY COUNCIL MEETING MINUTES
DECEMBER 15, 2021
ACTION MINUTES - These minutes are prepared to depict action taken for agenda items presented to the City Council. For detail of this meeting refer to the electronic media (CD and/or audio) kept as a permanent record.
SPECIAL NOTE: This meeting was held by teleconference due to the COVID-19 Pandemic and in accordance with Assembly Bill 361.
CALL TO ORDER: Mayor Faria called the City Council Meeting to order at the hour of 6:06 p.m.
PLEDGE OF ALLEGIANCE: Police Chief Brizzee led the pledge of allegiance.
ROLL CALL - MEMBERS OF THE CITY COUNCIL PRESENT: Council Members Brett Jones, Kenneth Lambert, Deborah Lewis, Refugio Llamas, Mayor Manuel Thomas Faria Ill; ABSENT: None.
STAFF MEMBERS PRESENT: City Manager Pinheiro, City Attorney Vaughn, City Clerk/Human Resources Director Mallonee, Finance Director Williams, Community & Economic Development Director Elms, Police Chief Brizzee, Fire Chief Hurley, Interim Public Works Director Bowersox.
CONSIDERATION OF APPROVAL OF AGENDA: Motion by Lambert, seconded by Llamas to approve the agenda as submitted. The motion carried by the following roll call vote: AYES: Jones, Lambert, Lewis, Llamas, Mayor Faria; NOES: None; ABSENT:
None.
PRESENTATION - PROCLAMATION - RECOGNIZING THE RETIREMENT OF CITY OF LOS BANOS ASSISTANT FIRE CHIEF ROBERT STRAUCH. Mayor Faria presented the proclamation to Robert Strauch who was in attendance at the meeting to accept the proclamation.
PUBLIC FORUM: MEMBERS OF THE PUBLIC MAY ADDRESS THE CITY COUNCIL
MEMBERS ON ANY ITEM OF PUBLIC INTEREST THAT IS WITHIN THE JURISDICTION OF THE CITY: INCLUDES AGENDA AND NON-AGENDA ITEMS. NO ACTION WILL BE TAKEN ON NON-AGENDA ITEMS. SPEAKERS ARE LIMITED TO A FIVE (5) MINUTE PRESENTATION. DETAILED GUIDELINES ARE POSTED ON THE COUNCIL CHAMBER INFORMATIONAL TABLE. Mayor Faria opened the public forum and asked those participating in the meeting if they would like to speak: JUSTIN COLLINS stated that he has tried multiple times to speak to Council Member Lewis and that she will not return his calls so speaking during the public forum is the only way he will be able to speak with her. He spoke regarding fees for the Fourth of July event that was put on this year and how Council Member Lewis regularly asks staff to research or review certain items which takes a lot of staff time and ends up being costly. He spoke to how 23 ITEM 8B
he feels some of the decisions made by Council are fueled by personal vendettas and that majority of the public do not care about these personal issues but instead want what's best for the community overall ; GENE LIEB spoke to the recent American Rescue Plan Act (ARPA) workshop that was held in order to gather input from the public as to how some of these funds should be spent in the community. During that workshop he suggested using some funding towards keeping the Los Banos Enterprise operating as it should and staff was directed to research how much funding would be needed for this.
Mr. Lieb stated that he was supposed to receive a call back on the issue but never did.
He contacted City Manager Pinheiro who told him that no funding would be provided for a local newspaper and that Council did not have an interest in the idea. He believes democracy would die in a community that did not support freedom of the press.; KATHY BALLARD spoke to how she is on the Measure H Committee and that there have not been any meetings held in a very long time due to a lack of quorum and she is wanting to know whether there can be any type of meeting held at all without a quorum or if it is necessary to wait until there is a quorum for which City Attorney Vaughn stated that he would look into the matter and report back to Council. No one else came forward to speak.
Mayor Faria then asked City Clerk Mallonee if she had received any emailed comments, for which City Clerk Mallonee stated that she received one email pertaining to item 12 - Consideration of Fourth of July Celebration Special Event Fee Waiver and the Mayor noted that the emailed comments would be read into the record during that item. No one else came forward to speak and the public forum was closed.
CONSIDERATION OF APPROVAL OF CONSENT AGENDA. Council Member Jones stated that he would like to pull item 7E - City Council Resolution No. City Council Resolution No. 6430 - Approving a Tentative Agreement / Memorandum of Understanding by and Between the City of Los Banos and the Los Banos Police Officers Association (LBPOA) from December 1, 2021 - June 30, 2024 for discussion for which he wanted to thank staff for all the work they did to get this agreement before the City Council for approval.
Motion by Jones seconded by Lambert to approve the consent agenda as follows: Check Registerfor#230022-#230187 in the Amount of $554,115.86; Minutes for the November 17, 2021 City Council Meeting; Minutes for the November 23, 2021 Adjourned City Council Meeting; Minutes for the December 1, 2021 City Council Meeting; City Council Resolution No. 6430 - Approving a Tentative Agreement I Memorandum of Understanding by and Between the City of Los Banos and the Los Banos Police Officers Association (LBPOA) from December 1, 2021 - June 30, 2024; City Council Resolution No. 6431 - Amending Division 4, Salary Schedule - Employee Classifications Relating to Changes to Section F - Police Associated with the Los Banos Police Officers Association (LBPOA) Tentative Agreements / Memorandums of Understanding; City Council Resolution No. 6432 -Adopting a Revised Budget for the 2021-2022 Fiscal Year as it Pertains to Increasing Expenditures in the Fire Department Capital Outlay Specialized Equipment Account in the Amount of $31,404.06; City Council Resolution No. 6433 - Accepting Public Improvements for Sunrise Ranch, Phase 3, 12.48± Acres, Generally Located within the Area Bounded by East B Street to the North, Future San Luis Street to the South, Jo Lin Park Manor Subdivision to the East and Place Road to 24 the West, APN 428-080-001 (Stonefield Home Inc.); City Council Resolution No. 6434 - Accepting Public Improvements for Sunrise Ranch, Phase 4, 7.66±. Acres, Generally Located within the Area Bounded by East B Street to the North, Future San Luis Street to the South, Jo Lin Park Manor Subdivision to the East and Place Road to the West, APN 428-080-001 (Stonefield Home Inc.); City Council Resolution No. 6435 -Accepting a Grant Deed for a 10' Public Utility Easement Dedication of Approximately 21,814 Square Feet of Land Crossing Future Badger Flat Boulevard to the Northern Portion of Future Granite Boulevard and North Along the Western Portion of Limestone Boulevard and Authorizing the City Manager to Execute the Associated Documents (Anderson Homes, Inc.); City Council Resolution No. 6436 - Accepting a Grant Deed for a 1 0' Public Utility Easement Dedication of Approximately 4,273 Square Feet of Land Along the Western Portion of Future Badger Flat North of Future Granite Boulevard and Authorizing the City Manager to Execute the Associated Documents (Anderson Homes, Inc.); City Council Resolution No. 6437 - Reauthorizing Remote Teleconference Meetings of the Legislative Bodies of the City of Los Banos Pursuant to the Provisions of AB 361. The motion carried by the following roll call vote: A YES: Jones, Lambert, Lewis, Llamas, Mayor Faria; NOES: None; ABSENT: None.
CONSIDERATION OF APPROVAL OF CITY COUNCIL RESOLUTION NO. 6438 -
ACCEPTING THE GRANT DEED FROM THE LOS BANOS DESIGNATED LOCAL
AUTHORITY, AS SUCCESSOR AGENCY, TO THE FORMER LOS BANOS REDEVELOPMENT AGENCY TO THE CITY OF LOS BANOS, 0.13 ACRE PARCEL LOCATED DOWNTOWN AT 644/646 I STREET, UNDEVELOPED LAND, APN 025- 201-010. City Attorney Vaughn presented the staff report.
Motion by Lewis, seconded by Jones to adopt City Council Resolution No. 6438 - Accepting the Grant Deed from the Los Banos Designated Local Authority, as Successor Agency, to the Former Los Banos Redevelopment Agency to the City of Los Banos, 0.13 Acre Parcel Located Downtown at 644/646 I Street, Undeveloped Land, APN 025-201- 010. The motion carried by the following roll call vote: A YES: Jones, Lambert, Lewis, Llamas, Mayor Faria; NOES: None; ABSENT: None.
CONSIDERATION OF APPROVAL OF CITY COUNCIL RESOLUTION NO. 6439 -
AUTHORIZING VARIOUS EXPENDITURES FROM THE AMERICAN RESCUE PLAN ACT (ARPA) AND ADOPTING A REVISED BUDGET FOR FISCAL YEAR 2021/2022 AS IT PERTAINS TO EXPENDITURES. Finance Director Williams presented the staff report.
There was Council Member and staff discussion regarding items that are not currently be considered for funding and which items Council would like to further consider. Some of the topics discussed were small business funding, further consideration for the Los Banos Enterprise, and funding towards helping the current water quality issues the City is facing.
Council Member Jones requested that small business loans be removed from further consideration. Mayor Faria asked each Council Member if they would like to agree to remove the topic from further funding discussions and majority of the Council requested the topic remain in discussion for possible funding.
25 Motion by Jones, seconded by Llamas to adopt City Council Resolution No. 6439 - Authorizing Various Expenditures from the American Rescue Plan Act (ARPA) and Adopting a Revised Budget for Fiscal year 2021/2022 as it Pertains to Expenditures. The motion carried by the following roll call vote: AYES: Jones, Lambert, Lewis, Llamas, Mayor Faria; NOES: None; ABSENT: None.
Motion by Lambert, seconded by Llamas to direct staff to further pursue and include the items listed on page 237 of this agenda. The motion carried by the following roll call vote: AYES: Lambert, Llamas, Faria; NOES: Jones, Lewis.
It was requested that a note be made that the two dissenting Council Members only voted to not discuss any further the small business loans listed on page 237 of the agenda and that they would be open to further discussion other items on that list.
PUBLIC HEARING - TO RECEIVE PUBLIC INPUT AND TESTIMONY REGARDING
POSSIBLE REVISIONS TO LOS BANOS'S CITY COUNCIL ELECTORAL DISTRICT PLAN [7:00 P.M.]. City Attorney Vaughn presented the staff report and introduced Chris Skinnell and Jeff Tilton of National Demographic Corporation who presented a PowerPoint presentation.
Mayor Faria opened the public hearing and asked City Clerk Mallonee if there were any comments received for which City Clerk Mallonee stated there were no comments received and the public hearing was closed.
There were Council Member and representative discussion pertaining the draft maps, boundary lines and how changes in boundary lines could affect proper representation of the district. Any changes requested by Council would be made and brought back for further review during the final public hearing to be held at a council meeting in February.
No action taken. Opportunity for public comment only.
CONSIDERATION OF CITY COUNCIL RESOLUTION NO. 6440 -APPROVING AND ELECTING TO "OPT IN" TO THE SETTLEMENT AGREEMENTS AND AUTHORIZING
CITY MANAGER TO EXECUTE PARTICIPATION AGREEMENTS REGARDING THE SETTLEMENT OF THE NATIONAL OPIOID LITIGATION. City Attorney Vaughn presented the staff report.
There was Council Member and staff discussion regarding how the settlement funds could potentially be used towards services that would benefit those in Los Banos and on the West Side in general and how there will be future conversations with the County regarding potential programs.
Motion by Lambert, seconded by Llamas to adopt City Council Resolution No. 6440 - Approving and Electing to "Opt In" to the Settlement Agreements and Authorizing City Manager to Execute Participation Agreements Regarding the Settlement of the National Opioid Litigation. The motion carried by the following roll call vote: AYES: Jones, Lambert, Lewis, Llamas, Mayor Faria; NOES: None; ABSENT: None. 26 CONSIDERATION OF FOURTH OF JULY CELEBRATION SPECIAL EVENT FEE WAIVER; CITY COUNCIL RESOLUTION NO. 6441 - AMENDING THE POLICY
REGARDING WAIVER OR PARTIAL WAIVER OF DEPARTMENTAL SERVICE CHARGES RELATIVE TO SPECIAL EVENTS. Council Member Lambert stated that he has been advised by the City Attorney that he has a disqualifying conflict of interest on this agenda item and he excused himself from the meeting by signing off.
Community & Economic Development Director Elms presented the staff report.
There were differing opinions amongst Council on this item. They discussed the current policy in place and how this amendment would benefit future community events but may also open a door to a slippery slope of the City getting involved in funding more events than those grandfathered in to the current ordinance in place. A discussion of costs of staff time to continue researching pros and cons of such waivers for particular events was brought up and how it's also very time consuming to continue circling around the issue.
Fees associated with the various major community events was discussed and how the event in question is surpassing the fees that have normally been waived in the past.
Mayor Faria asked for City Clerk Mallonee to read any comments she received into the record for which Finance Director Williams stated she would read the comments because City Clerk Mallonee was having technical difficulties. KA THY BALLARD, submitted an email regarding the item in question and suggests placing a certain dollar amount for waived fees, especially for those events that have been around for many years. This event is more than just a parade - it is an all-day event requiring much more than just street closures.
Motion by Faria, seconded by Jones to authorize the waiver of departmental service charges relative to the Fourth of July Celebration for the Los Banos Downtown Association and to not amend the current policy. The motion carried by the following roll call vote: AYES: Jones, Llamas, Faria; NOES: Lewis; ABSTAIN: Lambert; ABSENT:
None.
Council Member Lambert rejoined the City Council Meeting.
ADVISEMENT OF PUBLIC NOTICES (ONE REPORT). Community & Economic Development Director Elms stated that there will be a public hearing at the Planning Commission Meeting on December 22, 2021 to consider a Categorical Exemption from the California Environmental Quality Act (CEQA) for a Cottage Food Operation for Kara Gomes dba Special Treats LLC at 648 Pinelli Drive, APN 431-300-047.
CITY MANAGER REPORT. City Manager Pinheiro spoke to various City events that have gone on in the last couple of weeks and he thanked all those organizations for putting on events like this for the community. He thanked the various school bands for coming out and playing some music pieces for the community as well. He spoke to mixer that will be hosted by Keller Williams Property Team in the near future. He thanked Assistant Fire Chief Strauch for all the work he has provided to the City and congratulated him on his retirement. He also recognized Council Member Lewis for providing nine years of service this month and Council Member Jones for providing three years of service on 27 the Council this month. He noted that Mayor Faria's birthday was on December 6 and wished him a happy belated birthday. Santa Claus will be traveling around the City on a fire engine in the next few weeks and he encouraged the community to check out the scheduled route so they do not miss him. He further celebrated and thanked all those City employees who have a birthday or work anniversary this month.
REPORT/UPDATE ON MERCED COUNTY ASSOCIATION OF GOVERNMENTS (MCAG), PENINSULA CLEAN ENERGY (PCE), AND MEASURE V COMMITTEE.
Mayor Faria reminded all that Sandra Benetti is the public outreach representative with PCE for Los Banos and can provide information on the migration to clean energy beginning in April. He spoke to how he recently found out that some local dairies are producing clean energy through agricultural means such as waste coming from these dairies. At the next MCAG meeting, Mayor Faria intends on asking if there's a way to locate grant writers in order to find more money for the West side and the County overall.
CITY COUNCIL MEMBER REPORTS.
REFUGIO LLAMAS: Council Member Llamas thanked the Chamber of Commerce for putting on the Christmas Parade. He spoke to how the veterans dinner was good and how there was a great turnout. He thanked Assistant Fire Chief Strauch for his years of service and further thanked all the City staff for the work they provide.
BRETT JONES: No report.
KENNETH LAMBERT: Council Member Lambert expressed his gratitude for Police Chief Brizzee and Fire Chief Hurley and all of their staff for working diligently through the holidays.
DEBORAH LEWIS: Council Member Lewis thanked her district constituents and all other citizens in the community for their kindness when they reach out to her for assistance with an issue or with questions. She spoke to and showed an award that Mid Valley Disposal presented to the City for its prompt and early implementation of a Senate Bill going into effect in January 2022 regarding the reduction of organic waste in our landfills. She spoke to the Christmas Parade and the Breakfast with Santa event that occurred and specially thanked the Public Works staff for all the work that they did for the breakfast event. Lastly, it was noted how there is money out there and available through the San Joaquin Air Quality Control Board for various things such as trading in older cars for new cleaner cars and replacing wood fireplace inserts for electric or gas inserts. She wished all a Merry Christmas and Happy New Year.
MAYOR TOM FARIA: Mayor Faria stated that he was called out earlier in the meeting for using a coffee cup that didn't have a very nice word on it and so he won't be using it again during a council meeting. He spoke to the venison meat he marinated and shared with some folks who helped put on the Breakfast with Santa event. He congratulated Assistant Fire Chief Strauch on his retirement and thanked him for his service.
CLOSED SESSION - CONFERENCE WITH REAL PROPERTY NEGOTIATIONS, PURSUANT TO GOVERNMENT CODE SECTION 54956.8; PROPERTY LOCATED AT 28 610 PACHECO BOULEVARD, LOS BANOS, CALIFORNIA. APPROXIMATELY 0.296 ACRES (APN 026-121-006); CITY NEGOTIATORS: CITY MANAGER PINHEIRO, CITY
ATTORNEY VAUGHN, COMMUNITY & ECONOMIC DEVELOPMENT DIRECTOR ELMS: NEGOTIATING PARTIES: SYBIL A. BALATTI TRUSTEE; UNDER NEGOTIATION: PURCHASE PRICE AND TERMS OF SALE. Mayor Faria stated that by a 5-0, City Council authorized the City Manager to sign a purchase and sale agreement for the purchase of approximately .296 acres located at 610 Pacheco Boulevard at a purchase price of $170,500 subject to a 60 day due diligence period.
ADJOURNMENT. Motion by Lewis, seconded by Llamas, the meeting was adjourned at 8:55 p.m. The motion carried by the following roll call vote: AYES: Jones, Lambert, Lewis, Llamas, Mayor Faria; NOES: None; ABSENT: None.
APPROVED:
Manuel Thomas Faria Ill, Mayor
ATTEST:
Lucille L. Mallonee, City Clerk
29 30
LOsBanos
Agenda Staff Report
TO: Mayor Faria and City Council Members
FROM: William A Vaughn, City Attorney
DATE: January 19, 2022
TYPE OF REPORT: Consent Agenda
SUBJECT: Continuation of Virtual Meetings - Per AB 361
RECOMMENDATION
Adopt Resolution No. __ _
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LOS BANOS
REAUTHORIZING REMOTE TELECONFERENCE MEETINGS OF THE LEGISLATIVE BODIES OF THE CITY OF LOS BANOS PURSUANT TO THE PROVISIONS OF AB 361
BACKGROUND
California's Ralph M. Brown Act has been amended to allow fully virtual public meetings during a state of emergency after the Governor signed Assembly Bill 361 into law on September 16, 2021 .
DISCUSSION
The new law comes as local public agencies were preparing for the expiration of Executive Orders that currently allow virtual public meetings. AB 361 goes into effect immediately, and it amends Section 54953 of the Brown Act to allow virtual public meetings through January 1, 2024 in any of the following circumstances:
ITEM 8C
31 1. The legislative body holds a meeting during a proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing.
2. The legislative body holds a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
3. The legislative body holds a meeting during a proclaimed state of emergency and has determined, by majority vote, that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
These circumstances allow agencies to hold entirely virtual public meetings during the current pandemic, while California is in a proclaimed state of emergency.
The previous teleconference rules under the Brown Act also remain in place, but are not as flexible (for instance each teleconference location must be identified in the agenda and the teleconference location must be accessible by the public).
If a City Council or City Commission meeting is held virtually under the new provisions of AB 361, the agenda must still be posted under the appropriate timelines:
72 hours in advance for a regular meeting, and 24 hours in advance for a special City Council meeting. The agenda must include the meeting link or dial-in, so that members of the public may access the meeting. Members of the public must be allowed to address the City Council or City Commission in real-time during the meeting. In addition to the real-time public comments; the City can continue to allow public comments to be submitted in advance.
AB 361 also has special provisions for technical glitches. In the event the meeting broadcast is disrupted, or if a technical issue on the agency's end disrupts public comment, the City Council cannot take any further action on the agenda until the technical issue is resolved.
Most significantly, in order to continue to hold virtual meetings when a state of emergency remains active, the City Council must make findings every 30 days that 1) the City Council has reconsidered the circumstances of the state of emergency and 2) the state of emergency continues to directly impact the ability of the members to meet safely in person or state or local officials continue to impose or recommend measures to promote social distancing.
The City Council previously adopted a Resolution 6405, on October 6, 2021, finding that the requisite conditions exist for the legislative bodies of the City of Los Banos to conduct remote teleconference meetings without compliance with paragraph (3) of subdivision (b) of section 54953. Those conditions have not changed and continue to exist. In fact, on November 10, 2021, Governor Gavin Newsom signed Executive Order N-21-21 which extended through March 31, 2022, the state of emergency in California related to the threat of COVID-19. And on January 5, 2022 as mitigation for the 32 Omicron variant, the California Department of Public Health (CDPH) extended the requirement that masks to be worn by all employees in all indoor public settings, irrespective of vaccine status, through February 15, 2022. Staff is recommending that the City Council reauthorize remote teleconference meetings of the legislative bodies of the City of Los Banos pursuant to the provisions of AB 361 by adoption of the attached Resolution.
FISCAL IMPACT
None.
CONCLUSION
Staff is recommending that for the time being City Council meetings continue to be held virtually pursuant to and under the requirements of AB 361 as ~~ lned above.
Reviewed by:
( ' ~ \ ,l,t \ ;U,Q~ ya WiTlia ,
Finance Direcor
t 1 /
Josh/ ~i
City/Manager
I
I
33 34
RESOLUTION NO. ---
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LOS BANOS
REAUTHORIZING REMOTE TELECONFERENCE MEETINGS OF THE
LEGISLATIVE BODIES OF THE CITY OF LOS BANOS PURSUANT TO THE PROVISIONS OF AB 361
WHEREAS, all meetings of the City of Los Banos' legislative bodies are open and public, as required by the Ralph M. Brown Act (Cal. Gov. Code 54950 - 54963), so that any member of the public may attend, participate, and watch the City's legislative bodies conduct their business; and
WHEREAS, on September 16, 2021 Governor Gavin Newsom signed into law AB 361, extending the authority of public agencies to conduct meetings by teleconference, including video conference, during the COVID-19 pandemic; and WHEREAS, in light of the on-going pandemic, AB 361 amends the Brown Act (specifically Government Code section 54953) and gives public agencies the option to continue meeting virtually under certain circumstances; and WHEREAS, Government Code section 54953(e), makes provisions for remote teleconferencing participation in meetings by members of a legislative body, without compliance with the requirements of Government Code section 54953(b)(3), subject to the existence of certain conditions; and
WHEREAS, a required condition is that a state of emergency is declared by the Governor pursuant to Government Code section 8625, proclaiming the existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions as described in Government Code section 8558; and WHEREAS, it is further required that state or local officials have imposed or recommended measures to promote social distancing, or, the legislative body meeting in person would present imminent risks to the health and safety of attendees; and WHEREAS, the City Council previously adopted a Resolution 6405, on October 6, 2021, finding that the requisite conditions exist for the legislative bodies of the City of Los Banos to conduct remote teleconference meetings without compliance with paragraph (3) of subdivision (b) of section 54953; and
WHEREAS, as a condition of extending the use of the provisions found in section 54953(e), the City Council must reconsider the circumstances of the state of emergency that exists in the City of Los Banos, and the City Council has done so; and WHEREAS, such conditions continue to exist in the City of Los Banos; and 35 WHEREAS, Governor Gavin Newsom declared a statewide emergency over the COVID-19 pandemic on March 4, 2020; and
WHEREAS, on June 17, 2021, Cal/OSHA issued new emergency temporary standards (ETS) on COVID-19 infection prevention for the workplace (subsequently revised on December 16, 2021). The regulations require all individuals at City worksites to abide by certain rules, including wearing face coverings and socially distancing; and WHEREAS, on November 10, 2021, Governor Gavin Newsom signed Executive Order N-21-21 which extended through March 31, 2022, the state of emergency in California related to the threat of COVID-19.
WHEREAS, on January 5, 2022 as mitigation for the Omicron variant, the California Department of Public Health (CDPH) extended the requirement that masks to be worn by all employees in all indoor public settings, irrespective of vaccine status, through February 15, 2022.
WHEREAS, as a consequence of the declared statewide emergency; the guidance and orders of the State Public Health Officer; and the Cal/OSHA temporary standards (ETS) on COVID-19 infection prevention for the workplace, the Los Banos City Council does hereby find that the legislative bodies of the City of Los Banos shall continue to conduct their meetings without compliance with paragraph (3) of subdivision (b) of Government Code section 54953, as authorized by subdivision (e) of section 54953, and that such legislative bodies shall comply with the requirements to provide the public with access to the meetings as prescribed in paragraph (2) of subdivision (e) of section 54953; and
NOW THEREFORE, the CITY COUNCIL OF THE CITY OF LOS BANOS, DOES HEREBY RESOLVE, DECLARE, DETERMINE and ORDER AS FOLLOWS:
Section 1. Recitals. The Recitals set forth above are true and correct and are incorporated into this Resolution by this reference.
Section 2. Affirmation. The City Council hereby finds that the requisite conditions exist for the legislative bodies of the City of Los Banos to conduct remote teleconference meetings without compliance with paragraph (3) of subdivision (b) of section 54953.
Section 3. Remote Teleconference Meetings. The City Manager, the Management Staff, and legislative bodies of the City of Los Banos are hereby authorized and directed to take all actions necessary to carry out the intent and purpose of this Resolution including, conducting open and public meetings in accordance with Government Code section 54953(e) and other applicable provisions of the Brown Act.
Section 4. Effective Date of Resolution. This Resolution shall take effect immediately upon its adoption and shall be effective until the earlier of (i) 30 days from adoption, or such time the City Council adopts a subsequent resolution in accordance with 36 Government Code section 54953(e)(3) to extend the time during which the legislative bodies of City of Los Banos may continue to teleconference without compliance with paragraph (3) of subdivision (b) of section 54953.
The foregoing resolution was introduced at a regular meeting of the City Council of the City of Los Banos held on the 19th day of January 2022, by Council Member _____ who moved for its adoption, which motion was duly seconded by Council Member ____ __ , and the Resolution was adopted by the following vote:
AYES:
NOES:
ABSENT:
APPROVED:
Manuel Thomas Faria, Ill, Mayor
ATTEST:
Lucille L. Mallonee, City Clerk
37 38
LOsBanos
At the Crossroads of Cal(fornia
Agenda Staff Report
TO: Mayor & City Council Members
FROM: Mason Hurley, Fire Chief@
DATE: January 19, 2022
SUBJECT: Measure P Citizens Oversight Committee
TYPE OF REPORT: Consent Agenda
Recommendation:
It is recommended that Council approve the attached Resolution approving the reappointment of Mark Bodley and Tim McNally to the Measure P Citizens Oversight Committee.
Background:
Ordinance No. 1020 (Measure P) established a seven (7) member Citizens Oversight Committee to represent the community and to insure that Measure P monies are expended as specified in the Ordinance.
The Ordinance also requires the Fire Chief and Police Chief to submit Committee Member names to the City Council for ratification.
Discussion:
The City advertised in the local newspaper for persons interested in serving on the Measure P Citizens Oversight Committee. Staff received requests from current Committee Members Mark Bodley and Tim McNally requesting re-appointment to the Measure P Committee to serve an additional term. It has been past practice to appoint members to an additional term when requested.
ITEM 8D
39 Chief Brizzee and I are both in agreement with the re-appointment of Mark Bodley and Tim McNally to serve an additional term.
Fiscal Impact:
No Fiscal Impact.
Josh Pj eiro,
Attachments:
Ordinance 1020
Resolution
Staff report - Measure P Committee (01-19-22).doc
40 ORDINANCE NO. 1020
AN ORDINANCE OF THE PEOPLE OF THE CITY OF LOS BANOS,
CALIFORNIA, AMENDING TITLE 3, "REVENUE AND FINANCE," OF THE LOS BANOS MUNICIPAL CODE BY ADDING CHAPTER 12.1, "LOS
BANOS POLICE, FIRE, PUBLIC SAFETY/911 SPECIAL TRANSACTIONS (SALES) AND USE TAX," TO THE LOS BANOS MUNICIPAL CODE
The People of the City of Los Banos do ordain as follows:
Section 1. AMENDMENT TO CODE. Title 3, "Revenue and Finance," of the Los Banos Municipal Code is hereby amended by the addition of Chapter 12.1, "LOS BANOS POLICE, FIRE, PUBLIC SAFETY/911 SPECIAL TRANSACTIONS (SALES) AND USE TAX" to read as follows:
"CHAPTER 12.1"
Los Banos Police, Fire, Public Safety/911 Special Transactions (Sales) and Use Tax Sections: ·
3-12.1.005
3-12.1.010
3-12.1.020
3-12.1.030
3-12.1.040
3-12.1.050
3-12.1.060
3-12.1.070
3-12.1.080
3-12.1.090
3-12.1.100
3-12.1.110
3-12.1.120
3-12.1.130
3-12.1.140
3-12.1 .150
3-12.1.160
3-12.1.170
3-12.1.180
3-12.1.190
3-12.1.200
3-12.1.210
3-12.1.220
3-12.1.230
Chapter Title
Purposes
Operative Date
Special Transactions (Sales) Tax
Special Use Tax
Citizens Oversight Committee
Account and Report
Maintenance of Effort
Revenue Distribution
Disposition of Monies Collected; Expenditure Plan
Advancement of Funds
Specially-Funded Personnel and Purchases Authorization
State Requirements
Contract with State
Place of Sale
Additional Permits Not Required
Adoption of Provisions of State Law - Generally
Adoption of Provisions of State Law - Limitations
Exemptions and Exclusions
Amendments to State Law
Non-Exclusivity
Enjoining Collection Forbidden
Authority to Amend
Termination Date
3-12.1.005 Chapter Title. This Chapter shall be known as the "'LOS BANOS POLICE, FIRE, PUBLIC SAFETY/911 SPECIAL TRANSACTIONS (SALES) AND USE TAX," (the 'Act'). This Chapter shall be applicable in the incorporated territory of the City.
3-12.1.010 Purposes. The People of the City of Los Banos declare that this Chapter is adopted ·tor the special ·purpose of funding additional public safety personnel, supplies and services, capital outlay items, equipment, facilities and technology improvements over the term of the tax imposed under this Chapter and paying for all incidental costs of operating this special transactions (sales) and use tax program, including administration and collections costs reimbursable to the State Board of Equalization, with any unused revenue committed to police and firefighting equipment and services.
3-12.1.020 Operative Date. This Chapter shall be effective ten (10) days after certification by the City Council of the returns of the election indicating approval by .voters by a two-thirds margin of the Ordinance enacting this Chapter, and the special transactions (sales) and use tax imposed hereunder shall be operative the first day of the first calendar quarter commencing more than 110 days after the adoption of this Chapter. Based on a November 2, 2004 election, the special transactions (sales) and use tax imposed hereunder shall be operative April 1, 2005. Upon notice 41 to the State Board of Equalization, as required by law, this Chapter may be suspended, and all funding related thereto stopped, if the revenue generated under this Chapter is diverted by the State of California for purposes other than those specifically enumerated herein.
3-12.1.030 Special Transactions (Sales) Tax. For the privilege of selling tangible personal property at retail, a tax is hereby imposed upon all retailers in the incorporated territory of the City at the rate of one-half of one percent (0.50%) of the gross receipts of any retailer from the sale of all tangible personal property sold at retail in said territory on and after April 1; 2005.
3-12.1.040 Special Use Tax. An excise tax is hereby Imposed on the storage, use, or other consumption in the City of tangible personal property purchased from any retailer for storage, use, ·or other consumption in the City at the rate of one-half of one percent (0.50%) of the sales price of the property sold on and after April 1, 2005. The sales price shall include delivery charges when such charges are subject to the State sales or use tax regardless of the place to which delivery is made. 3-12.1.050 Citizens Oversight Committee.
A. Pursuant to the Act, there is hereby created a Los Banos Police, Fire, Public Safety/911 Special Transactions (Sales) and Use Tax Citizens Oversight Committee to review the revenues and expenditures generated and spent under this Chapter.
B. Said Committee shall consist of seven (7) members. The Police and Fire Chiefs shall together nominate each committee member. Nominees shall be appointed by motion of the City Council adopted by majority vote.
C. Membership to the Committee shall be restricted to individuals who are registered voters within the City of Los Banos. Elected officials at any level of government and employees of the City of Los Banos are ineligible to serve as members of the Committee.
D. The members so appointed shall serve without compensation for a term of three (3) years. Except that members of the first/original Committee shall have staggered tenures. Two members will be appointed to a one-year term, two members will be appointed to a two-year te.rin and three members will be appointed to a three-year term. All subsequent appointments will be for a threeyear term.
E. The Committee shall review the revenues and expenditures generated .and spent under this Chapter, and provide its findings to the City Council for approval, in the form of two semi-annual reports, one report (including fourth quarter information), shall be submitted no later than October 1st of each year. Unless modified by City Council Resolution, the Committee shall not have any function, · power, or authority other than those expressly provided herein.
The Committee shall meet semi-annually or as often as it deems necessary to accomplish the objectives stated in this Chapter.
3-12.1.060 Account and Report. Prior to the adoption of the City budget in June of each year, the City Manager and the Finance Officer shall present to the City Council an account of the tax revenues received and expenditures made under this Chapter, and the funds remaining in the accounts established for their respective purposes hereunder. Concurrent with the annual account presentation, the City Manager and Finance Officer shall also report to the City Council that no funds received under this Chapter were spent for purposes other than those authorized by this Chapter.
3-12.1.070 Maintenance of Effort. Notwithstanding any provision to the contrary, revenues received under this Chapter shall not be used to replace general fund expenditures for normal operations at the previous years' levels, nor shall revenues received under this Chapter be used to fund, supplant, or supplement the salaries and benefits of existing personnel or other positions not created under this Chapter. 42 3-12.1.080 Revenue Distribution. Net revenues received under Section 3-
12.1.090 shall be distributed as follows:
A. Tax proceeds sufficient to hire 3 additional firefighter/emt's in year one and 3 additional firefighter/emt's in year two for a total of 6 firefighter/emfs which shall include start up equipment and protective gear not to exceed $4,000 per firefighter, salaries and benefits, merit based wage increases, and up to a 2% annual cost of living adjustment as negotiated per labor agreements and rank adjustments in year two, transitioning 3 firefighters to the rank of Captain to accommodate span of control and training needs.
B. Tax proceeds sufficient to hire 2 additional sworn police officers in year one and 1 additional sworn police officer in year twelve for a total of 3 sworn police officers which shall include start up equipment and protective gear not to exceed $4,000 per officer, salaries and benefits, merit based wage increases, and up to a 2% annual cost of living adjustment as negotiated per labor agreements and 2 police cruisers. ·
C. Tax proceeds sufficient to hire additional support _police staff as follows; 1 additional commu.nity services officer in year one and 1 additional community services officer iri year eighteen and 1 additional police crime analyst in year three which shall include salaries and benefits, merit based wage incr~ases, and up to a 2% annual cost of living adjustment as negotiated per labor agreements.
D. Tax proceeds will be collected for police and fire fcicility upgrades and new construction of police, jail, fire and related training facilities. Police facility funding starts at $450,000 per year in year two, and Increases by a 2% cost of living adjustment annually. Fire facility funding starts at $200,000 per year in year three, and increases by a 2% cost of living adjustment annually.
E. Tax proceeds not to exceed $90,000 in year one and $90,000 in year two will be utilized for specialty fire safety equipment including but not limited to upgrades to "SCBA" breathing apparatus.
F. Tax proceeds will be utilized to acquire and support 911/dispatch capabilities to dispatch emergency and routine police and fire calls through a mobile display computerized process, After initial acquisition of the mobile display dispatch system $100,000 will be allocated in year two and each year thereafter with a 2% cost · of living adjustment to support this process and to fund additional technology, equipment, and vehicle upgrades.
3-12.1.090 Disposition of Monies Collected; Expenditure Plan. After deduction of all incidental costs of operating this special transactions (sales) and use tax program, including, but not limited to, administration and collection costs reimbursable to the State Board of Equalization, and in accordance with the distribution allocation set forth In Section 3-12.1.080, all remaining monies collected under and pursuant to the provisions of this Chapter shall not be deposited into the City's general fund, but shall, instead, be deposited and paid into a special account of the City, which is hereby established, and earmarked for the purposes as outlined section 3s12.1.080, and which shall be paid only from the revenues of this account and not from the City's general fund.
Additional funds [after allocating funds as outlined in section 3-12.1.080) will be allocated to augment public safety services. Additional manpower, equipment, services and supplies, capital outlay items and facility needs will be submitted by the police and fire chiefs to the oversight committee and the committee will make funding suggestions to the city manager and City Council. The City Council will then approve and authorize additional expenditures to the benefit of public safety services.
The balance on this special account shall earn interest, which shall be deposited back into the account.
43 3-12.1.100 Advancement of Funds. The City Council, at its sole and complete discretion, may advance funds from the City's general fund into the special account, established in section 3-12.1.090, in order to accomplish the objectives of this Chapter. Any advancement from the City shall be reimbursed by the special account, to the City, with interest calculated at the same rate 'the City receives in its Investment portfolio during the time of the advancement, within twenty-four (24) months of the date of the advance.
3-12.1.110 Specially-Funded Personnel and Purchases Authorization.
Pursuant to the purposes and intent of this Chapter, the hiring of additional personnel and purchases necessary to accomplish the goals of this Chapter are hereby authorized. The City Manager is directed to create a system to designate and classify the employees hired and supplies and services and capital outlay purchases made from the tax revenue generated under this Chapter, as SpeciallyFunded Personnel, Supplies and Services, and Capital Outlay Items, so that City general fund expenditures for public safety are not reduced or avoided. 3-12.1.120 State Requirements. Pursuant to the requirements of the State Board of Equalization, this Chapter is adopted to achieve the following, among other purposes, and directs that the provisions hereof be interpreted in order to accomplish those purposes:
A. To impose a retail transactions (sales) and use tax in accordance with the provisions of Part 1.6 (commencing with Section 7251) of Division 2 of the Revenue and Taxation Code and Section 7285.91 of Part 1.7 of Division 2 which authorizes the City to adopt this tax ordinance which shall be operative if a 2/3 majority of the electors voting on the measure vote to approve the imposition of the tax at an election called for that purpose.
B. To adopt a retail transactions (sales) and use tax ordinance that incorporates provisions identical to those of the Sales and Use Tax Law of the State of California insofar as those provisions are not inconsistent with the requirements and limitations contained in Part 1.6 of Division 2 of the Revenue and Taxation Code.
C. To adopt a retail transactions (sales) and use tax ordinance that imposes a tax and provides a measure therefore that can be administered and collected by the State Board of Equalization in a manner that adapts itself as fully as practicable to, and requires the least possible deviation from, the existing statutory and administrative procedures followed by the State Board of Equalization in administering and collecting the California State Sales and Use Taxes.
D. To adopt a retail transactions (sales) and use tax ordinance that can be administered in a manner that will be, to the greatest degree possible, consistent with the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code, minimize the cost of collecting the transactions (sales) and use taxes, and at the same time, minimize the burden of record keeping upon persons subject to taxation under the provisions of this Chapter.
3-12.1.130 Contract with State. Prior to the operatiye date of this Chapter, as required by State law, the City shall contract with the State Board of Equalization to perform all functions incident to the administration and operation of the special transactions (sales) and use tax imposed under this Chapter; provided, however, that if the City shall not have contracted with the State Board of Equalization prior to the operative date of this Chapter, the City shall nevertheless so contract and in such case the operative date of the special sales tax shall be the first day of the first calendar quarter following the execution of such contract. 3-12.1.140 Place of Sale. For the purposes of this Chapter, all retail sales are consummated at the place of business of the retailer, unless the tangible personal property sold is delivered by the retailer, or his or her agent, to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. The gross receipts from such sales shall include delivery charges, when such charges are subject to the State sales and use tax, regardless of the place to which delivery is made. In the event a retailer has no permanent place of business in the State, or 44 has more than one place of business, the place or places at which retail sales are consummated shall be determined under the rules and regulations to be prescribed and adopted by the State Board of Equalization.
3-12.1.150 Additional Permit Not Required. If a seller's permit has been Issued to a retailer under Section 6067 of the Revenue and Taxation Code, an additional seller's permit shall not be required by this Chapter.
3-12.1.160 Adoption of Provisions of State Law - Generally. Except as otherwise provided in this Chapter and except insofar as they are inconsistent with the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code, all of the provisions of Part 1 (commencing with Section 6001) of Division 2 of the Revenue and Taxation Code are hereby adopted and made a part of this ordinance as though fully set forth herein.
3-12.1.170 Adoption of Provisions of State Law - Limitations. In adopting the provisions of Part 1 of Division 2 of the Revenue and Taxation Code:
A. Wherever the State of California is named or referred to as the taxing agency, the name of this City shall be substituted therefore. However, the substitution shall not be made when:
1. The word 'State' is used as a part of the title of the State Controller, State Treasurer. State Board of Control, State Board of Equalization, State Treasury, or the Constitution of the State of California;
2. The result of thljjt substitution would require action to be taken by or against this City or any agency, officer, or employee thereof rather than by or against the State Board of Equalization, in performing the functions incident to the administration or operation of this Chapter.
3. In those sections, including, but not necessarily limited to sections referring to the exterior boundaries of the State of California, where the result of the substitution would be. to:
a. Provide an exemption from this special sales tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not otherwise be exempt from this tax while such sates, storage, use or other consumption remain subject to tax by the State under the provisions of Part 1 of Division 2 of the Revenue and Taxation Code, or;
b. Impose this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not be subject to tax by the State under the said provision of that code.
4. In Sections 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 or 6828 of the Revenue and Taxation Code.
B. The word 'City' shall be substituted for the word 'State' in the phrase 'retailer engaged in business in this State' in Sect.ion 6203 and in the definition of that phrase in Section 6203 of the Revenue and Taxation Code. 3-12.1.180 Exemptions and Exclusions.
A. There shall be excluded from the measure of the special transactions (sales) and use tax the amount of any sales tax or use tax imposed by the State of California or by any city, city and county, or county pursuant to the Bradley-Burns Uniform Local Sales and Use Tax Law or the amount of any State-administered transactions or use tax.
B. There are exempted from the computation of the amount of the special transactions (sales) tax the gross receipts from:
45 1. Sales of tangible personal property, other than fuel or petroleum products, to operators of aircraft to be used or consumed principally outside the county in which the sale is made and directly and exclusively in the use of such aircraft as common carriers of persons or property under the authority of the laws of this State, the United States, or any foreign government.
2. Sales of property to be used outside the City which is shipped to a point outside the City, pursuant to the contract of sale, by delivery to such point by the retailer or his agent, or by delivery by the retailer to a carrier for shipment to a consignee at such point. For the purposes of this paragraph, delivery to a point outside the City shall be satisfied: ·
a. With respect to vehicles (other than commercial vehicles) subject to registration pursuant to Chapter 1 (commencing with Section 4000) of Division 3 of the Vehicle Code, aircraft licensed in compliance with Section 21411 of the Public Utilities Code, and undocumented vessels registered under Division 3.5 (commencing with Section 9840) of the Vehicle Code by registration to an out-of-City address and by a declaration under penalty of perjury, signed by the buyer, stating that such address is, in fact, his or her principal place of residence; and b. With respect to commercial vehicles, by registration to a place of business out-of-City and declaration under penalty of perjury, signed by the buyer, that the vehicle will be operated from that address.
3. The sale of tangible personal property if the seller is obligated to furnish the property for a fixed price pursuant to a contract entered into prior to the operative date of this Chapter.
4. A lease of tangible personal property which is a continuing sale of such property, for any period of time for which the lessor is obligated to lease the property for an amount fixed by the lease prior to the operative date of this Chapter.
5. For the purposes of subparagraphs (3) and (4) of this Section, the sale or lease of tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised.
C. There are exempted from the special use tax imposed by this Chapter, the storage, use, or other consumption in this City of tangible personal property:
1. The gross receipts from the sale of which have been subject to a transactions tax under any state-administered transactions and use tax ordinance.
2. Other than fuel or petroleum products purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this State, the United States, or any foreign government. This exemption is in addition to the exemptions provided in Sections 6366 and 6366.1 of the Revenue and Taxation Code of the State of California.
3. If the purchaser is obligated to purchase the property for a fixed price pursuant to a contract entered into prior to the operative date of this Chapter.
4. If the possession of, or. the exercise of any right or power over, the tangi~le personal property arises under a lease which is a continuing purchase of such property for any period of time for which the lessee is obligated to lease the property for an amount fixed by a lease prior to the operative date of this Chapter.
46 5. For the purposes of subparagraphs (3) and (4) of this section, storage, use, or other consumption, or possession of, or exercise of any right or power over, tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised.
6. Except as provided in subparagraph (7), a retailer engaged in business in the City shall not be required to collect use tax from the purchaser of tangible personal property, unless the retailer ships or delivers the property into the City or participates within the City in making the sale of the property, including, but not limited to, soliciting or receiving the order, either directly or indirectly, at a place of business of the retailer in the City or through any representative, agent, canvasser, solicitor, subsidiary, or person in the City under the authority of the retailer.
7. A retailer engaged in business in the City' shall also include any retailer of any of the following: vehicles subject to registration pursuant to Chapter 1 (commencing with Section 4000) of Division 3
1 of the Vehicle Code, aircraft
licensed in compliance with Section 21411 of the Public Utilities Code, or undocumented vessels registered under Division 3.5 (commencing with Section 9840) of the Vehicle Code. That retailer shall be required to collect use tax from any purchaser who registers or licenses the vehicle, vessel, or aircraft at an address in the City.
D. Any person subject to use tax under this Chapter may credit against that tax any transactions tax or reimbursement for transactions tax paid to a district imposing, or retailer liable for a transactions tax pursuant to Part 1.6 of Division 2 of the Revenue and Taxation Code with respect to the sale to the person of the property the storage, use or other consumption of which is subject to the use tax. 3-12.1.190 Amendments to State Law. All amendments subsequent to the effective date of this Chapter to Part 1 of Division 2 of the Revenue and Taxation Code relating to sales and use taxes and which are not inconsistent with Part 1.6 and Part 1.7 of Division 2 of the Revenue and Taxation Code, and all amendments to Part 1.6 and Part 1.7 of Division 2 of the Revenue and Taxation Code, shall automatically become a part of this Chapter, provided however, that no such amendment shall operate so as to affect the rate of tax imposed by this Chapter. 3-12.1.200 Non-Exclusivity. The special sales tax levied under this Chapter is in addition to, not in lieu of, any and all other applicable taxes already in existence. 3-12.1.210 Enjoining Collection Forbidden. No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against the State or the City, or against any officer of the State or the City, to. prevent or enjoin the collection under this Chapter, of any tax or any amount of tax required to be collected hereunder.
3-12.1.220 Authority to Amend. In order to further the purposes and intent of this Chapter, the City Council is authorized to amend this Chapter in the following areas without a further vote of the People:
A. The composition of the Citizens Oversight Committee; B. Any change required by the State of California as a precondition to the collection of the special tax authorized hereunder; and,
C. The appropriateness to raise and increase, but not to decrease, the number of Specially-Funded Personnel Supplies and Services and Capital Outlay Items authorized under Section 3-12.1.110.
Notwithstanding any provision to the contrary, any proposed change to the tax rate or the disposition of the revenue generated under this Chapter shall be submitted to the "vote of the People."
47 3-12.1.230 Termination Date. The authority to levy the tax imposed by this ordinance shall not expire except upon repeal by the City Council. The City Council shall consider repeal of the special transactions (sales) and use tax at public hearings in year twenty and every ten years thereafter held for that purpose.
Section 2. EFFECTIVE DATE. This Ordinance relates to the levying and collecting of the City transactions (sales) and use tax shall be in full force and effect ten (10) days after the certification by the City Council of the election returns indicating passage of the Ordinance by two-thirds of the voters casting votes in the election.
Section 3. SEVERABILITY. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The People of the City of Los Banos hereby declare that they would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.
Section 4. PUBLICATION. The City Clerk is directed to cause a copy of this Ordinance to be published in the official newspaper at least once within fifteen (15) days after its approval by the voters.
APPROVED: The foregoing Ordinance was approved by the voters of the City of Los Banos at a special election held on the 2nd day of November 2004, by the following vote tally: Yes: 5,677; No: 1,607.
' CERTIFIED: The election results for the foregoing Ordinance was certified by the City Council of the City of Los Banos on the 1 yth day of November 2004, indicating passage of the Ordinance by two-thirds of the voters casting votes in the election.
ATTEST:
~,
Lucille
-oo.
L. Mallonee,
-£. ~
City Clerk
48 RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF LOS BANOS APPOINTING MEMBERS TO THE
MEASURE P CITIZENS OVERSIGHT COMMITTEE
WHEREAS, on November 2, 2004 the voters of the City of Los Banos by more than a two thirds margin approved the Los Banos Police, Fire, Public Safety/911 Special Transactions (Sales) and Use Tax known as "Measure P"; and WHEREAS, City Council Ordinance 1020 established a Citizens Oversight Committee to review the revenues and expenditures generated and spent under the Los Banos Police, Fire, Public Safety/911 Special Transactions and Use Tax; and WHEREAS, the Citizens Oversight Committee shall consist of seven (7) individuals who are registered voters within the City of Los Banos; and WHEREAS, the Police Chief and Fire Chief shall together nominate each committee member to be appointed by a motion of the City Council and adopted by majority vote; and
WHEREAS, the members so appointed shall serve without compensation for a term of three (3) years.
NOW, THEREFORE, BE IT RESOLVED that Mark Bodley and Tim McNally have been nominated by the Police Chief and Fire Chief to serve on the Los Banos Measure P Citizens Oversight Committee.
NOW, THEREFORE, BE IT FURTHER RESOLVED that the City Council of the City of Los Banos does hereby appoint the following individuals to serve on the Los Banos Measure P Citizens Oversight Committee:
Mark Bodley
Tim McNally
term ending December 31 , 2024
term ending December 31, 2024
The foregoing Resolution was introduced at a regular meeting of the City Council of the City of Los Banos held on the 19th day of January 2022, by Council Member ___ who moved its adoption, which motion was duly seconded by Council Member ___ and the Resolution adopted by the following vote:
AYES:
NOES:
ABSENT:
APPROVED:
Manuel Thomas Faria 111, Mayor
ATTEST:
Lucille L. Mallonee, City Clerk
49 50
TO:
FROM:
DATE:
Lityof B os .. anos
Ai the C,o · 10 uls oJ t:al,fm 111a
Agenda Staff Report
Mayor and City Council Members
Nichol Bowersox, P. E., Acting Public Works Director
January 19, 2022
rtclb
TYPE OF REPORT: Consent Agenda
SUBJECT: Resolution Authorizing the City Manager to Execute a Professional Services Agreement with Monument for Right-of-Way and Surveying Services for the Pioneer Road Widening Project
Recommendation:
That the City Council adopts the Resolution authorizing the City Manager to execute a Professional Services Agreement with Monument for Right-of-Way and Surveying Services for the Pioneer Road Widening Project. The Public Works Department will administer the Professional Services Contract for a not to exceed $254,484.55 for the Phase 2C - Project Approval/Environmental Document Phase.
Background:
The Pioneer Road Widening Project is an approximately 6.5 mile long design and construction of a 4-lane arterial road. This road is to be designed per City Standards and will include a 10-foot Bicycle/Pedestrian Sidewalk. The approximate location of the widening is from State Route 152/Merced College Signalized intersection, south to Pioneer Road, easterly along Pioneer Road to the Pioneer Road/Ward Road future intersection, then north along Ward Road to the State Route 152/Ward Road signalized intersection.
The City of Los Banos (City) selected Mark Thomas and Company, Inc. (MTCo) in 2020 to provide engineering services for the Phase 1 - Project Study Report-Project Development Support (PSR-PDS), Phase 2 - Project Approval and Environmental Document (PA&ED), and Phase 3 - Plans Specifications and Estimate (PS&E) for the Pioneer Road Widening Project. Mark Thomas completed Phase 1 - PSR-PDS. The MiniPreliminary Environmental Analysis Report (PEAR) prepared for the PSR-PDS anticipates an Initial Study/Mitigated Negative Declaration for California Environmental Quality Act (CEQA) and "Routine" Environmental Assessment/Finding of No Significant Impact for National Environmental Protection Act (NEPA). Mark Thomas's contract has been 51 ITEM 8E
amended to include Phase 2A - PA&ED: Engineering Services. The City has secured Highway Improvement Program (HIP) and Local Partnership Program (LPP) funds for the non-engineering design components of PA&ED and PS&E.
Currently, Westside Regional Measure V Funding has dedicated $8.65 million to the Pioneer Road Widening Project. This funding will take the project up to the construction phase.
Discussion:
The RFQ's goal was to select a qualified consulting firm to support Mark Thomas in providing Phase 2C - PA&ED: Right of Way and Surveying Services. The selected Phase 28 consultant shall have the ability to provide in-house services, or the capacity to sublet, land surveying, right-of-way engineering, and right-of-way appraisals and acquisitions.
The RFQ specifically requires that the consultant must be knowledgeable and experienced in field surveying and right-of-way acquisitions and appraisals.
The City of Los Banos released a Request for Qualifications (RFQ) for Environmental Clearance and Landscape Architecture Services for the Pioneer Road Widening Project on September 1, 2021. A Public Notice for RFQ was issued in the Merced Sun Star on September 1, 2021. The solicitation period was open for three weeks and SOQ's were due to the City by September 22, 2021. Two (2) firms, Monument and Overland Pacific & Cutler, Inc. submitted Statement of Qualifications (SOQs) for the project and both were determined as responsive to the requirements of the RFQ.
City staff and MTCo reviewed the SOQs and recommended moving forward with Monument. This agreement will authorize that Phase 2C - PA&ED: Right of Way and Surveying Services, be awarded for a not to exceed amount of $254,484.55.
Fiscal Impact:
The not to exceed amount of $254,484.55 for Phase 2 of the Engineering Services for the Pioneer Road Widening Project has been budgeted in the Fiscal Year 2021-2022 Adopted Budget Account 229-430-100-238, Technical Services. The City will be receiving 100% reimbursement from Mea ure V Regional Funds for this amount.
Josh Pin
J
Attachments:
Resolution
Professional Services Agreement with Exhibit A- Cost Proposal, Exhibit B- Scope of Services Insurance Certificate
Request for Qualifications (RFQ) without appendices
52 RESOLUTION NO. --
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF LOS BANOS AUTHORIZING THE CITY
MANAGER TO EXECUTE A PROFESSIONAL
SERVICES AGREEMENT WITH MONUMENT FOR
RIGHT-OF-WAY AND SURVEYING SERVICES
FOR THE PIONEER ROAD WIDENING PROJECT
WHEREAS, as Request for Qualifications was issued on September 1, 2021 to perform Engineering Services Right-of-Way and Surveying Services for the Pioneer Road Widening Project; and
WHEREAS, staff has reviewed the qualifications of each firm which submitted a proposal of the top two firms and negotiated the cost proposal with the firm being recommended; and
WHEREAS, the proposed Professional Services Agreement has been reviewed by the City Attorney and approved as to form; and
WHEREAS, this agreement approved the Phase 2C Scope and Phase 2C Cost of not to exceed $254,484.55.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Los Banos does hereby authorize the City Manager to execute a Professional Services Agreement with Monument for Right-of-Way and Surveying Services for the Pioneer Road Widening Project.
The foregoing Resolution was introduced at a regular meeting of the City Council of the City of Los Banos held on the 19th day of January 2022, by Council Member ___ who moved its adoption, which motion was duly seconded by Council Member ___ and the Resolution adopted by the following vote:
AYES:
NOES:
ABSENT:
APPROVED:
Manuel Thomas Faria Ill, Mayor
ATTEST:
Lucille L. Mallonee, City Clerk
53 54
PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF LOS BANOS
AND
MONUMENT FOR
RIGHT-OF-WAY AND SURVEYING SERVICES FOR
THE PIONEER ROAD WIDENING PROJECT
THIS AGREEMENT is made and entered into this_day of ________ ___,_ 2022, by and between the City of Los Banos, California, a municipal corporation, ("City,") and Monument, an enterprise ("Consultant").
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California.
B. City desires to engage Consultant as an independent contractor to provide professional engineering services for specific tasks associated with the Pioneer Road Widening Project.
C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement.
D. City desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
1. ~ The term of this Agreement shall commence upon the above written date and shall remain in effect until June 30, 2025, unless terminated earlier as set forth herein.
2. Project Descrjption, The Pioneer Road Widening Project is an approximately
6.5 mile long design and construction of a 4-lane arterial road. This road is to be designed per City Standards and will include a 10-foot Class I bike/pedestrian path. The location of the widening is from the State Route 152/Merced College signalized intersection, south to Pioneer Road, easterly along Pioneer Road to the Pioneer Road/Ward Road future intersection, then north along Ward Road to the Highway 152/Ward Road signalized intersection.
3. Statement of Work,
3.1 Consultant Services. Services to be performed by Consultant will include the following upon reasonable notice to Consultant.
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Provide consulting and professional services including right-of-way acquisitions and appraisals, right-of-way engineering, and land surveying and mapping services.
Provide cross-section surveys of existing roadway/corridor at 100-foot intervals.
Provide field topographic surveys of existing ground surface, surface-visible utilities, improvements, structures, and trees (6" diameter or larger).
Provide invert elevation, diameter, and orientation of accessible gravity 55 pipelines within the project corridor. Provide maps and mapping services as requested and as required by the project.
• Prepare a preconstruction record of survey in compliance with Section 8762 and Section 8771 of the Professional Land Surveyors' Act. It is assumed that no more than fifty (50) survey monuments will require preconstruction monument preservation. • Provide up to three (3) days of traffic control services to comply with encroachment permit requirements and provide for the safety of ground survey field crews.
• Perform right-of-way retracement.
• Perform required engineering support/documentation for the required right-of-way acquisition technical data/plans.
• Prepare right-of-way acquisition documents
• Update the right-of-way estimate
• Provide survey support of City sourced utility potholing ( option service)
3.2 Subsurface Investigations. City has responsibility for making subsurfa'ce investigations. If borings or other specialized services are to be made by others under the supervision of Consultant, appropriate provisions are to be incorporated. Archaeological testing and data recovery guidance can be found in the Standard Environmental Reference
3.3 Local Agency Obligations. All data applicable to the project and in possession of the City, another agency, or government agency that are to be made available to Consultant are referred to in the Agreement. Any other assistance or services to be furnished to Consultant are to be stated clearly.
3.4 Conferences, Site Visits, Inspections of Work. This Agreement provides for conferences as needed, visits to the site, and inspection of the work by representatives of the City, State, and/or FHWA. Costs incurred by Consultant for meetings, subsequent to the initial meeting shall be included in the fee.
3.5 Checking Shop Drawings. Payment for checking shop drawings by Consultant may be included in the Agreement fee, or provision may be made for separate payment
3.6 Documentation and Schedules. Agreements where appropriate, shall provide that Consultant document the results of the work to the satisfaction of City, and if applicable, the State and FHW A. This may include preparation of progress and final reports, plans, specifications and estimates, or similar evidence of attainment of the Agreement objectives.
3. 7 Deliverables and Number of Copies. The number of copies or documents to be furnished, such as reports, brochures, sets of plans, specifications, or Right of Way parcel maps shall be specified. Provision may be made for payment for additional copies.
3.8 Consultant shall provide such services when given written instruction to do so by the Public Works Director, or his designee. Consultant shall diligently perform all the services described in the Scope of Services.
3.9 All professional services shall be performed by Consultant or under Consultant's supervision. All professional services to be provided by Consultant pursuant to this Agreement shall be provided by personnel experienced in their respective fields and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional Consultants in accordance with sound professional practices.
4. Admjnjstratjon, The Public Works Director shall administer this Agreement on behalf of the City. The Public Works Director or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this 56 Agreement.
5. Consultant's Reports or Meetings. Consultant shall submit progress reports at least once a month. The report should be sufficiently detailed for the City's Contract Administrator to determine, if Consultant is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.
5.1 Consultant's Project Manager shall meet with City's Contract Administrator, as needed, to discuss progress on the Agreement.
6. Performance period. Upon receipt of written Notice to Proceed from the City, Consultant shall perform with due diligence the services requested by the city and agreed on by the Consultant. Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed.
6.1 This Agreement shall go into effect on December 1, 2021, contingent upon approval by City, and Consultant shall commence work after notification to proceed by City's Contract Administrator. The Agreement shall end on June 30, 2023, unless extended by Agreement amendment.
6.2 Consultant is advised that any recommendation for Agreement award is not binding on City until the Agreement is fully executed and approved by City.
6.3 Consultant is advised that any recommendation for contract award is not binding on City until the contract is fully executed and approved by the City.
7. AUowable Costs and payments, The Consultant's Cost Proposal is attached hereto (Exhibit A) and incorporated by reference. If there is any conflict between the approved Cost Proposal and this contract, this contract shall take precedence.Consultant will be reimbursed for hours worked at the hourly rates specified in Consultants Cost Proposal (Exhibit A).
These rates are not adjustable for the performance period set forth in this Contract.
Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed the approved budget during the term of this Agreement.
7.1 The method of payment for this Agreement will be based on actual cost plus a fixed fee. City will reimburse Consultant for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by Consultant in performance of the work. Consultant will not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved Consultant's Cost Proposal, unless additional reimbursement is provided for by Agreement amendment. In no event, will Consultant be reimbursed for overhead costs at a rate that exceeds City's approved overhead rate set forth in the Cost Proposal. In the event, that City determines that a change to the work from that specified in the Cost Proposal and Agreement is required, the Agreement time or actual costs reimbursable by City shall be adjusted by Agreement amendment to accommodate the changed work. The maximum total cost as specified in Paragraph 7.11 of this Article shall not be exceeded, unless authorized by Agreement amendment.
7.2 The indirect cost rate established for this Agreement is extended through the 57 duration of this specific Agreement. Consultant's agreement to the extension of the 1-year applicable period shall not be a condition or qualification to be considered for the work or Agreement award.
7.3 In addition to the allowable incurred costs, City will pay Consultant a fixed fee of $254,484.55. The fixed fee is nonadjustable for the term of the Agreement, except in the event of a significant change in the scope of work and such adjustment is made by Agreement amendment.
7.4 Reimbursement for transportation and subsistence costs shall not exceed the rates as specified in the approved Cost Proposal.
7.5 When milestone cost estimates are included in the approved Cost Proposal, Consultant shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such estimate.
7 .6 Progress payments will be made monthly in arrears based on services provided and allowable incurred costs. A pro rata portion of Consultant's fixed fee will be included in the monthly progress payments. If Consultant fails to submit the required deliverable items according to the schedule set forth in Article Ill Statement of Work, City shall have the right to delay payment or terminate this Agreement. Consultant shall not commence performance of work or services until this contract has been approved by the City, and notification to proceed has been issued by the City's Contract Administrator. No payment will be made prior to approval or for any work performed prior to approval of this contract.
7. 7 No payment will be made prior to approval of any work, nor for any work performed prior to approval of this Agreement.
7 .8 Consultant will be reimbursed promptly according to California Regulations upon receipt by City's Contract Administrator of itemized invoices in duplicate. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which Consultant is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this Agreement number and project title. Final invoice must contain the final cost and all credits due City including any equipment purchased under the provisions of Article XI Equipment Purchase. The final invoice should be submitted within sixty (60) calendar days after completion of Consultant's work. Invoices shall be mailed to City's Contract Administrator at the following address:
City of Los Banos, Nichol Bowersox, P.E., Acting Public Works Director 411 Madison Avenue, Los Banos, CA 93635
7 .9 The total amount payable by the City shall not exceed the amount agreed upon, unless authorized by contract amendment.
7 .1 0 If the Consultant fails to satisfactorily complete a deliverable according to the schedule, no payment will be made until the deliverable has been satisfactorilycompleted.
7.11 The total amount payable by City including the fixed fee shall not exceed $254,484.55.
7.12 For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable.
8. Cost Pciociples and Admjnjstratjye Requirements,
58 8.1 The Consultant agrees that 48 CFR Part 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.
8.2 The Consultant also agrees to comply with Federal procedures in accordance with 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
8.3 Any costs for which payment has been made to the Consultant that are determined by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 200 are subject to repayment by the Consultant to City.
8.4 When a Consultant or Subconsultant is a Non-Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
9. Retention of Records/Audits. For the purpose of determining compliance with Gov. Code§ 8546. 7, the Consultant, Subconsultants, and City shall maintain all books, documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the Agreement including, but not limited to, the costs of administering the Agreement. All parties, including the Consultant's Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the Agreement period and for three (3) years from the date of final payment under the Agreement. City, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) shall have access to any books, records, and documents of the Consultant, Subconsultants, and the Consultant's Independent CPA, that are pertinent to the Agreement for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.
1 o. Audit Reyjew Procedures.
10.1 Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by Agreement, shall be reviewed by City's Chief Financial Officer.
10.2 Not later than thirty (30) calendar days after issuance of the final audit report, Consultant may request a review by City's Chief Financial Officer of unresolved audit issues.
The request for review will be submitted in writing.
10.3 Neither the pendency of a dispute nor its consideration by City will excuse Consultant from full and timely performance, in accordance with the terms of this Agreement.
10.4 Consultant and subconsultant Agreements, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an Agreement audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review.
If selected for audit or review, the Agreement, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is Consultant's responsibility to ensure federal, City, or local government officials are allowed full access to the CPA's work papers including making copies as necessary. The Agreement, cost proposal, and ICR shall be adjusted by Consultant and approved by City Contract Administrator to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into the Agreement by this reference if directed by City at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the federal, City or local governments have access to CPA work papers, will be considered a breach of Agreement terms and cause 59 for termination of the Agreement and disallowance of prior reimbursed costs.
10.5 Consultant's Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the Consultant and approved by the City Contract Administrator to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the Consultant to incorporate the Work Paper Review recommendations included in the management letter or audit terms and cause for termination of the Agreement and disallowance of prior reimbursed costs.
a. During IOAl's review of the ICR audit work papers created by the Consultant's independent CPA, IOAI will work with the CPA and/or Consultant toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, City will reimburse the Consultant at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines}is received and approved by IOAI.
Accepted rates will be as follows:
1. If the proposed rate is less than one hundred fifty percent ( 150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate.
2. If the proposed rate is between one hundred fifty percent ( 150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate.
3. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.
b. If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require Consultant to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the Consultant's and/or the independent CPA's revisions.
c. If the Consultant fails to comply with the provisions of this Paragraph 10.5, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph 10.5.a. above for all rendered services.
In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this Agreement.
d. Consultant may submit to City final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this Agreement has been completed to the satisfaction of City; and, (3) IOAI has issued its final ICR review letter. The Consultant MUST SUBMIT ITS FINAL INVOICE TO City 60 no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this Agreement and all other agreements executed between City and the Consultant, either as a prime or subconsultant, with the same fiscal period ICR.
11. Sybcontractjng. Nothing contained in this Agreement or otherwise, shall create any contractual relation between the City and any Subconsultants, and no subagreement shall relieve the Consultant of its responsibilities and obligations hereunder.
The Consultant agrees to be as fully responsible to the City for the acts and omissions of its Subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the Consultant. The Consultant's obligation to pay its Subconsultants is an independent obligation from the City's obligation to make payments to the Consultant.
11.1 The Consultant shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the City Contract Administrator, except that which is expressly identified in the Consultant's approved Cost Proposal.
11.2 Any subagreement entered into as a result of this Agreement, shall contain all the provisions stipulated in this entire Agreement to be applicable to Subconsultants unless otherwise noted.
11.3 Consultant shall pay its Subconsultants within Fifteen ( 15) calendar days from receipt of each payment made to the Consultant by the City.
11.4 Any substitution of Subconsultants must be approved in writing by the City Contract Administrator in advance of assigning work to a substitute Subconsultant.
11.5 Prompt Payment. Consultant or subconsultant shall pay to any subconsultant, not later than fifteen ( 15) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed Consultant on account of the work performed by the subconsultants, to the extent of each subconsultant's interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from Consultant or subconsultant to a subconsultant, Consultant or subconsultant may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the subconsultant, of 2 percent of the amount due per month for every month that payment is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney's fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.
11.6 Prompt Payment of Withheld Funds to Subconsultants. The City may hold retainage from Consultant and shall make prompt and regular incremental acceptances of portions, as determined by the City, of the contract work, and pay retainage to Consultant based on these acceptances. The City shall designate one of the methods below in the contract to ensure prompt and full payment of any retainage kept by Consultant or subconsultant to a subconsultant.
No retainage will be held by the City from progress payments due to Consultant.
Consultants and subconsultants are prohibited from holding retainage from subconsultants. Any delay or postponement of payment may take place only for good cause and with the City's prior written approval. Any violation of these provisions shall subject the violating Consultant or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not 61 be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by Consultant, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non-DBE subconsultants.
Any violation of these provisions shall subject the violating Consultant or subconsultant to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by Consultant, deficient subcontract performance, or noncompliance by a subconsultant.
12. Equipment Purchase and Other Capjtal Expenditures. Prior authorization in writing by City's Contract Administrator shall be required before Consultant enters into any unbudgeted purchase order, or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or Consultant services. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs.
12.1 For purchase of any item, service, or consulting work not covered in Consultant's approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by City's Contract Administrator, three competitive quotations must be submitted with the request, or the absence of proposal must be adequately justified.
12.2 Any equipment purchased with funds provided under the terms of this Agreement is subject to the following:
a. Consultant shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of five thousand dollars ($5,000) or more. If the purchased equipment needs replacement and is sold or traded in, City shall receive a proper refund or credit at the conclusion of the Agreement, or if the Agreement is terminated, Consultant may either keep the equipment and credit City in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established City procedures; and credit City in an amount equal to the sales price. If Consultant elects to keep the equipment, fair market value shall be determined at Consultant's expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by City and Consultant, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by City.
b. Regulation 2 CFR Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars ($5,000) is credited to the project.
13. State Preyailjng Wage Rates. No Consultant or Subconsultant may be awarded an Agreement containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire term of this Agreement, including any subsequent amendments.
13.1 The Consultant shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this Agreement are available and on file with the Department of Transportation's Regional/District Labor Compliance Officer (https://dot.ca.gov/programs/construction/labor-compliance ). These wage rates are made a 62 specific part of this Agreement by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at City construction sites, at City facilities and at off-site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve City projects. Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.
13.2 General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations website at http://www.dir.ca.qov.
13.3 Payrolls.
a. Each Consultant and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the Consultant or Subconsultant in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
1. The information contained in the payroll record is true and correct.
2. The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project.
b. The payroll records enumerated under paragraph (a) above shall be certified as correct by the Consultant under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by City representatives at all reasonable hours at the principal office of the Consultant. The Consultant shall provide copies of certified payrolls or permit inspection of its records as follows:
1. A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request.
2. A certified copy of all payroll records enumerated in paragraph (1) above, shall be made available for inspection or furnished upon request to a representative of City, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to City, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the Consultant.
3. The public shall not be given access to certified payroll records by the Consultant. The Consultant is required to forward any requests for certified payrolls to the City Contract Administrator by both email and regular mail on the business day following receipt of the request. c. Each Consultant shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.
63 d. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by City shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the Consultant or Subconsultant performing the work shall not be marked or obliterated.
e. The Consultant shall inform City of the location of the records enumerated under paragraph (a) above, including the street address, city and county, and shall, within five (5) working days, provide a notice of a change of location and address.
f. The Consultant or Subconsultant shall have ten (10) calendar days in which to comply subsequent to receipt of written notice requesting the records enumerated in paragraph (a) above. In the event the Consultant or Subconsultant fails to comply within the ten (10) day period, he or she shall, as a penalty to City, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated.
Such penalties shall be withheld by City from payments then due. Consultant is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.
13.4 When prevailing wage rates apply, the Consultant is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the City Contract Administrator.
13.5 Penalty.
a. The Consultant and any of its Subconsultants shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the Consultant and any Subconsultant shall forfeit to the City a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of DIR for the work or craft in which the worker is employed for any public work done under the Agreement by the Consultant or by its Subconsultant in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.
b. The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the Consultant or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the Consultant or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the Consultant or Subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the Consultant or Subconsultant had knowledge of the obligations under the Labor Code. The Consultant is responsible for paying the appropriate rate, including any escalations that take place during the term of the Agreement.
c. In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Consultant or Subconsultant.
d. If a worker employed by a Subconsultant on a public works project is not paid the general prevailing per diem wages by the Subconsultant, the prime 64 Consultant of the project is not liable for the penalties described above unless the prime Consultant had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or unless the prime Consultant fails to comply with all of the following requirements:
1. The Agreement executed between the Consultant and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815.
2. The Consultant shall monitor the payment of the specified general prevailing rate of per diem wages by the Subconsultant to the employees by periodic review of the certified payroll records of the Subconsultant.
3. Upon becoming aware of the Subconsultant's failure to pay the specified prevailing rate of wages to the Subconsultant's workers, the Consultant shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaining sufficient funds due the Subconsultant for work performed on the public works project.
4. Prior to making final payment to the Subconsultant for work performed on the public works project, the Consultant shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified general prevailing rate of per diem wages to the Subconsultant's employees on the public works project and any amounts due pursuant to Labor Code §1813. e. Pursuant to Labor Code §1775, City shall notify the Consultant on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages.
f. If City determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if City did not retain sufficient money under the Agreement to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the Consultant shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by City.
13.6 Hours of Labor. Eight (8) hours labor constitutes a legal day's work. The Consultant shall forfeit, as a penalty to the City, twenty-five dollars ($25) for each worker employed in the execution of the Agreement by the Consultant or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) hours per day, and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less than one and one-half (1.5) times the basic rate of pay, as provided in §1815.
13. 7 Employment of Apprentices.
a. Where either the prime Agreement or the subagreement exceeds thirty thousand dollars ($30,000), the Consultant and any subconsultants under him or her shall comply with all applicable requirements of Labor Code §§ 65 1777.5, 1777.6 and 1777.7 in the employment of apprentices. b. Consultants and subconsultants are required to comply with all Labor Code requirements regarding the employment of apprentices, including mandatory ratios of journey level to apprentice workers. Prior to commencement of work, Consultant and subconsultants are advised to contact the DIR Division of Apprenticeship Standards website at https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices and for the specific journey-to- apprentice ratios for the Agreement work. The Consultant is responsible for all subconsultants' compliance with these requirements. Penalties are specified in Labor Code §1777.7.
14. Djsadyantaaed Business Enterprises CPBEl Partjcjpatjon.
14.1 Consultant, subrecipient (City), or subconsultant shall take necessary and reasonable steps to ensure that DB Es have opportunities to participate in the contract ( 49 CFR 26). To ensure equal participation of DBEs provided in 49 CFR 26.5, The City shows a contract goal for DBEs. Consultant shall make work available to DBEs and select work parts consistent with available DBE subconsultants and suppliers.
Consultant shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate good faith efforts to meet this goal. It is Consultant's responsibility to verify that the DBE firm is certified as DBE at date of proposal opening and document the record by printing out the California Unified Certification Program (CUCP) data for each DBE firm.
All DBE participation will count toward the California Department of Transportation's federally mandated statewide overall DBE goal. Credit for materials or supplies Consultant purchases from DBEs counts towards the goal in the following manner:
• 100 percent counts if the materials or supplies are obtained from a DBE manufacturer.
• 60 percent counts if the materials or supplies are purchased from a DBE regular dealer.
• Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49CFR26.55 defines "manufacturer" and "regular dealer." This Agreement is subject to 49 CFR Part 26 entitled "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs".
Consultants who enter into a federally-funded agreement will assist the City in a good faith effort to achieve California's statewide overall DBE goal.
14.2 The goal for DBE participation for this Agreement is 18%. Participation by DBE Consultant or subconsultants shall be in accordance with information contained in Exhibit 10- 02: Consultant Contract DBE Commitment attached hereto and incorporated as part of the Agreement. If a DBE subconsultant is unable to perform, Consultant must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
14.3 Consultant can meet the DBE participation goal by either documenting commitments to DBEs to meet the Agreement goal, or by documenting adequate good faith efforts to meet the Agreement goal. An adequate good faith effort means that the Consultant must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If Consultant has not met the DBE goal, complete and submit Exhibit 66 15-H: DBE Information - Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.
14.4 Contract Assurance Under 49 CFR 26.13(b ):
Consultant, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. Consultant shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts.
Failure by the Consultant to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to: withholding monthly progress payments; assessing sanctions; liquidated damages; and/or disqualifying Consultant from future proposing as non-responsible.
14.5 Termination and Substitution of DBE Subconsultants. Consultant shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless Consultant or DBE subconsultant obtains the City's written consent. Consultant shall not terminate or substitute a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without authorization from the City. Unless the City's consent is provided, the Consultant shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 10-02 Consultant Contract DBE Commitment form, included in the Bid.
The City authorizes a request to use other forces or sources of materials if Consultant shows any of the following justifications:
a. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.
b. The City stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the City's bond requirements. c. Work requires a consultant's license and listed DBE does not have a valid license under Contractors License Law.
d. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination). e. Listed DBE's work is unsatisfactory and not in compliance with the contract. f. Listed DBE is ineligible to work on the project because of suspension or debarment.
g. Listed DBE becomes bankrupt or insolvent.
h. Listed DBE voluntarily withdraws with written notice from the Contract i. Listed DBE is ineligible to receive credit for the type of work required. j. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract.
k. The City determines other documented good cause.
Consultant shall notify the original DBE of the intent to use other forces or material sources and provide the reasons and provide the DBE with 5 days to respond to the notice and advise Consultant and the City of the reasons why the use of other forces or sources of materials should not occur.
Consultant's request to use other forces or material sources must include:
67 a. One or more of the reasons listed in the preceding paragraph. b. Notices from Consultant to the DBE regarding the request. c. Notices from the DBEs to Consultant regarding the request.
If a listed DBE is terminated or substituted, Consultant must make good faith efforts to find another DBE to substitute for the original DBE. The substitute DBE must perform at least the same amount of work as the original DBE under the contract to the extent needed to meet or exceed the DBE goal.
14.6 Commitment and Utilization. The City's DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization. The City shall request Consultant to:
a. Notify the City's contract administrator or designated representative of any changes to its anticipated DBE participation.
b. Provide this notification before starting the affected work. c. Maintain records including: name and business address of each 1st-tier subconsultant; name and business address of each DBE subconsultant, DBE vendor, and DBE trucking company, regardless of tier; and date of payment and total amount paid to each business (see Exhibit 9-F Monthly Disadvantaged Business Enterprise Payment).
If Consultant is a DBE Consultant, they shall include the date of work performed by their own forces and the corresponding value of the work.
If a DBE is decertified before completing its work, the DBE must notify Consultant in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify Consultant in writing of the certification date. Consultant shall submit the notifications to the City. On work completion, Consultant shall complete a Disadvantaged Business Enterprises (DBE) Certification Status Change, Exhibit 17-0, form and submit the form to the City within 30 days of contract acceptance.
Upon work completion, Consultant shall complete Exhibit 17-F Final Report- Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors and submit it to the City within 90 days of contract acceptance. The City will withhold $10,000 until the form is submitted. The City will release the withhold upon submission of the completed form.
In the City's reports of DBE participation to Caltrans, the City must display both commitments and attainments.
14. 7 A DBE is only eligible to be counted toward the Agreement goal if it performs a commercially useful function (CUF) on the Agreement. CUF must be evaluated on an agreement by agreement basis. A DBE performs a Commercially Useful Function (CUF) when it is responsible for execution of the work of the Agreement and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the Agreement, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself. To determine whether a DBE is performing a CUF, evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the Agreement is commensurate with the work it is actually performing, and other relevant factors.
14.8 A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, Agreement, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not 68 participate.
14.9 If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its Agreement with its own work force, or the DBE subcontracts a greater portion of the work of the Agreement than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
14.1 O Consultant shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE Consultant's shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
14.11 If a DBE subconsultant is decertified during the life of the Agreement, the decertified subconsultant shall notify Consultant in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the Agreement, the subconsultant shall notify Consultant in writing with the date of certification. Any changes should be reported to City's Contract Administrator within thirty (30) calendar days.
14.12 After submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the following month, the prime contractor/consultant shall complete and email the Exhibit 9- F: Disadvantaged Business Enterprise Running Tally of Payments to [email protected] with a copy to the Agency.
14.13 Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this section.
15. lndemnjfication, When the law establishes a professional standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend, and hold harmless City and any and all of its officials, employees and agents from and against any and all losses, liabilities, damages, costs, and expenses, including legal counsel's fees and costs but only to the extent the Consultant (and its Sub consultants), are responsible for such damages, liabilities and costs on a comparative basis of fault between the Consultant (and its Sub consultants) and the City in the performance of professional services under this agreement.
Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, defend, and hold harmless City, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including legal counsel's fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or City for which Consultant is legally liable, including, but not limited to officers, agents, employees, or subcontractors of Consultant.
Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant.
In the event the City indemnities are made a party to any action, lawsuit, or other adversarial 69 proceeding arising from Consultant's performance of this agreement, the Consultant shall provide a defense to the City indemnities, or at the City's option, reimburse the City indemnities their costs of defense, including reasonable legal counsels' fees, incurred in defense of such claims.
16. Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein.
Insurance certificates must be approved by the City Attorney prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VI I ( or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City Attorney.
D. Coverage Requirements.
i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non-renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of nonpayment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City.
ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, the general aggregate limit shall be at least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000) per claim and not less than two million dollars ($2,000,000) in the annual aggregate.
70 E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language:
i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. v. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non-payment of premium) written notice has been received by City.
8.1 Consultant agrees that the bodily injury liability insurance herein provided for, shall be in effect at all times during the term of this Agreement. In the event said insurance coverage expires at any time or times during the term of this Agreement, Consultant agrees to provide at least thirty (30) calendar days prior notice to said expiration date; and a new Certificate of Insurance evidencing insurance coverage as provided for herein, for not less than either the remainder of the term of the Agreement, or for a period of not less than one ( 1) year. New Certificates of Insurance are subject to the approval of City. In the event Consultant fails to keep in effect at all times insurance coverage as herein provided, City may, in addition to any other remedies it may have, terminate this Agreement upon occurrence of such event.
8.2 Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which Consultant may be held responsible for payments of damages to persons or property.
8.3 All subconsultants shall be included as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of this Agreement, including adding the City as an Additional Insured to the subconsultant's policies.
17. Funding Regujrements. It is mutually understood between the parties that this Agreement may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the Agreement were executed after that determination was made.
17.1 This Agreement is valid and enforceable only if sufficient funds are made available to City for the purpose of this Agreement. In addition, this Agreement is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or City governing board that may affect the provisions, terms, or funding 71 of this Agreement in any manner.
17.2 It is mutually agreed that if sufficient funds are not appropriated, this Agreement may be amended to reflect any reduction in funds.
17.3 City has the option to terminate the Agreement pursuant to Article VI Termination, or by mutual agreement to amend the Agreement to reflect any reduction of funds.
18. Contjngent Fee. Consultant warrants, by execution of this Agreement that no person or selling agency has been employed, or retained, to solicit or secure this Agreement upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by Consultant for the purpose of securing business. For breach or violation of this warranty, City has the right to annul this Agreement without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the Agreement price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
19. Djspytes. Prior to either party commencing any legal action under this Agreement, the parties agree to try in good faith, to settle any dispute amicably between them. If a dispute has not been settled after forty-five (45) days of good-faith negotiations and as may be otherwise provided herein, then either party may commence legal action against the other.
19.1 Any dispute, other than audit, concerning a question of fact arising under this Agreement that is Contract Administrator, who may consider written or verbal information submitted by Consultant.
19.2 Not later than thirty (30) calendar days after completion of all deliverables necessary to complete the plans, specifications and estimate, Consultant may request review by City Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
19.3 Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in accordance with the terms of this Agreement.
20. Inspection of Work. Consultant and any subconsultant shall permit City, the State, and the FHWA if federal participating funds are used in this Agreement; to review and inspect the project activities and files at all reasonable times during the performance period of this Agreement.
21. Safety. Consultant shall comply with OSHA regulations applicable to Consultant regarding necessary safety equipment or procedures. Consultant shall comply with safety instructions issued by City Safety Officer and other City representatives.
Consultant personnel shall wear hard hats and safety vests at all times while working on the construction project site.
21.1 Pursuant to the authority contained in Vehicle Code §591, City has determined that such areas are within the limits of the project and are open to public traffic.
Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.
22. Nondjscrjmination Clause and Statement of Compiajnce, The Consultant's signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the Consultant has, unless exempt, 72 complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103.
22.1 During the performance of this Agreement, Consultant and its subconsultants shall not deny the Agreement's benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.
22.2 Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135- 11139.5, and the regulations or standards adopted by City to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov.
Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated into this Agreement by reference and made a part hereof as if set forth in full.
22.3 Consultant shall permit access by representatives of the Department of Fair Employment and Housing and the City upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours' notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or City shall require to ascertain compliance with this clause.
22.4 Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.
22.5 Consultant shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this Agreement.
22.6 The Consultant, with regard to the work performed under this Agreement, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
22. 7 The Consultant shall comply with regulations relative to non-discrimination in federally assisted programs of the U.S. Department of Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the Consultant shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.
22.8 Consultant, subrecipient or subconsultant will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the City components of the DBE Program Plan, Consultant, subrecipient or subconsultant will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE 73 Program Plan with respect to individuals of a particular race, color, sex, or national origin.
23. Independent Contractor. It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City.
Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services.
23. 1 The Consultant shall at all times remain an independent Contractor with respect to the services to be performed under this Agreement and shall be responsible for the payment of Federal and State Employer Withholding Taxes, Unemployment Insurance Taxes, FICA Taxes, Retirement, Life and/or Medical Insurance, and Worker's Compensation Insurance for the employees of the Consultant or any other person performing services under this Agreement. Consultant and its employees are not entitled to the rights or benefits afforded to City's employees, including disability or unemployment insurance, workers' compensation, medical insurance, sick leave, or any other employment benefit. Consultant agrees to indemnify and hold City harmless from any claims, costs, losses, fees, penalties, interest, or damages suffered by City as a result of any claim by any person or entity contrary to the provisions of this Section.
24. Ownership of Documents. All documents, information and materials of any and every type furnished or prepared by the Consultant or any of its subcontractors pursuant to and in the course of performance of this Agreement shall be and remain the sole and exclusive property of the City. Such documents, information and materials shall include but not be limited to all findings, reports, plans, specifications, studies, drawings, estimates, documents, appraisals, information and data including, but not limited to, electronic media, computer tapes or discs, files, and tapes furnished or prepared or accumulated by the Consultant in performing work under this Agreement, whether completed or in process. City shall have the sole right to use such documents, materials and information in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such documents, materials and information to City upon prior written request.
24.1 All Documents shall be considered works made for hire and all Documents and any and all intellectual property rights arising from their creation, including, but not limited to, all copyrights and other proprietary rights, shall be and remain the property of the City without restriction or limitation upon their use, duplication or dissemination by the City.
Consultant shall not obtain or attempt to obtain copyright protection as to any Documents.
24.2 Nothing herein shall constitute or be construed to be any representation by Consultant that the work product is suitable in any way for any other project except the one detailed in this Contract. Any reuse by City for another project or project location shall be at City's sole risk.
24.3 Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27 Subpart 27.3 - Patent Rights under Government Contracts for federal aid contracts).
24.4 City may permit copyrighting reports or other agreement products. If copyrights are permitted; the Agreement shall provide that the FHWA shall have the royaltyfree nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to 74 authorize others to use, the work for government purposes.
25. Confidentjaljty, All City information disclosed to Consultant during the course of performance of services under this Agreement shall be treated as confidential and shall not be disclosed to any other persons or parties except as authorized by City, excepting that information which is public record and subject to disclosure pursuant to the Public Records Act, or otherwise required by law. All documents, including drafts, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information, excepting that information which is public record and subject to disclosure pursuant to the Public Records Act, or otherwise required by law.
25.1 Permission to disclose information on one occasion, or public hearing held by City relating to the Agreement, shall not authorize Consultant to further disclose such information, or disseminate the same on any other occasion.
25.2 Consultant shall not comment publicly to the press or any other media regarding the Agreement or City's actions on the same, except to City's staff, Consultant's own personnel involved in the performance of this Agreement, at public hearings, or in response to questions from a Legislative committee.
25.3 Consultant shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this Agreement without prior review of the contents thereof by City, and receipt of City's written permission.
25.4 All information related to the construction estimate is confidential, and shall not be disclosed by Consultant to any entity, other than City, Caltrans, and/or FHWA. All of the materials prepared or assembled by Consultant pursuant to performance of this Contract are confidential and Consultant agrees that they shall not be made available to any individual or organization without the prior written approval of City or except by court order. If Consultant or any of its officers, employees, or subcontractors does voluntarily provide information in violation of this Contract, City has the right to reimbursement and indemnity from Consultant for any damages caused by Consultant releasing the information, including, but not limited to, City's attorney's fees and disbursements, including without limitation experts' fees and disbursements.
26. Access to Records, Consultant shall maintain all books, records, documents, accounting ledgers, and similar materials relating to work performed for City under this Agreement on file for at least three (3) years following the date of final payment to Consultant by City. Any duly authorized representative(s) of City shall have access to such records for the purpose of inspection, audit and copying at reasonable times, during Consultant's usual and customary business hours. Consultant shall provide proper facilities to City's representative(s) for access and inspection. Consultant shall be entitled to reasonable compensation for time and expenses relate to such access and inspection activities, which shall be considered to be an additional service to the City, subject to the provisions of Section 5 hereinabove.
27. Conflict of Interest, Consultant shall disclose any financial, business, or other relationship with the City that may have an impact upon the outcome of this contract, or any ensuing City construction project. Consultant shall also list current clients who may have a financial interest in the outcome of this contract, or any ensuing City construction project, which will follow.
27.1 Consultant certifies that it has disclosed to City any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this Agreement. Consultant agrees to advise City of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this Agreement.
Consultant further agrees to complete any statements of economic interest if required by either City ordinance or State law.
75 27.2 Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this contract.
27.3 Consultant hereby certifies that neither Consultant or subconsultant, nor any firm affiliated with Consultant will bid on any construction contract, or on any contract to provide construction inspection for any construction project resulting from this contract. An affiliated firm is one, which is subject to the control of the same persons through jointownership, or otherwise.
27.4 Except for subconsultants whose services are limited to providing surveying or materials testing information, no subconsultant who has provided design services in connection with this contract shall be eligible to bid on any construction contract, or on any contract to provide construction inspection for any construction project resulting from this contract.
27.5 Consultant hereby certifies that neither Consultant, its employees, nor any firm affiliated with Consultant providing services on this project prepared the Plans, Specifications, and Estimate for any construction project included within this contract. An affiliated firm is one, which is subject to the control of the same persons through jointownership, or otherwise.
27.6 Consultant further certifies that neither Consultant, nor any firm affiliated with Consultant, will bid on any construction subcontracts included within the construction contract. Additionally, Consultant certifies that no person working under this contract is also employed by the construction contractor for any project included within this contract.
27. 7 Except for subconsultants whose services are limited to materials testing, no subconsultant who is providing service on this contract shall have provided services on the design of any project included within this contract.
28. Rebates, Kickbacks or Other Unlawful Consideration, The Consultant warrants that this Agreement was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any City employee. For breach or violation of this warranty, City shall have the right, in its discretion, to terminate this Agreement without liability, to pay only for the value of the work actually performed, or to deduct from this Agreement price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
29. Prohibition of Expending Local Agency. State, or Federal funds for Lobbying,
29.1 The Consultant certifies, to the best of his or her knowledge and belief, that:
a. No State, Federal, or City appropriated funds have been paid or will be paid, by or on behalf of the Consultant, to any person for influencing or attempting to influence an officer or employee of any local, State, or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this Agreement, or with the extension, continuation, renewal, amendment, or modification of this Agreement.
b. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this Agreement, the Consultant shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. 76 29.2 This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars ($100,000) for each such failure.
29.3 The Consultant also agrees by signing this document that he or she shall require that the language of this certification be included in all lower tier subagreements, which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.
30. Assjgnment, This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City.
30.1 Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City.
Consultant shall be fully responsible to City for all acts and omissions of the subconsultant.
Nothing in this Agreement shall create any contractual relationship between City and subconsultant nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subconsultant other than as otherwise required by law.
31. Compliance wjth Laws, Rules. Regulatjons. Consultant's signature affixed herein, and dated, shall constitute a certification under penalty of perjury under the laws of the State of California that Consultant has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 8103.
31.1 During the performance of this Contract, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the 5applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 ( a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Contract by reference and made a part hereof as if set forth in full. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.
31.2 The Consultant shall comply with regulations relative to Title VI (nondiscrimination in federally-assisted programs of the Department of Transportation - Title 49 Code of Federal Regulations, Part 21 - Effectuation of Title VI of the 1964 Civil Rights Act). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the state of California shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
31.3 The Consultant, with regard to the work performed by it during the Agreement 77 shall act in accordance with Title VI. Specifically, the Consultant shall not discriminate on the basis of race, color, national origin, religion, sex, age, or disability in the selection and retention of Subconsultants, including procurement of materials and leases of equipment.
The Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the U.S. DOT's Regulations, including employment practices when the Agreement covers a program whose goal is employment.
31.4 Consultant shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Consultant shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of Consultant's performance under this Agreement.
31.5 Consultant is aware of the requirements of California Labor Code section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are subject to the Prevailing Wage Laws, Consultant agrees to fully comply with such Prevailing Wage Laws.
32. National Labor Relations Board Certjfjcatjon. In accordance with Public Contract Code § 10296, Consultant hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against Consultant within the immediately preceding two-year period, because of Consultant's failure to comply with an order of a federal court that orders Consultant to comply with an order of the National Labor Relations Board.
33. Eyalyatjon of Consultant, Consultant's performance will be evaluated by City.
A copy of the evaluation will be sent to Consultant for comments. The evaluation together with the comments shall be retained as part of the Agreement record.
34. Prompt payment from the Local Agency to Consyttant, The City shall make any progress payment within 30 days after receipt of an undisputed and properly submitted payment request from Consultant on a professional service contract. If the City fails to pay promptly, the City shall pay interest to the contractor, which accrues at the rate of 1 O percent per annum on the principal amount of a money judgment remaining unsatisfied. Upon receipt of a payment request, the City shall act in accordance with both of the following:
a. Each payment request shall be reviewed by the City as soon as practicable after receipt for the purpose of determining that the payment request is a proper payment request.
b. Any payment request determined not to be a proper payment request suitable for payment shall be returned to Consultant as soon as practicable, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall be accompanied by a document setting forth in writing the reasons why the payment request is not proper.
35. Debarment and Syspensjon Certificatjon, Consultant's signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that Consultant has complied with Title 2 CFR, Part 180, "OMS Guidelines to Agencies on Government wide Debarment and Suspension (non procurement)", which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, 78 officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicated, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to the City.
Any exceptions to this certification must be disclosed to City. Exceptions will not necessarily result in denial of recommendations for award, but will be considered in determining Consultant responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action.
Exceptions to the Federal Government Excluded Parties List System maintained by the U.S.
General Services Administration are to be determined by FHWA.
36. Integration: Amendment, This Agreement represents the entire understanding of City and Consultant as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered in it. This Agreement may not be modified or altered except by amendment in writing sign by both parties.
37. Seyerabjljty, If any part of this Agreement is found to be in conflict with applicable laws, such part shall be inoperative, null, and void insofar as it is in conflict with said laws, but the remainder of the Agreement shall continue to be in full force and effect.
38. WajverNalidjty. Consultant agrees that waiver by City of any one or more of the conditions of performance under this Agreement shall not be construed as waiver of any other condition of performance under this Agreement. The acceptance by the City of the performance of any work or services by Contractor shall not be deemed to be a waiver of any term or condition of this Agreement.
39. Jurjsdjctjon, City and Consultant agree that the law governing this Agreement shall be that of the State of California. Any suit brought by either party against the other arising out of the performance of this Agreement shall be filed and maintained in the County of Merced.
40. Notjce, Any notices required to be given pursuant to this Agreement shall be deemed to have been given by their deposit, postage prepaid, in the United States Postal Service, addressed to the parties as follows:
To City:
Nichol Bowersox, P .E.
Acting Public Works Director
411 Madison Avenue
Los Banos, California 93635
To Consultant:
Amber Costello
President
200 Spectrum Center, Suite 300
Irvine, California 92618
41. Jerminatjon, This Agreement may be terminated by City, provided that City gives not less than thirty (30) calendar days' written notice (delivered by certified mail, return receipt requested) of intent to terminate. Upon termination, City shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not. 79 41.1 City may temporarily suspend this Agreement, at no additional cost to City, provided that Consultant is given written notice (delivered by certified mail, return receipt requested) of temporary suspension. If City gives such notice of temporary suspension, Consultant shall immediately suspend its activities under this Agreement. A temporary suspension may be issued concurrent with the notice of termination.
41.2 Notwithstanding any provisions of this Agreement, Consultant shall not be relieved of liability to City for damages sustained by City by virtue of any breach of this Agreement by Consultant, and City may withhold any payments due to Consultant until such time as the exact amount of damages, if any, due City from Consultant is determined. 41 .3 In the event of termination, Consultant shall be compensated as provided for in this Agreement. Upon termination, City shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not. (Signature page to follow)
80 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates set forth below.
Date:
Date:
ATTEST:
CITY CLERK
Lucille L. Mallonee
City Clerk
MONUMENT
by: Amber Costello
President
CITY OF LOS BANOS,
a California Municipal Corporation
by: Josh Pinheiro
City Manager
APPROVED AS TO FORM:
William A. Vaughn
City Attorney
81 82
EXHIBIT A - COST PROPOSAL
83 84
Enterprise Canal Class I Trail/
Signature Pedestrian Bridge Over SR 168
City of Clovis
Note: Mer1t,vp1 are Not Albwed
EXHIBIT 10-H1 COST PROPOSAL Page 1 ol 3
ACDJI\I COSI:fl US£1!EQ Eff OR~ (FIRM FIXED PRICE)CONTRACTS (OESIGN, ENGINEERING AND ENVIRONMENTAL STI.JDJES)
li1I PrimeCon1ultanl Subconsultant
CoflMll.ant Monument ROW
Project No, Contract No. Dote
------ -- ---- --- ------ DIRECT LABOR
Clesslflcatlon(Tlh
--~ SeniPrBtloe.nlkmMnot
--
LABOR COSTS
a)SubtotalolOin,ctlaborCoeta
b)Ant.lod S.ala,y lnt:reafft (u:e page 2 e&lcuiatioll)
INDIRECT COSTS
di Fringe BeN,fu (~te: 0%)
f)Ovelhead (Rate: 120%)
h)G.anaraland Administrative(Reta:0%)
FIXED FEE
,..,
.,.
12. .... •
"' •
l1QU.l
W.00
W.22
W.22
WJIO
W-20
WJlO
$18,HIS.OO
$20.68
c) TOTAL DIRECT LABOR COSTS((a) • (b)]
e)lOUI Fringe Benefh J(c) x (d)I
g)OvalhHdl(c)x(f)J
IJGanandAdmin[(c)x(h)]
10.00 $23,022.83
S0.00
JJ TOTAL tNDIRECTCOSTS({fl) +(g) +(i)J
k) TOTAL FIXED FEE [(c:) + (l)] x fixed fH: 10%)
I) CONSULT ANT'S OTHER DIRECT COSTS (ODC) • ITEMIZE (Add additional pagee If neceNary) Onc:riptlon of !kin, Q\lllnttty Unit Coat
0 .58 S
H a lReporta 160.00 $
FedE• 30.00 S
. '
lotlll
$18,186.69
$23.022.&3
$4,220 .85
290.00
I) TOTAL OTHER DIRECT COSTs_ s;.._ _ ____ 20--0 __ .oo-- m) SUBCONSUL TANT'S COSTS (Add addltlonal pagea lfneceas ry) ""'' .ro,.n1,,
m) TOT Al SUBCONSUL T ANT'S cosrs_,;.._ ___ _ ,._,--·"-'-· "- n) TOTAL OTHER DIRECT COSTS INCLUDING SUBCONSUL TANTS [{I)• (m)J _s _____ 20_•·-°'-'·-" TOTAL COST [{c) + (i) • (k) +(n)] ___ ,_,._,_ ... _, _.ss _ __ o.1624448 NOTES;
1. Al costs rnuat oo~.,- wlh the federal cost p!Tlciplas. Subcon1ulents wil provide 1helroY«l oost propoHla.
2. The oos1 pmpo&al folfnlt s hd not be amended, Indirect 0011 n1to11hould ba based on con&ulltint's annual accounting period .and asteblished bye cognlUlntagencyoracoapted byCaftrant.
3. Anticipated Hlery inc111111H oaloulation (page 2)rnust eccoR1)any.
EXHIBIT 10-H1
Cost Proposal
SALARY INCREASE
FRINGE
OVERHEAD
G&A
2.S'JI.
0.00%
12 0.00'lro
0.00%
TOTAL INDIRECT COSTS 120.IO%
PROFIT '°''
Page3
85 City of Clovis
EXHIBIT 10-H1 COST PROPOSAL Page 2 of 3
EXHIBIT 10-H1
Cost Proposal
ACTUAL COST .PLUSflXED FEE OR LUMP SUM (FIRM FIXED PRICE) CONTRACTS (CALCULATIONS FOR ANTICIPATED SALARY INCREASES)
1. Calculate Average Hourly Rate for 1st year of the contract (Direct Labor Subtotal divided by total hours) Direct Labor Subtotal per Cost
Proposal
$824.34
Total Hours per Cost
Proposal
16 Avg Hourly Rate
$51.52
5 Year Contract Duration
Year 1 Avg Hourly Rate
2. Calculate hourly rate for all years (Increase the Average hourly rate for a year by proposed escalation%) Avg Hourly Rate Proposed Escalation
Year1 $51.52 + 2.5% $52.81 Year 2 Avg Hourly Rate
Year2 $52.81 + 2.5% $54.13 Year 3 Avg Hourly Rate
Year3 $54.13 + 2.5% $55.48 Year 4 Avg Hourly Rate
Year4 $55.48 + 2.5% $56.87 Year 5 Avg Hourly Rate
3. Calculate estimated hours per year (Multiply estimate % each year by total hours) Estimated % Completed Each Total Hours per Cost Total Hours per Year Year Proposal Year1 16.7% 16 3 Estimated Hours Year 1
Year2 66.7% 16 11 Estimated Hours Year 2
Year3 16.7% 16 3 Estimated Hours Year 3
Year4 0.0% 16 0 Estimated Hours Year 4
Years 0.0% 16 0 Estimated Hours Year 5
Total 100% Total 16
4. Calculate Total Costs including Escalation (multiply average hourly rate by the number of hours) Year1
Year2
Year3
Year4
Years
NOTES:
Avg Hourly Rate (calculated
above)
Estimated hours (calculated
above)
$51.52 3
$52.81
$54.13
$55.48
$56.87
11 3
0 0
Total Direct Labor Cost with Escalation
Direct Labor Subtotal before escalation
Estimated total of Direct Labor Salary
Increase
Cost per Year
$137.39
$563.30
$144.35
$0.00
$0.00
$845.03
$824.34
$20.69
Estimated Hours Year 1
Estimated Hours Year 2
Estimated Hours Year 3
Estimated Hours Year 4
Estimated Hours Year 5
Transfer to Page 1
1. This is not the only way to estimate salary increases. Other methods will, be accepted if they clearly indicate the % increase. the# of years of the contract, and a breakdown of the labor to be perfomied each year.
2. An estimation that is based on direct labor multiplied by salary increase % multiplied by the# of years is not acceptable. (i.e. $250,000 x 2% x 5 yrs= $25,000 is not an acceptable methodology)
3. This assumes that one year will be worked at the rate on the cost proposal before salary increases are granted.
4. Calculations for anticipated salary escalation must be provided.
86 City of Clovis
EXHIBIT 1 0-H1 COST PROPOSAL Page 3 of 3
Certificatjon of Direct Costs;
I, the undersigned, certify to the best of my knowledge and belief that all direct costs identified on the cost proposal(s) in this contract are actual, reasonable, allowable, and allocable to the contract in accordance with the contract terms and the following requirements:
1. Generally Accepted Accounting Principles (GAAP)
2. Terms and conditions of the contract
3. n1e 23 United States Code Section 112 - Letting of Contracts
4. 48 Code of Federal Regulations Part 31 - Contract Cost Principles and Procedures
5. 23 Code of Federal Regulations Part 172 - Procurement, Management, and Administration of Engineering and Design Related Service
6. 48 Code of Federal Regulations Part 9904 - Cost Accounting Standards Board (when applicable) All costs must be applied consistently and fairly to all contracts. All documentation of compliance must be retained in the project files and be in compliance with applicable federal and state requirements. Costs that are non compliant with the federal and state requirements are not eligible for reimbursement.
Local governments are responsible for applying only cognizant agency approved or Caltrans accepted Indirect Cost Rate(s).
Prime Consultant or Subconsyltant Certifying;
Name: Bob Monison Title*: VP Operations
EXHIBIT 10-H1
Cost Proposal
Signature: Date of Certification (mm/dd/yyyy): 09.24.21 Email: brrignisgq(ea;monumentrow.com Phone Number. 916-717-7069 Address : 3626 Fair Oaks blvd, Suite 100. Sacramento, CA 95864 *An individual executive or financial officer of the consultant's or subconsultant's organization at a level no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent the financial information utilized to establish the cost proposal for the contract.
List services the consultant is orovidin o under the orooosed contract:
ROW Consulting Services
87 Local Assistance Procedures Manual Exhibit 10-02
Consultant Contract DBE Commitment
EXHIBIT 10-02 CONSULTANT CONTRACT DBE COMMITMENT
1. Local Agency: _C_i_ty_o_f _L_o_s_B_a_n_o_s _ ___________ 2. contract DBE Goal: 18%
3. Project Description: ROW and Surveying Services for Pioneer Road Widening Project
4. Project Location: _L_o_s_B_a_n_o_s_, _C_A _________________________________ _
5. Consultant's Name: Monument ROW, Inc 6. Prime Certified DBE: D 7. Total Contract Award Amount:
8. Total Dollar Amount for ALL Subconsultants: 9. Total Number of ALL Subconsultants:
10. Description of Work, Service, or Materials 11 . DBE 13. DBE Certification 12. DBE Contact lnfonnation Dollar Supplied Number Amount Monument ROW, Inc
46456 200 Spectrum Center Drive, Suite 300
Right-of-Way Consulting Services Irvine, CA 92618
562.260.0507
Local Agency to Complete this S!Jction
$ 20. Local Agency Contract
N11mhPr· 14. TOTAL CLAIMED DBE PARTICIPATION
21. Federal-Aid Project Number: 18 22. Contract Execution DAIP.:
Local Agency certifies that all DBE certifications are valid and infonnation on IMPORTANT: Identify all DBE finns being claimed for credit, this form is complete and accurate. regardless of tier. Written confinnation of each listed DBE is "fJ./),4-_ 09/29/2021
23. Local Agency Representative's Signature 24. Date 16. Date Amber Costello 562.260.0507
25. Local Agency Representative's Name 26. Phone 17. Preparer's Name 18.Phone President
27. Local Agency Representative's Title 19. Preparer's Title DISTRIBUTION: 1. Original - Local Agency
2. Copy - Caltrans District Local Assistance Engineer (DLAE). Failure to submit to DLAE within 30 days of contract execution may result in de-obligation of federal funds on contract.
ADA Notice: For individuals with sensory disabilities, this document is available in alternate formats. For information call (916) 654-6410 or TDD (916) 654- 3880 or write Records and Forms Management, 1120 N Street, MS-89, Sacramento, CA 95814. %
July 23, 2015
88 Local Assistance Procedures Manual Exhibit 10-Hl
Cost Pro osal
EXHIBIT 10-Hl COST PROPOSAL Page 1 of 3
COST-PLUS-FIXED FEE OR .!J!.MtlllM OR FIRM FIXED PRICE CONTRACTS (DESIGN, ENGINEERING AND ENVIRONMENTAL STUDIES)
Note: Mark-ups are Not Allowed Prime Consultant Subconsultant 2nd Tier Subconsultant Consultant O'Dell Engineering
Project No. Los Banos ROW & Surveying- Pioneer Road Widening Contract No. TBD Date 9/16/2021 ----- DIRECT LABOR Classification/Title Name Hours Classification Range Actual or Average Hourly Rate Total Principal* Dylan Crawford 4 N/A $105.77 $423.08
Project Manager• Scott Roberts 49 N/A $55.00 $2,695.00
Senior Surveyor Stephen Pyle 30 N/A $48.00 $1,440.00
Surveyor Benjamin Garcia 293 N/A $37.00 $10,841.00
Assistant Surveyor Zaida Munoz 159 N/A $35.00 $5,565.00 Field Surveyor- Party Chief•• Ryan Andersen 462 N/A $57.29 $26,467.98 Field Surveyor- Chainman .. Jacob Caton 462 N/A $56.41 $26,061.42 Senior Surveyor TSO 20 $40.00-$78.00 $59.00 $1,180.00
Surveyor TSO 80 $30.00-$47.00 $38.50 $3,080.00
Assistant Surveyor TBD 70 $24.00-$37.00 $30.50 $2,135.00 CADD TSO 208 $17.00-$30.00 $23.50 $4,888.00
Field Surveyor• Party Chiet•• laime Velu quez N/ A $59.08 $0.00 Flt!ld Surv~vor • Party ChieP• Erlc: k Jlmen~L N/A $61.93 S0.00 Field Surveyor - Party Chief• • Jeff Ahan N/A $61.88 $0.00 FM!!ld Su<Vl!!!yor • Chain man•• Uriel Monte?nO N/ A $57,51 $0.00 field Surveyor· Chainman .. Jason 4MleBen N/ A S72.99 $0.00 Adm1nJ!l:tralr.Je TBD 2 $24.00-$58.00 $41.00 58200
LABOR COSTS
a) Subtotal Direct Labor Costs $84,858.48
b) Anticipated Salary Increases (see page 2 for calculation ) $848.58 c) TOTAL DIRECT LABOR COSTS [(a)+ (bl] ____ _,$"8"5,c.70:c7..:..06;.;;..
INDIRECT COSTS
d) Fringe Benefits
f) Overhead
(Rate: 37.86% ) e) Total Fringe Benefits l(c) x (di] $32,448.69 (Rate: 74.03% ) g) Overhead l(c) x (~I $63,448.94
h) General and Administrative (Rate: 0.00% I I) Gen & Admln l(c) x (h)I $0.00 ICR: 111.89%
j) TOTAL INDIRECT COSTS l(e) + (g) + (1)1 $95,897.63
-------- FIXED FEE k) TOTAL FIXED FEE l(c) + U)] x (q)I x fixed fee 10% $18,160.47 I) CONSULTANT'S OTHER DIRECT COSTS (ODC}-ITEMIZE (Add additional pages If necessary) Description of Item Quantity Unit Unit Cost Total
Caltrans Permit Fees $2,000.0 $2,000.0
Traffic Control $6,000.00 $6,000.00
I) TOTAL OTHER DIRECT COSTS _ _ ___ .:,:S=,8,c:.000=.o~o m) SUBCONSULTANTS' COSTS (Add additional pages H necessary) m) TOTAL SUBCONSULTANTS' COSTS _______ $'-'O"-.O;,c.O
n) TOTAL OTHER DIRECT COSTS INCLUDING SUBCONSULTANTS ((l]+(mll _____ '-$8~,o_o_o_.oo_ TOTAL COST l(c) + U) + (k) + (nil _____ $'-2_0~7,'-76_5_.1_7 NUlt::i:
1. Key personnel mY.!! be marked with an asterisk(•) and employees that are subject to prevailing wage requirements must be marked with two asterisks(**). All costs must compty with the Federal cost principles. Subconsultants will provide their own cost proposals.
2. The cost proposal format shall not be amended. Indirect cost rates shall be updated on an annual basis in accordance with the consultant's annual accounting period and established by a cognizant agency or accepted by Caltrans.
3. Anticipated salary increases calculation (page 2) must accompany.
January 2020
89 Local Assistance Procedures Manual
EXHIBIT 10-Hl COST PROPOSAL Page 2 of 3
COST-PLUS-FIXED FEE OR LUMP SUM OR FIRM FIXED PRICE CONTRACTS (CALCULATIONS FOR ANTICIPATED SALARY INCREASES)
1. Calculate Average Hourrv Rate for 1st year of the contract (Direct Labor Subtotal divided by total hours) Direct labor~
per Cost Proposal
$84,858.48
Total Hours
per Cost Proposal
1839
2, Calculate hourfy rate for all years (Increase the Average Hourty Rate for a year by proposed escalation%) Avg Hourly Rate Proposed Escalation
Year 1 $46.14 5.0%
Year 2 $48.45 5.0%
Year 3 $50.87 5.C)'/4
Year4 $53.42 5.0%
3. Calculate estimated hours per year (Multipty estimate% each year by total hours) Estimated% Total Hours
Completed Each Vear per Cost Proposal
Year 1 80.00% 1839.0
Year 2 20.00% 1839.0
Year3 0.00% 1839.0
Year4 0.00% 1839.0
Years 0.00% 1839.0
Total 100% Total
4. Calculate Total Costs including Escalation (Multipfy Average Hourly Rate by the number of hours) Year 1
Year 2
Year3
Year4
Year 5
NOTES:
Avg Hourly Rate Estimated hours
(calculated above) (calculated above)
$46.14 1471.2
$48.45
$50.87
$53.42
$56.09
Total Direct Labor Cost with Escalation
Direct Labor Subtotal before Escalation
Estimated total of Direct Labor Salary Increase
367.8
Cl.Cl
Cl.Cl
Cl.Cl
Avg Hourty
Rate
$46.14
$48.45
$50.87
$53.42
$56.09
Total Hours
per Year
1471.2
367.8
Cl.Cl
0.0 Cl.Cl
1839.0
Cost per Year
$67,886.78
$17,820.28
$0.00
$0.00
$0.00
$85,707.06
$84,858.48
$848.58
Exhibit 10-Hl
Cost Pro osal
5 Year Contract
Duration
Year 1 Avg Hourly Rate
Year 2 Avg Hourly Rate
Year 3 Avg Hourly Rate
Vear 4 Avg Hourly Rate
Year 5 Avg Hourly Rate
Estimated Hours Year 1
Estimated Hours Year 2
Estimated Hours Vear 3
Estimated Hours Year4
Estimated Hours Year S
Estimated Hours Year 1
Estimated Hours Year 2
Estimated Hours Year 3
Estimated Hours Year 4
Estimated Hours Year S
Transfer to Page 1
1. This is not the only way to estimate salary increases. Other methods will be accepted if they clearly indicate the% increase, the# of years of the contract, and a breakdown of the labor to be performed each year.
2. An estimation that is based on direct labor multiplied by salary increase% multiplied by the# of years is not acceptable. (i.e. $250,000 x 2% x 5 yrs= $25,000 is not an acceptable methodoloiw)
3. This assumes that one year will be worked at the rate on the cost proposal before salary increases are granted.
4. Calculations for anticipated salary escalation must be provided.
January 2020
90 Local Assistance Procedures Manual
Certification of Direct Costs:
Exhibit 10-Hl Cost Proposal Page 3 of 3
Exhibit 10-Hl
Cost Pro osal
I, the undersigned, certify to the best of my knowledge and belief that all direct costs identified on the cost proposal(s) in this contract are actual, reasonable, allowable, and allocable to the contract in accordance with the contract terms and the following requirements:
1. Generally Accepted Accounting Principles (GAAP)
2. Terms and conditions of the contract
3. Title 23 United States Code Section 112 - Letting of Contracts
4. 48 Code of Federal Regulations Part 31 - Contract Cost Principles and Procedures
5. 23 Code of Federal Regulations Part 172- Procurement, Management, and Administration of Engineering and Design Related Service
6. 48 Code of Federal Regulations Part 9904 - Cost Accounting Standards Board (when applicable) All costs must be applied consistently and fairly to all contracts. All documentation of compliance must be retained in the project files and be in compliance with applicable federal and state requirements, Costs that are noncom pliant with the federal and state requirements are not eligible for reimbursement.
Local governments are responsible for applying only cognlzant agency approved or Caltrans accepted Indirect Cost Rate(s).
Prime Consultant or Subconsultant Certifying:
Name: _D~y_la_n_C_ra_w_f_o_rd _ __________ Title•: Executive Vice President Signature: ~,.,. ~ ----------Date of Certification (mm/dd/yyyy): 9/16/2021 Email: dcrawford @odellengine.filip .com Phone Number: 209.497.4050 Address: 1165 Scenic Drive, Suite A, Modesto, CA 95350
*An individual executive or financial officer of the consultant's or subconsultant's organization at a level no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent the financial information utilized to establish the cost proposal for the contract, List services the consultant is providing under the proposed contract· Land Surveying
January 2020
91 92
EXHIBIT B - SCOPE OF WORK
93 94
Step 1: Project Kick-Off & Survey Planning
• Monument will work with the entire project development team to ensure timely delivery of the project base mapping and design topography.
• Monument will work directly with Mark Thomas to ensure the right-of-way needs of the project are provided in order to complete the right-of-way engineering. • O'Dell will present a preliminary survey plan to the City. • O'Dell will refine the survey plan based on input from the City and consultants, incorporating findings from detailed research (existing maps and property records, published survey control information, terrain, traffic data, etc.).
• If any potential problems are discovered during detailed planning, Monument will present to the City a project assessment and potential resolution.
Step 2: Schedule Field Staff
• Based on the detailed survey plan, identify appropriate field survey staff and equipment for the project.
• Coordinate with the Field Survey Manager to secure specific dates for equipment and staff. • Based on field survey dates, coordinate technical survey staff schedules to have adequate resources available immediately following the field survey. • Prepare written survey instructions and exhibits to provide clear direction for field surveyors to follow.
Step 3: Perform Field Survey
• Field crews collect survey data and submit work products daily to Survey Project Manager.
Step 4: Process Survey Data
• Survey staff review and process all raw survey data in vendor software. • Survey Project Manager approves field survey data and prepares written instruction for drafter, including project and client specific requirements.
Step 5: Production
• Drafters prepare topographic survey mapping products using AutoCAD Civil 30 and other tools/resources as needed according to written instructions. • Project Surveyors prepare boundary survey deliverable products.
Step 6: Quality Control
• All work products undergo checklist-driven peer reviews until all aspects meet our client-driven requirements.
• Final review and approval of all work products is performed by senior survey staff. • Work products are packaged and delivered to client for review, comment, and acceptance. 95 Step 7: Right-of-Way Acquisition
• As PA/ED is completed, Monument will work with O'Dell to complete the right-of-way mapping necessary for Phase 3C - Right of Way acquisition.
• Our final step within 2C will be to prepare a right-of-way delivery plan that includes scope, capital costs, consultant costs, schedule, risks, approval authorities, and stakeholder expectations. 96 ACORD® CERTIFICATE OF LIABILITY INSURANCE I ~ DATE (MM/DD/YYYY) ~ 11/17/2021
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER{S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
PRoDucER Venbrook Insurance Services CONTACT
NAME: Emily Jun □
16815 Von Karman Avenue f .. ~~N.t " •"· 818-598-8900 I FAX 818-598-8910 Suite 180 IA/C Nol: E-MAIL eiuno®venbrook.com Irvine, CA 92606 ADDRESS:
INSURER(Sl AFFORDING COVERAGE NAIC#
www.venbrook.com CA Lie No. 0D80832 INSURER A : Travelers Casualtv Insurance Co of America 19046 INSURED INSURER B : Travelers Prooertv Casualtv Co of America 25674 Monument ROW INSURERC: Underwriters at Llovds of London 15642 200 Si:,ectrum Center, Suite 300 Irvine CA 92618 INSURERD : Emolovers Preferred Insurance ComDanv 10346 INSURER E:
INSURERF :
COVERAGES CERTIFICATE NUMBER· 65038881 REVISION NUMBER·
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR ADDL SUBR POLICVEFF POLICY EXP
LTR TYPE OF INSURANCE '"~n wvn POLICY NUMBER IMM/DD/YYYYI IMMIOD/YYYYI LIMITS A ..L COMMERCIAL GENERAL LIABILITY ✓ ✓ 6807P4562802142 4/23/2021 4/23/2022 EACH OCCURRENCE $1 ,000 000 □ CLAIMS-MADE Ci] OCCUR DAMAGE TO RENTED
- PREMISES /Ea occurrencel $300 000
,_ MED EXP (Any one person) $5,000
..L Deductible: none PERSONAL & ADV INJURY $1000000
GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $2,000,000 R POLICY JEPRO- CT LOC PRODUCTS - COMP/OP AGG $2 000 000 OTHER: $
A AUTOMOBILE LIABILITY 6807P4562802142 4/23/2021 4/23/2022 COMBINED SINGLE LIMIT IEa accident\ $1 000 000 - ANY AUTO BODILY INJURY (Per person) $
- OWNED - SCHEDULED
AUTOS ONLY AUTOS BODILY INJURY (Per accident) $
- HIRED - NON-OWNED PROPERTY DAMAGE l..L AUTOS ONLY _L AUTOS ONLY IPer accidentl $ $
B ..L UMBRELLA LIAB H OCCUR CUP5N8889392142 4/23/2021 4/23/2022 EACH OCCURRENCE $5 000 000 EXCESS LIAB CLAIMS-MADE AGGREGATE $5 000 000
OED I ✓ I RETENTION $0 $
D WORKERS COMPENSATION ✓ EIG473996500 4/23/2021 4/23/2022 I PER I I OTH- AND EMPLOYERS' LIABILITY / STATUTE ER Y/N ANYPROPRIETOR/PARTNER/EXECUTIVE □ N/A E.L. EACH ACCIDENT $1000000 OFFICER/MEMBER EXCLUDED? (Mandatory In NH) E.L. DISEASE -EA EMPLOYEE $1 nnn nnn
~~iMrt-¥r~~ o"Fd~PERATIONS below E.L. DtSEASE - POLICY LIMIT $ 1000000 C Professional Liability (Claims Made MPL444730521 4/23/2021 4/23/2022 $2,000,000 Each Claim/ Aggregate Limit & Reported) Retention: $5,000 Each Claim
DESCRIPTION OF OPERATIONS/ LOCATIONS/ VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) RE: Right-of-Way and Surveying Services for the Pioneer Road Widening Project The City of Los Banos is named as Additional Insured with respects to General Liability per form CGD105 0494. Primary/Non-Contributory form CGT100 0219, Waiver of Subrogation forms CGD842 0219 & WC040306 4-84 applies in favor of the Additional Insured when required by written contract.
Subject to policy terms, conditions and exclusions.
CERTIFICATE HOLDER CANCELLATION
Citr of Los Banos
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 41 Madison Avenue ACCORDANCE WITH THE POLICY PROVISIONS.
Los Banos CA 93635
AUTHORIZED REPRESENTATIVE
Eric Doll
ff!iif) Oil
I
© 1988-2015 ACORD CORPORATION. All rights reserved.
ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD 65038881 I 2021 GL. HNO, UMB, WC, PL I Emily Jung I 11/17/2021 3,24,07 PM (PST) I Page 1 of 7 This certificate cancels and supersedes ALL previously issued certificates. 97 Monument ROW
6807P4562802142 COMMERCIAL GENERAL LIABILITY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
BLANKET ADDITIONAL INSURED -OWNERS, LESSEES
OR CONTRACTORS
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
PROVISIONS:
1. WHO IS AN INSURED (SECTION II) is amended
to include as an insured any person or organization (called hereafter "additional insured") whom you have agreed in a written contract, executed
prior to loss, to name as additional insured, but
only with respect to liability arising out of "your
work" or your ongoing operations for that additional insured performed by you or for you.
2. With respect to the insurance afforded to Additional Insureds the following conditions apply:
a. Limits of Insurance - The following limits of
liability apply:
1. The limits which you agreed to provide;
or
2. The limits shown on the declarations,
whichever is less.
b. This insurance is excess over any valid and
collectible insurance unless you have agreed
in a written contract for this insurance to
apply on a primary or contributory basis.
3. This insurance does not apply:
a. on any basis to any person or organization
for whom you have purchased an Owners
and Contractors Protective policy.
b. to "bodily injury," "property damage," "personal injury," or "advertising injury" arising out of the rendering of or the failure to render
any professional services by or for you, including:
1. The preparing, approving or failing to
prepare or approve maps, drawings,
opinions, reports, surveys, change orders, designs or specifications; and
2. Supervisory, inspection or engineering
services.
CG D10504 94 Copyright, The Travelers Indemnity Company, 1994. Page 1 of 1 Includes Copyrighted Material from Insurance Services Office, Inc. 65038881 I 2021 GL, HNO, UMB, we, PL I Emily Jung I 11/17/2021 3,24,07 PM (PST) I Page 2 of 7 This certificate cancels and supersedes ALL previously issued certificates. 98 Monument ROW
COMMERCIAL GENERAL LIABILITY
6807P4562802142
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
XTEND ENDORSEMENT FOR SMALL BUSINESSES
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
GENERAL DESCRIPTION OF COVERAGE - This endorsement broadens coverage. However, coverage for any injury, damage or medical expenses described in any of the provisions of this endorsement may be excluded or limited by another endorsement to this Coverage Part, and these coverage broadening provisions do not apply to the extent that coverage is excluded or limited by such an endorsement. The following listing is a general coverage description only. Read all the provisions of this endorsement and the rest of your policy carefully to determine rights, duties, and what is and is not covered.
A. Who Is An Insured - Unnamed Subsidiaries
B. Who Is An Insured - Employees And Volunteer
Workers - Bodily Injury To Co-Employees And
Co-Volunteer Workers
PROVISIONS
A. WHO IS AN INSURED UNNAMED
SUBSIDIARIES
The following is added to SECTION II - WHO IS
AN INSURED:
Any of your subsidiaries, other than a partnership
or joint venture, that is not shown as a Named
Insured in the Declarations is a Named Insured
if:
a. You are the sole owner of, or maintain an
ownership interest of more than 50% in, such
subsidiary on the first day of the policy
period; and
b. Such subsidiary is not an insured under
similar other insurance.
No such subsidiary is an insured for "bodily
injury" or "property damage" that occurred, or
"personal and advertising injury" caused by an
offense committed:
a. Before you maintained an ownership interest
of more than 50% in such subsidiary; or
b. After the date, if any, during the policy period
that you no longer maintain an ownership
interest of more than 50% in such subsidiary.
For purposes of Paragraph 1. of Section II - Who
Is An Insured, each such subsidiary will be
deemed to be designated in the Declarations as:
a. A limited liability company;
C. Who Is An Insured - Newly Acquired Or
Formed Limited Liability Companies
D. Incidental Medical Malpractice
E. Blanket Waiver Of Subrogation
b. An organization other than a partnership, joint
venture or limited liability company; or
c. A trust;
as indicated in its name or the documents that
govern its structure.
B. WHO IS AN INSURED - EMPLOYEES AND
VOLUNTEER WORKERS - BODIL V INJURY
TO CO-EMPLOYEES AND CO-VOLUNTEER
WORKERS
The following is added to Paragraph 2.a.(1) of
SECTION II - WHO IS AN INSURED:
Paragraphs (1)(a), (b) and (c) above do not
apply to "bodily injury" to a co-"employee" while
in the course of the co-"employee's" employment
by you or performing duties related to the
conduct of your business, or to "bodily injury" to
your other "volunteer workers" while performing
duties related to the conduct of your business.
C. WHO IS AN INSURED - NEWL V ACQUIRED
OR FORMED LIMITED LIABILITY COMPANIES
1. The following replaces the first sentence of
Paragraph 3. of SECTION II - WHO IS AN
INSURED:
Any organization you newly acquire or form,
other than a partnership or joint venture, and
of which you are the sole owner or in which
you maintain an ownership interest of more
than 50%, will qualify as a Named Insured if
CG D8 42 0219 © 2018 The Travelers Indemnity Company. All rights reserved. Page 1 of 3 Includes copyrighted material of Insurance Services Office, Inc., with its permission. 65038881 I 2021 GL, HNO, UMB, we, PL I Emily Jung I 11/17/2021 3, 24, 07 PM (PST) I Page 3 of 7 This certificate cancels and supersedes ALL previously issued certificates. 99 COMMERCIAL GENERAL LIABILITY
there is no other similar insurance available
to that organization.
2. The following replaces the last sentence of
Paragraph 3. of SECTION II - WHO IS AN
INSURED:
For the purposes of Paragraph 1. of Section
II - Who Is An Insured, each such
organization will be deemed to be
designated in the Declarations as:
a. A limited liability company;
b. An organization other than a partnership,
joint venture or limited liability company;
or
c. A trust;
as indicated in its name or the documents
that govern its structure.
D. INCIDENTAL MEDICAL MALPRACTICE
1. The following replaces Paragraph b. of the
definition of "occurrence" in the
DEFINITIONS Section:
b. An act or omission committed in
providing or failing to provide "incidental
medical services", first aid or "Good
Samaritan services" to a person, unless
you are in the business or occupation of
providing professional health care
services.
2. The following replaces the last paragraph of
Paragraph 2.a.(1) of SECTION II - WHO IS
AN INSURED:
Unless you are in the business or occupation
of providing professional health care
services, Paragraphs (1)(a), (b), (c) and (d)
above do not apply to "bodily injury" arising
out of providing or failing to provide:
(a) "Incidental medical services" by any of
your "employees" who is a nurse, nurse
assistant, emergency medical
technician, paramedic, athletic trainer,
audiologist, dietician, nutritionist,
occupational therapist or occupational
therapy assistant, physical therapist or
speech-language pathologist; or
(b) First aid or "Good Samaritan services"
by any of your "employees" or "volunteer
workers", other than an employed or
volunteer doctor. Any such "employees"
or "volunteer workers" providing or failing
to provide first aid or "Good Samaritan
services" during their work hours for you
will be deemed to be acting within the
scope of their employment by you or
performing duties related to the conduct
of your business.
3. The following replaces the last sentence of
Paragraph 5. of SECTION Ill - LIMITS OF
INSURANCE:
For the purposes of determining the
applicable Each Occurrence Limit, all related
acts or omissions committed in providing or
failing to provide "incidental medical
services", first aid or "Good Samaritan
services" to any one person will be deemed
to be one "occurrence".
4. The following exclusion is added to
Paragraph 2., Exclusions, of SECTION I -
COVERAGES - COVERAGE A - BODILY
INJURY AND PROPERTY DAMAGE
LIABILITY:
Sale Of Pharmaceuticals
"Bodily injury" or "property damage" arising
out of the violation of a penal statute or
ordinance relating to the sale of
pharmaceuticals committed by, or with the
knowledge or consent of, the insured.
5. The following is added to the DEFINITIONS
Section:
"Incidental medical services" means:
a. Medical, surgical, dental, laboratory, xray or nursing service or treatment, advice or instruction, or the related
furnishing of food or beverages; or
b. The furnishing or dispensing of drugs or
medical, dental, or surgical supplies or
appliances.
6. The following is added to Paragraph 4.b.,
Excess Insurance, of SECTION IV -
COMMERCIAL GENERAL LIABILITY
CONDITIONS:
This insurance is excess over any valid and
collectible other insurance, whether primary,
excess, contingent or on any other basis,
that is available to any of your "employees"
for "bodily injury" that arises out of providing
or failing to provide "incidental medical
services" to any person to the extent not
subject to Paragraph 2.a.(1) of Section II -
Who Is An Insured.
E. BLANKET WAIVER OF SUBROGATION
The following is added to Paragraph 8., Transfer
Of Rights Of Recovery Against Others To Us,
Includes copyrighted material of Insurance Services Office, Inc., with its permission. 65038881 I 2021 GL, HNO, UMB, WC, PL I Emily Jung I 11/17/2021 3,24,07 PM (PST) I Page 4 of 7 This certificate cancels and supersedes ALL previously issued certificates. 100
of SECTION IV - COMMERCIAL GENERAL
LIABILITY CONDITIONS:
If the insured has agreed in a contract or
agreement to waive that insured's right of
recovery against any person or organization, we
waive our right of recovery against such person
or organization, but only for payments we make
because of:
COMMERCIAL GENERAL LIABILITY
a. "Bodily injury" or "property damage" that
occurs; or
b. "Personal and advertising injury" caused by
an offense that is committed;
subsequent to the execution of the contract or
agreement.
CG D8 42 0219 © 2018 The Travelers Indemnity Company. All rights reserved. Page 3 of 3 Includes copyrighted material of Insurance Services Office, Inc., with its permission. 65038881 I 2021 GL, HNO, UMB, we, PL I Emily Jung I 11/17/2021 3, 24, 07 PM (PST) I Page 5 of 7 This certificate cancels and supersedes ALL previously issued certificates. 101
Monument ROW
6807P4562802142
COMMERCIAL GENERAL LIABILITY
c. Method Of Sharing
If all of the other insurance permits contribution
by equal shares, we will follow this method also.
Under this approach each insurer contributes
equal amounts until it has paid its applicable
limit of insurance or none of the loss remains,
whichever comes first.
If any of the other insurance does not permit
contribution by equal shares, we will contribute
by limits. Under this method, each insurer's
share is based on the ratio of its applicable limit
of insurance to the total applicable limits of
insurance of all insurers.
d. Primary And Non-Contributory Insurance If
Required By Written Contract
If you specifically agree in a written contract or
agreement that the insurance afforded to an
insured under this Coverage Part must apply on
a primary basis, or a primary and noncontributory basis, this insurance is primary to other insurance that is available to such insured
which covers such insured as a named insured,
and we will not share with that other insurance,
provided that:
(1) The "bodily injury" or "property damage" for
which coverage is sought occurs; and
(2) The "personal and advertising injury" for
which coverage is sought is caused by an
offense that is committed;
subsequent to the signing of that contract or
agreement by you.
5. Premium Audit
a. We will compute all premiums for this Coverage
Part in accordance with our rules and rates.
b. Premium shown in this Coverage Part as
advance premium is a deposit premium only. At
the close of each audit period we will compute
the earned premium for that period and send
notice to the first Named Insured. The due date
for audit and retrospective premiums is the date
shown as the due date on the bill. If the sum of
the advance and audit premiums paid for the
policy period is greater than the earned
premium, we will return the excess to the first
Named Insured.
c. The first Named Insured must keep records of
the information we need for premium
computation, and send us copies at such times
as we may request.
6. Representations
By accepting this policy, you agree:
a. The statements in the Declarations are
accurate and complete;
b. Those statements are based upon
representations you made to us; and
c. We have issued this policy in reliance upon
your representations.
The unintentional omission of, or unintentional error
in, any information provided by you which we relied
upon in issuing this policy will not prejudice your
rights under this insurance. However, this provision
does not affect our right to collect additional
premium or to exercise our rights of cancellation or
nonrenewal in accordance with applicable insurance
laws or regulations.
7. Separation Of Insureds
Except with respect to the Limits of Insurance, and
any rights or duties specifically assigned in this
Coverage Part to the first Named Insured, this
insurance applies:
a. As if each Named Insured were the only
Named Insured; and
b. Separately to each insured against whom claim
is made or "suit" is brought.
8. Transfer Of Rights Of Recovery Against Others
To Us
If the insured has rights to recover all or part of any payment we have made under this Coverage Part,
those rights are transferred to us. The insured must
do nothing after loss to impair them. At our request,
the insured will bring "suit" or transfer those rights
to us and help us enforce them.
9. When We Do Not Renew
If we decide not to renew this Coverage Part, we will
mail or deliver to the first Named Insured shown in
the Declarations written notice of the nonrenewal
not less than 30 days before the expiration date.
If notice is mailed, proof of mailing will be sufficient proof of notice.
SECTION V - DEFINITIONS
1. "Advertisement" means a notice that is broadcast or
published to the general public or specific market
segments about your goods, products or services
for the purpose of attracting customers or
supporters. For the purposes of this definition:·
a. Notices that are published include material
placed on the Internet or on similar electronic
means of communication; and
b. Regarding websites, only that part of a website
that is about your goods, products or services
for the purposes of attracting customers or
supporters is considered an advertisement.
Includes copyrighted material of Insurance Services Office, Inc. with its permission. 65038881 I 2021 GL, HNO, 0MB, WC, PL I Emily Jung I 11/17/2021 3,24,07 PM (PST) I Page 6 of 7 This certificate cancels and supersedes ALL previously issued certificates. 102
WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 04 03 06 (Ed. 4-84)
WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT -CALIFORNIA We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.)
You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule.
The additional premium for this endorsement shall be __ 2_% of the California workers' compensation premium otherwise du·e on such remuneration.
Person or Organization
With respect to all employees subject to the
workers' compensation laws of the state of
California, any person or organization for whom
the Named Insured has agreed by written
contract to furnish this waiver.
Schedule
Job Description
This policy is subject to a minimum charge of $250 for the issuance of waivers of subrogation This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement Is Issued subsequent to preparation of the policy.) This endorsement, effective 04/23/2021
Policy No. EIG 4739965 00
at 12:01 AM standard time, forms a part of
Of the EMPLOYERS PREFERRED INS. CO.
Carrier Code 00920
Issued to MONUMENT ROW
Premium
Countersigned at ___________ on _ _ _ _ _ _
WC 04 03 06
Endorsement No.
By: _ ___._ , _fl_U __
Authorized Representative
(Ed. 4-84) © 1998 by the Workers' Compensation Insurance Rating Bureau of California. All rights reserved. 650388 8 1 I 20 2 1 GL, HNO, UMH, WC, PL I Emily Jung I 11/1 7/2021 3,24,07 PM (PST) I Page 7 of 7 This certificate cancels and supersedes ALL previously issued certi ficates . 103
104
LOsBanos
At tlu► Crossrmuls of Ccdij,1rnit1
REQUEST FOR QUALIFICATIONS
for
RIGHT-OF-WAY AND SURVEYING
SERVICES FOR
THE PIONEER ROAD WIDENING PROJECT
Date Released: September 1, 2021
Questions with regard to submission, process, or proposal can be emailed to:
Nichol Bowersox, P.E.
Acting Public Works Director
[email protected]
Proposals must be received prior to 4:00 p.m.
September 22, 2021
at the office of City Clerk
City of Los Banos
520 J Street
Los Banos, CA 93635
105
106
TABLE OF CONTENTS
Request for Qualifications
Right-of-Way and Surveying Services for the
Pioneer Road Widening Project
Request for Qualifications ............................................................. ............... .. ... 3 Project Description and Background ........................ ....... .................................. 5 Scope of Services .. ....... ......... ..... ........ ...... ........ .. ..... ..... ... ................................ 5 Purpose of Work
General Personnel Requirements
Deliverables
Schedule
Method of Payment
Materials to Be Provided by the Consultant
Appendix A: Submittal Requirements ............................................................... 8 Appendix B: Proposal Evaluation ........ .......................................... .................. 12 Appendix C: Sample Contract Agreement ...................................................... 16 Appendix D: Project Study Report-Project Development Support ..... ..... .. ... .... 43 Appendix E: Required Caltrans Local Assistance Forms ............. ................... 44 Exhibit 10-A A&E Consultant Financial Document Review Request Exhibit 10-H1 Cost Proposal
Exhibit 10-1 Notice to Proposers DBE Information
Exhibit 10-K Consultant Annual Certification of Indirect Costs and Financial Management System
Exhibit 10-01 Consultant Proposal DBE Commitment
Exhibit 10-02 Consultant Contract DBE Commitment
Exhibit 10-Q Disclosure of Lobbying Activities
107
108
REQUEST FOR QUALIFICATIONS
Right-of-Way and Surveying Services for the Pioneer Road Widening Project
The City of Los Banos (City) is seeking a qualified consulting firm to provide environmental clearance services for the Pioneer Road Widening Project. The response to this solicitation will be in the form of a Statement of Qualifications (SOQ).
The Request for Qualifications (RFQ), in its entirety, can be viewed and/or obtained from the City of Los Banos website: www.losbanos.org.
The City intends to award contract one (1) professional services firms to provide Phase 2C """PA&ED:
Right-of-Way and Surveying Services. The performance period becomes effective upon execution of the Agreement by both parties and shall continue in full force and effect until June 30, 2025.
All qualified firms interested in providing these services are invited to submit their SOQs. The SOQs will be evaluated and ranked according to the criteria provided in Appendix B, "Proposal Evaluation," of this Request for Qualifications (RFQ).
It shall be the Consultant's responsibility to check the City of Los Banos' website to obtain any addenda that may be issued.
The Consultant's attention is directed to Appendix A, "Submittal Requirements." Submit five (5) hard copies and one (1) electronic copy in PDF format on a USB flash drive of the Consultant's SOQs. The hard copies and USB flash drive shall be mailed or submitted to the City of Los Banos, 520 J Street, Los Banos, CA 93635, prior to 4:00 p.m., Pacific Standard Time (PST), September 22, 2021. SOQs shall be submitted in a sealed package clearly marked "RIGHT-OFWAY AND SURVEYING SERVICES FOR THE PIONEER ROAD WIDENING PROJECT" and addressed as follows:
City of Los Banos
Attention: City Clerk
520 J Street
Los Banos, CA 93635
Submittals received after the time and date specified above will be considered nonresponsive and will be returned to the Consultant.
Any proposals received prior to the time and date specified above may be withdrawn or modified by written request of the Consultant. To be considered, however, the modified submittal must be received prior to 4:00 p.m., PST, on September 22, 2021.
Unsigned submittals or submittals signed by an individual not authorized to bind the prospective Consultant will be considered nonresponsive and rejected.
Upon review of submitted proposals, the Selection Committee will determine whether interviews are necessary to determine a Consultant selection. The City reserves the right to hold interviews or make a Consultant selection based solely on the SOQs received.
This RFQ does not commit the City of Los Banos to award a contract, to pay any costs incurred in the preparation of a proposal for this request, or to procure, or contract for services. The City of Los Banos reserves the right to accept or reject any or all SOQs received as a result of this request, to negotiate with any qualified Consultant, or to modify or cancel in part or in its entirety the RFQ if it is in the best interests of the City of Los Banos to do so.
The prospective Consultant(s) is advised that should this RFQ result in recommendation for award of a contract, the contract will not be in force until it is approved and fully executed by the City of Los Banos. All products used or developed in the execution of any contract resulting from this RFQ will City of Los Banos Request for Qualifications - Right-of-Way and Surveying Services for the Pioneer Road Widening Project
109
remain in the public domain at the completion of the contract.
The anticipated consultant selection schedule is as follows:
SOQ review and evaluation: September 22, 2021 through September 24, 2021 Oral interviews (if necessary): Week of September 27, 2021 Cost Negotiation and Caltrans Pre-Award Audit: October 4, 2021 through October 8, 2021 Contract Award: October 20, 2021
Any questions related to this RFQ shall be submitted in writing to the attention of Nichol Bowersox, P.E., via email at [email protected]. Questions shall be submitted before 5:00 p.m. PST on September 10, 2021. Answers to questions and addendum, if necessary, shall be posted on the City website before 5:00 p.m. PST on September 13, 2021.
No oral questions or inquiries about the RFQ shall be accepted.
City of Los Banos Request for Qualifications - Right-of-Way and Surveying Services for the Pioneer Road Widening Project
110
PROJECT DESCRIPTION AND BACKGROUND
The Pioneer Road Widening Project is an approximately 6.5-mile-long design and construction of a 4-lane arterial road. This road is to be designed per City Standards and will include a 10-foot Class I bike/pedestrian path. The location of the widening is from the State Route 152 (SR-152)/Merced College signalized intersection, south to Pioneer Road, easterly along Pioneer Road to the Pioneer Road/Ward Road future intersection, then north along Ward Road to the SR-152/Ward Road signalized intersection.
The City of Los Banos (City) selected Mark Thomas in 2020 to provide engineering services for the Phase 1 - Project Study Report-Project Development Support (PSR-PDS), Phase 2 - Project Approval and Environmental Document (PA&ED), and Phase 3 - Plans Specifications and Estimate (PS&E) for the Pioneer Road Widening Project. Mark Thomas completed Phase 1 - PSR-PDS and is included in Appendix D. The Mini-Preliminary Environmental Analysis Report (PEAR) prepared for the PSR-PDS anticipates an Initial Study/Mitigated Negative Declaration for California Environmental Quality Act (CEQA) and "Routine" Environmental Assessment/Finding of No Significant Impact for National Environmental Protection Act (NEPA). Mark Thomas's contract has been amended to include Phase 2A- PA&ED: Engineering Services. The City has secured Highway Improvement Program (HIP) and Local Partnership Program (LPP) funds for the nonengineering design components of PA&ED and PS&E.
The City will select a qualified consulting firm to support Mark Thomas to provide Phase 2C - PA&ED: Right-of-Way and Surveying Services. Phase 2C consultants shall have the ability to provide in-house services, or the capacity to sublet, land surveying, right-of-way engineering, and right-of-way appraisals and acquisitions. The consultants must be knowledgeable of CEQA and NEPA requirements and experienced in field surveying and right-of-way acquisitions and appraisals.
Consultants who plan to sublet any of the required services of a project contained in this RFQ shall include the name of the company(ies) and description of project services that may be potentially sublet.
The project services are to be rendered for the duration of the contract term. The City intends to award one (1) contract to professional services firms. The City does not guarantee a specific dollar amount of the project will be contracted.
Phases 2C is funded in part with federal funds. The Disadvantaged Business Enterprise (DBE) goal established for both phases is 18%.
SCOPE OF SERVICES
Mark Thomas, as the engineering consultant, will lead and direct the consultants. Deliverables and invoices will be submitted to Mark Thomas. The consultants may provide services to the City and Mark Thomas for the Pioneer Road Widening Project including, but not limited to, the following:
PHASE 2A - PA&ED: ENGINEERING SERVICES
All civil and structural engineering, transportation planning and engineering, and hydraulic analysis will be performed by Mark Thomas and is excluded from this scope of work.
PHASE 2B- PA&ED: ENVIRONMENTAL CLEARANCE AND LANDSCAPE ARCHITECTURE
SERVICES
Phase 28 is the subject of a separate solicitation.
PHASE 2C- PA&ED: RIGHT-OF-WAY AND SURVEYING SERVICES
• Perform topographic surveys, aerial mapping, and base mapping • Preconstruction record of survey
City of Los Banos Request for Qualifications - Right-of-Way and Surveying Services for the Pioneer Road Widening Project
111
• Perform right-of-way retracement
• Prepare right-of-way acquisition documents
• Update the right-of-way estimate
• Perform utility potholing (option service)
Supplemental topographic survey, right-of-way acquisitions and appraisals are included in Phase 3C - PS&E and may be offered as a separate agreement upon completion of Phase 2C.
Phase 2C Deliverables
• Electronic base map
• Digital terrain model (DTM)
• Control report
• Pre-construction record of survey
• Updated right-of-way estimate
• Right-of-way acquisition documents
GENERAL PERSONNEL REQUIREMENTS
The consultant(s)'s personnel shall be capable, competent, and experienced in performing the types of work in this Contract with minimal instruction. Personnel skill level should match the specific job classifications, as set forth herein or in the consultant's Cost Proposal and task complexity. The consultant's personnel shall be knowledgeable about, and comply with, all applicable Federal, State, and Local laws and regulations.
The consultant(s) is required to submit a written request and obtain the City's Contract Administrator's prior written approval for any substitutions, additions, alterations, or modifications to the consultant's originally proposed personnel and project organization, as depicted on the proposed consultant's organization chart or the consultant's cost proposals. The substitute personnel shall have the same job classification as set forth herein or in the consultant's Cost Proposal not exceed the billing rate, and meet or exceed the qualifications and experience level of the previously assigned personnel, at no additional cost to the City.
The consultant project manager shall have a documented minimum ten (10) years of demonstrated experience acceptable to City in management and delivery of federally funded transportation projects for local agencies.
In addition to other specified responsibilities, the consultant(s) Project Manager shall be responsible for all matters related to the consultant's personnel, subconsultants, and consultant's and sub- consultants' operations including, but not limited to, the following:
a. Ensuring that deliverables are clearly defined and those criteria are specific, measurable, attainable, realistic and time-bound.
b. Supervising, reviewing, monitoring, training, and directing the consultant's and subconsultants' personnel. c. Assigning qualified personnel to complete the required tasks in coordination with the City Contract Administrator.
d. Administering personnel actions for consultant personnel and ensuring appropriate actions taken for Subconsultant personnel
e. Maintaining and submitting organized project files for record tracking and auditing. f. Developing and attending scheduled coordination meetings. g. Implementing and maintaining quality control procedures to manage conflicts, ensure product accuracy, and identify critical reviews and milestones.
City of Los Banos Request for Qualifications - Right-of-Way and Surveying Services for the Pioneer Road Widening Project
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h. Assuring that all applicable safety measures are in place. i. Providing invoices in a timely manner and providing monthly Contract expenditures. j. Reviewing invoices for accuracy and completion before billing to City. k. Managing Subconsultants.
I. Managing overall budget for Contract and provide report to the City Contract Administrator. m. Ensuring compliance with the revisions in the Contract. n. Knowledge, experience, and familiarity with prevailing wage issues and requirements in the State of California.
SCHEDULE
The City and Mark Thomas have developed a project schedule as shown in the PSR-PDS. The Draft Environmental Document is to be circulated in May 2022 and the Final Environmental Document approved in March 2023.
METHOD OF PAYMENT
Consultant shall be paid based on the Specific Rates of Compensation for this Contract and for the amount as agreed upon by the City and Consultant. Consultant shall submit request for monthly progress payments.
MATERIALS TO BE PROVIDED BY THE CONSULTANT
Unless otherwise specified, the consultant shall provide all materials to complete the required work in accordance with the delivery schedule and cost estimate.
City of Los Banos Request for Qualifications - Right-of-Way and Surveying Services for the Pioneer Road Widening Project
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114
TO:
FROM:
T Cityof B LOS anos
'11 the , , ids <~J ,cdifonua
Agenda Staff Report
Mayor & City Council Members
~-h, Rosemarie Souto, Accountant I
DATE: January 19, 2022
SUBJECT: Authorizing the Release of Unclaimed Checks Pursuant to California Government Code Section 50050 and 50053 to the City of Los Banos TYPE OF REPORT: Consent Agenda
Recommendation:
That the City Council authorize the release of attached unclaimed checks to the City of Los Banos.
Background:
Section 50053 of the California Government Code allows for unclaimed checks held over three (3) years to become the property of the local agency after notice if not claimed or if no verified complaint is filed and served.
Section 50050 of the California Government Code outlines the process for the notification process of the unclaimed checks, and section 50052 describes the claiming process by a party of interest.
Staff has reviewed all outstanding checks and has determined that the attached list meets this criteria.
Per section 50050 public notice was posted in The Los Banos Enterprise on November 26, 2021 & December 3, 2021 . In the forty-five (45) Days given for claiming $4,186.97 in unclaimed checks, no checks were claimed.
ITEM 8F
115
Fiscal Impact:
This will increase the Funds upon which the original checks were drawn, in the amount of $4,186.97. 11
Reviewed by:
Josh Pinh
Attachments:
Resolution
List of Unclaimed Checks
116
RESOLUTION NO. --
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF LOS BANOS AUTHORIZING THE
RELEASE OF UNCLAIMED CHECKS PURSUANT
TO CALIFORNIA GOVERNMENT CODE
SECTION 50050 AND 50053 TO THE CITY OF
LOS BANOS
WHEREAS, Section 50053 of the California Government Code allows for unclaimed checks held over three (3) years to become the property of the local agency after notice if not claimed or if no verified complaint is filed and served; and WHEREAS, Section 50050 of the California Government Code outlines the process for the notification process of the unclaimed checks, and section 50052 describes the claiming process by a party of interest; and WHEREAS, Staff has reviewed all outstanding checks and has determined that the attached list meets this criteria.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Los Banos does hereby transfer the unclaimed checks on the attached list in the total amount of $4,186.97 to the City of Los Banos Funds upon which the original checks were drawn in accordance with Section 50053 of the California Government Code.
The foregoing Resolution was introduced at a regular meeting of the City Council of the City of Los Banos held on the 19 day of January 2022, by Council Member ___ who moved its adoption, which motion was duly seconded by Council Member ___ and the Resolution adopted by the following vote:
AYES:
NOES:
ABSENT:
APPROVED:
Michael Villalta, Mayor
ATTEST:
Lucille L. Mallonee, City Clerk
117
118
Unclaimed Checks To Be Released To The City Of Los Banos Check Date Check Number Fund Amount Payee
07/29/2016 200220 501 100.00 Kristifer Hew
08/19/2016 200507 100 250.00 Bianca Echeveste
08/19/2016 200566 501 22.14 Eduardo Causor
09/02/2016 200834 501 76.92 Estefania Angulo
09/30/2016 201225 501 48.10 Wendy Ortega Rodriguez
10/07/2016 201344 501 120.00 Pratap Kurra
10/07/2016 201345 501 36.70 Matthew Patrick
10/14/2016 201485 501 19.26 Ramon Rodriguez
11/04/2016 201899 501 50.97 Valley Vanguard Properties Inc. 11/04/2016 201902 501 33.69 Parker Capps
11/04/2016 201919 501 40.00 Randy Williamson
11/04/2016 201920 501 40.00 Randy Williamson
12/09/2016 202380 501 30.79 Tiffany Ghassemian
12/16/2016 202509 501 22.14 Technology for Better Life
Foundation
01/13/2017 202857 501 27.21 Crystal Ornelas
01/27/2017 203104 501 42.32 Krystal Villa
01/27/2017 203110 501 70.33 RB Construction
02/24/2017 203616 501 45.21 Mathew Morales
03/22/2017 203984 100 50.00 Karen Norris
03/22/2017 203985 100 50.00 Anthony Resendez
03/22/2017 203988 501 27.84 Jeremy Orosco Sr
03/22/2017 203993 501 20.93 Bobbi Brown
03/22/2017 203994 501 32.98 Jose Escobar
03/22/2017 203995 501 58.76 Alfredo Astorga Ramirez
03/22/2017 204000 501 23.36 Irene Jimenez
03/22/2017 204001 501 17.57 Albino Lopez
03/22/2017 204002 501 17.24 Elizabeth Ramirez
03/22/2017 204004 501 18.15 Robert Hansen
03/22/2017 204005 501 23.61 Lewis Patton
03/22/2017 204008 501 18.15 Bellanira Rosales-Calderon
03/22/2017 204015 501 15.09 Hector Reyes
03/22/2017 204027 501 38.17 Perla Aldama
03/22/2017 204029 501 15.85 Teresita Castaneda
03/22/2017 204030 501 18.15 Guillermo Velasco
03/22/2017 204033 501 18.15 Maria Garcia
03/22/2017 204036 501 18.15 Humberto Gonzalez
03/22/2017 204041 501 39.98 Davinder Singh
03/22/2017 204042 501 81.85 George Bengston
03/22/2017 204043 501 31.79 Dennis Mc Swain
03/22/2017 204046 501 45.43 Jacob Dale
03/22/2017 204051 501 18.15 Samantha Veyna
03/22/2017 204053 501 18.15 Sean Shearer
03/22/2017 204065 501 27.85 Guadalupe Perez
03/22/2017 204076 501 65.39 Sabrina Wingate
03/22/2017 204080 501 33.67 Nationstar Mortgage LLC
03/22/2017 204089 501 33.67 Jose Cervantes
03/22/2017 204097 501 33.67 Harbhajan Gakhal
119
03/22/2017 204099 238 40.00 Edward John Vierra
03/31/2017 204274 501 100.00 Jacob Chandler
03/31/2017 204288 501 54.79 Mathew Morales
04/21/2017 204595 601 187.93 Los Banos Express Oil & Lube 05/12/2017 204948 501 16.81 Rebecca Patino
05/26/2017 205144 100 525.70 Los Banos Vet Clinic
06/16/2017 205466 501/502 20.00 Robert Birdsall
08/18/2017 206487 501 15.14 John Lopez
09/08/2017 206816 501 83.00 Anderson Homes
09/29/2017 207190 100 20.00 Eduardo Solis
10/06/2017 207307 501 33.17 Falasco Law Offices
10/20/2017 207481 501 45.21 Maya Garcia
01 /19/2018 208867 501 19.81 Alejandro Machucha Robles
02/02/2018 209064 501 22.14 Trang Thuy Thi Pham
02/02/2018 209066 501 22.14 Rachel Medina/Garcia
02/02/2018 209160 501 80.06 Flora Latronica
03/30/2018 210023 501 86.51 Duke Partners II, LLC
03/30/2018 210072 100 36.00 Eduardo Solis
04/06/2018 210182 100 120.00 Eduardo Solis
04/13/2018 210274 501 44.82 Sharon Woo
05/10/2018 210710 236 16.38 Kevin Warkentin
06/29/2018 211403 100 103.75 Johnnie's Cleaners
08/15/2018 212123 501 87.00 Anthony Gonzales
08/15/2018 212144 501 90.73 LB Clothing Co
08/15/2018 212148 501 25.01 Dionicio Flores
08/15/2018 212163 501 44.82 Rita and Timothy Brosnan
08/17/2018 212271 501 51.48 Kelly O'Keefe
11/09/2018 213505 501 30.79 Edson Fontoura
11/09/2018 213519 501 68.28 Joseph Pena
11/16/2018 213607 501 91.34 Michael Nguyen
11/16/2018 213680 501 16.63 Sherry Laughman
Kimberly A. Tomas
City Treasurer
120
LOsBanos
TO:
FROM:
DATE:
Agenda Staff Report
Mayor Faria & City Council Members
Sonya Williams~ e Director
January 19, 2022
, JI' '
SUBJECT: Adopt a resolution authorizing the City Manager to temporarily charge a flat rate for late penalties for delinquent water, wastewater and solid waste services.
TYPE OF REPORT: Consent Agenda Item
Recommendation:
It is recommended that the City Council adopt a resolution authorizing the City Manager to temporarily charge a flat rate for late penalties for delinquent water, wastewater, and solid waste services for a 60-day period.
Background:
The COVID-19 pandemic has had a significant financial impact on the city's utility customers. In response to financial hardships felt statewide, California instituted a moratorium on water disconnections in March 2020, which was extended through December 31, 2021. Unfortunately, this moratorium resulted in an increase of outstanding account balances.
As of December 2021, more than 1600 customers owed a combined total of $1,123,547 in overdue balances. This is more than 3 times what was owed in December of 2019, prior to the pandemic.
In the first six months of the current fiscal year we have billed approximately $690,000 in late payment charges, prior to the pandemic we billed approximately $500,000 for the entire fiscal year.
121
ITEM 8G
Typically, fees range from $12 to $30, however due to the unusually high account balances fees are being charges in the hundreds of dollars each month.
Temporarily adjusting the late penalty from 15% to a flat rate of $15 will provide a small measure of relief to both Los Banos citizens and business owners. The resolution authorizes the City Manager to temporarily charge a flat rate for late penalties for water, wastewater, and solid waste services, beginning February 1, 2022 effect for a 60- period.
Fiscal Impact:
The inflated monthly late fees are approximately $115,000, adjusting to a flat rate would generate approximately $35,000 in revenues. A decrease of $80,000 per month.
However, the temporary adjustment will not impact the budget, the flat rate will more accurately represent what wt3-s budgeted for FY 2021/2022. ))
\. Attachments:
Resolution
122
RESOLUTION NO. __
A RESOLUTION OF THE CITY OF LOS BANOS AUTHORIZING
THE CITY MANAGER TO CHARGE A FLAT RATE FOR LATE
PENAL TIES FOR DELINQUENT WATER, WASTEWATER, AND
SOLID WASTE SERVICES
. . WHEREAS, the Los Banos Municipal Code established various requirements related to the utility billing procedures specifically penalties for late payment; and
WHEREAS, temporarily charging a flat rate in lieu of a percentage may provide a small measure of relief for Los Banos utility customer and business owners who may be adversely impacted by the economic circumstances as a result of the COVID-19 virus situation; and
WHEREAS, the City Council of the City of Los Banos believes it is in the best interest of the citizens and business owners of Los Banos to temporarily charge a flat rate for late penalties for a 60-day period, beginning February 1, 2022;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Los Banos herby authorizes that a flat rate of $15 per month shall be assessed for all delinquent water, wastewater, and solid waste accounts, effective February 1, 2022 and expiring March 31, 2022.
The foregoing resolution was introduced at a regular meeting of the Los Banos City Council held on the 19th day of January 2022, by Council Member _____ who moved for its adoption, which motion was duly seconded by Council Member ______ , and the Resolution was adopted by the following vote:
AYES:
NOES:
ABSENT:
APPROVED:
Manuel Thomas Faria Ill, Mayor
ATTEST:
Lucille L. Mallonee, City Clerk
123
124
TO:
FROM:
DATE:
LOsBanos
Al the C,c ,oa 1 ,~/ Calij,n nlH
Agenda Staff Report
Mayor and City Council Members
Nichol Bowersox, P. E., Acting Public Works Director vtob Joe Heim, Parks and Recreation Operations Manager~ ....
January 19, 2022
TYPE OF REPORT: Consent Agenda
SUBJECT: Authorizing the city Manager to develop and submit an application for the Rural Recreation and Tourism Program grant
Recommendation:
That the City Council adopt the Resolution authorizing the City Manager to develop and submit an application for the Rural Recreation and Tourism program grant.
Background:
On June 5, 2018 California voters approved Proposition 68, authorizing $4 billion in general obligation bonds for State and local parks, environmental projection projects, water infrastructure projects, and flood protection projects. The Rural Recreation and tourism Program (RRT) is a competitive grant through the California Department of Parks and Recreation and funded by Proposition 68. The grant will create new recreation features in support of economic, tourism and health related goals. To qualify as rural, the project site must be in a county with a population below 500,000 people and in a city/town/census designated place that has a population below 50,000 people.
There is approximately $23,125,000.00 available statewide for the grant. The project must include the creation of one new recreation feature, but may also include the renovation of other elements. Eligible examples include, skate parks, shade structures and athletic fields and may include supporting amenities such as parking lots and landscaping. The maximum request per application is $3,000,000.00 and no funding match is required if the median household income is lower than $56,982.00. Other requirements include environmental elements, CEQA compliance, and volunteer inclusion. Grant applications are to be submitted by January 20th, 2022.
125
ITEM 8H
Discussion:
Colorado Ballpark is located at 815 Colorado Ave. and features three ballfields, a skate park, two tennis courts, a restroom and a large parking lot. Colorado Ballpark has a median household income of $40,157.00 and is an eligible project site for the grant.
The proposed improvements to Colorado Ballpark includes the rehabilitation to the three ballfields on-site, a relocation of the tennis courts, a re-design of the skate park and the addition of an asphalt pump track. Other improvements include parking lot improvements, landscaping improvements and the addition of pathway and plaza areas.
The Colorado Ballpark ballfields have been host to the Los Banos Little league since 1969 and have deteriorated in condition. The Park is one of Los Banos' oldest parks and contains galvanized piping for irrigation that causes pressure issues for watering the ballfields. Overtime the field has also developed uneven areas that require grading.
Additionally, plaza spaces and new pathways will provide ADA access to the site's amenities. A pathway lining the outfield of the south field and through the skate park area will provide a walking track for visitors.
The Colorado Ballpark tennis courts are the only tennis courts in the Los Banos public park system. While tennis' popularity has declined, there are still players that enjoy playing at the Colorado Ballpark courts. The courts are showing signs of age and require rehabilitation. The tennis courts may be lined for other related court games, including up to four pickleball courts.
The Colorado Ballpark skate park is a popular destination for teens in Los Banos. The current skate park is a small, shallow bowl, which lacks a run-up pathway to gain momentum. A re-design of the skate park will provide Los Banos with a long-term skate park that is anticipated to become one of Los Banos' most popular amenities. In addition to the skate park, a new recreation feature is required by the grant to be added to the park.
The proposed new amenity is a BMX pump track, which is an increasingly popular action sport amenity that will fulfill recreation and tourism requirements for the grant. The pump track's surface will be asphalt and it would be the only pump track in Merced County.
Other park improvements include landscaping and parking lot improvements. The proposed changes include widening the entrance to allow easier access and adding parking lot islands to prevent inappropriate vehicle use. Diagonal parking along Colorado Ave. will be extended the entire length of the park. Proposed upgrades to the restroom will include new fixtures and stalls. Environmental additions include the development of the bioswale along the north side of the park and the addition of over 40 new trees.
Pursuant to the California Environmental Quality Act (CEQA) and the City of Los Banos Environmental Quality Guidelines, it is anticipated that this project is found to be categorically exempt from the provisions of CEQA - Article 19, Section 15301©(d)(e), 15302(b ), 15303( e ), and 15304(b ). The project consists of minor alterations to pedestrian walkways and street trees, restoration/rehabilitation of deteriorated structures to meet current public health and safety standards, minor additions to existing facilities and new landscaping. The proposed project includes no expansion of an existing use. The proposed project will not involve the removal of healthy or scenic trees. Additionally, the proposed project is not in a sensitive environment, and there are no cumulative impacts, 126
unusual circumstances, or other limiting factors that would make the exemption inapplicable based on the proposed project's scope.
If awarded the grant, the project site, Colorado Ballpark, would need to remain a park location for 30 years after the grant performance period, which begins June 30, 2025.
The grant allows a maximum request of $3,00,000.00. Due to the extent of the park's rehabilitation, a matching amount of $1,311,769.77 is included to create a project total of $4,311,769.77. The matching amount can be provided by the Park Development Fund, or by the General Fund. The additional matching amount provides funding for engineering and project management and allows for the complete rehabilitation of the park. Colorado Ballpark is one of Los Banos' most well-known parks and improvements would lead to increased use by Los Banos Little League and the community.
Fiscal Impact:
The Fiscal Impact of the project is a total of $4,311,769.77. $3,000,000.00 of this funding is reimbursable from the grant award. If the grant is awarded the remaining $1,311,769.77 would need to be matched by City.
( J
~
,
S~ Finance Director
Attac ments:
Resolution
Proposed Colorado Ballpark Conceptual Plan
127
128
RESOLUTION NO. __
A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF LOS BANOS APPROVING THE
APPLICATION SUBMISSION FOR THE RURAL
RECREATION AND TOURISM PROGRAM
GRANT
WHEREAS, the State Department of Parks and Recreation has been delegated the responsibility by the Legislature of the State of California for the administration of the Rural Recreation and Tourism Grant Program, setting up necessary procedures governing the application; and
WHEREAS, said procedures established by the State Department of Parks and Recreation require the Applicant to certify by resolution the approval of the application before submission of said application to the State; and WHEREAS, successful Applicants will enter into a contract with the State of California to complete the Grant Scope project;.
WHEREAS, pursuant to the California Environmental Quality Act (CEQA) and the City of Los Banos Environmental Quality Guidelines, the Colorado Ballpark Project has been determined to be categorically exempt from the provisions of CEQA per Article 19, Section 15301(c)(d)(e), 15302(b}, 15303(e), and 15304(b) for Colorado Ballpark, located at 815 Colorado Ave.;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Los Banos hereby approves the filing of an application for the Colorado Ballpark Project; and
1. Certifies that said Applicant has or will have available, prior to commencement of any work on the project included in this application, the sufficient funds to complete the project; and
2. Certifies that if the project is awarded, the Applicant has or will have sufficient funds to operate and maintain the project, and
3. Certifies that the Applicant has reviewed, understands, and agrees to the General Provisions contained in the contract shown in the Grant Administration Guide; and
4. Delegates the authority to the City Manager to conduct all negotiations, sign and submit all documents, including, but not limited to applications, agreements, amendments, and payment requests, which may be necessary for the completion of the Grant Scope; and
5. Agrees to comply with all applicable federal, state and local laws, ordinances, rules, regulations and guidelines.
6. Will consider promoting inclusion per Public Resources Code §80001(b)(8 A-G). 129
The foregoing Resolution was introduced at a regular meeting of the City Council of the City of Los Banos held on the 19th day of January 2022, by Council Member ___ who moved its adoption, which motion was duly seconded by Council Member ___ and the Resolution adopted by the following vote:
AYES:
NOES:
ABSENT:
APPROVED:
Manuel Thomas Faria Ill
ATTEST:
Lucille L. Mallonee, City Clerk
130
LEGEND
8 Warm-UpAru: R~rede, Seed,
and lmpl'O\le Irrigation
C Picnic Area,1nstaJI Picnic Tables
D Six Foot (6') Asphalt Tr•il
E Sports Action Park (Skelepartt.)
F 12•-14• Height So lat Lighting
G Chain Unk Fencing
H BWIPumpTrack
K Decompoaed Granite (DG)
L TenniJ, couna wtth Sour Lighting
M ConcretePl&ui
N Shipe for Diagonal Perking
O Conc.-.ta Sidewalk
p Shade TrNS and lnlgation
lmpfO'HlmffltlJ
Q . Coral Fencing
R Widen Driwway Entrance
at Stl"Mt Pavement
T Slurry Se.I and Stripe Parking Lot
LJ Botlardl at Piau. Edge
V RestrlpeforVehicularDrop,Off
W Monument Sign
X 9,000 SF Coneref.e Plaza with BenchH
Y New Sconlboald (3 Places)
131
132
T Cityof B LOS anos
Agenda Staff Report
TO: Mayor Faria and City Council Members
FROM:
DATE:
Stacy Souza Elms, Community and Economic Development Director ~ January 19, 2022
TYPE OF REPORT: Agenda Item
SUBJECT: Consideration of a Pre-Annexation Development for AMG and Associates Recommendation:
Staff recommends that the City Council:
Waive the second reading and adopt Ordinance No. 1193 authorizing the execution of a Pre-Annexation Development Agreement between the City of Los Banos and AMG & Associates, LLC relative to the property located at the southeast corner of Overland Avenue and Johnson Road, Merced County, California, more specifically identified as Assessor's Parcel Number: 081-110-007.
Background:
On November 12, 2014, the Los Banos Planning Commission recommended approval of the AMG Industrial Annexation and Prezone with associated Mitigated Negative Declaration (MND) and Pre-Annexation Development Agreement for the Annexation of approximately 28.5 acres into the City of Los Banos. Subsequently, on January 7, 2015, the Los Banos City Council approved the AMG Industrial Annexation and Pre-zone, MND, and Pre-Annexation Development Agreement.
Following City Council approval, the project was submitted to the Merced County Local Agency Formation Commission (LAFCo) to consider the annexation into the incorporated city limits of the City of Los Banos. The LAFCo Board reviewed the proposal and recommended a re-evaluation of the environmental document for issues relating to inconsistencies within the City's General Plan Environmental Impact Report (EIR) and the I
133
ITEM 9
project's proposed Mitigated Negative Declaration. As a result, the Annexation was never approved by LAFCo and the associated Pre-Annexation Development Agreement was never executed/recorded by the City of Los Banos.
In 2017 the City remedied the inconsistencies within the 2030 General Plan and EIR by preparing a Subsequent EIR (SCH#2016051033) and General Plan Land Resources Amendment which was adopted by the Los Banos City Council on September 6, 2017.
Following the approval of the Subsequent General Plan EIR, the applicant pursued the revisions to the AMG Industrial Annexation Mitigated Negative Declaration in 2020, which the City has been working with JS Anderson Land Use Planning on the preparation of the Subsequent MND (SCH #2014091056).
Since the project was previously entitled in 2015 by the Los Banos City Council, the current proposal before the City Council is for the approval of the Subsequent Mitigated Negative Declaration and revised Pre-Annexation Development Agreement. The original approval of the Annexation and Prezone in 2015 remain as valid entitlements.
The Los Banos Planning Commission held a Public Hearing on this matter on December 8, 2021 and recommended approval of Mitigated Negative Declaration (SCH #2014091056) for the AMG Industrial Annexation and Pre-Annexation Development Agreement for AMG & Associates to the Los Banos City Council for consideration.
On January 5, 2022, the Los Banos City Council held a public hearing and adopted Resolution No. 6444 approving Subsequent Mitigated Negative Declaration (SCH #2014091056) and associated Mitigation Monitoring Program for AMG & Associates, LLC.
Discussion:
The Project site is located adjacent to the City of Los Banos in Merced County. As depicted on the map below, the project site is surrounded by City boundaries on three sides (colored areas). The parcel is approximately 28.5 acres and is bound by Overland Avenue to the north (unincorporated), developed residential property to the east, partially developed Industrial property to the south, and Johnson Road and Kagome Food Processing to the west.
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ENVIRONMENTAL ASSESSMENT:
Pursuant to the California Environmental Quality Act (CEQA) and the City of Los Banos Environmental Quality Guidelines, a Subsequent Initial Study was prepared to identify and assess potential environmental impacts as a result of this project. Through the Subsequent Initial Study, staff determined that the project would not result in any significant adverse effects with the incorporation of mitigation measures.
Staff prepared a Notice of Intent for Subsequent Mitigated Negative Declaration (SCH #2014091056) which was posted at the Merced County Clerk's Office and sent to the State Clearinghouse for circulation and review by various agencies on October 19, 2020 and closed on November 18, 2020. The Notice of Intent was also published in the Los Banos Enterprise on October 19, 2020 to allow the public to comment on the Subsequent Initial Study/Mitigated Negative Declaration. Comment letters were received by the Department of Conservation, Department of Toxic Substances Control, the Laborers International Union of North America Local Union 1130 (LIUNA), and the Merced County Local Agency Formation Commission (LAFCo). The letters received are included with this staff report as Attachment 3 and the City's response to these letters are included as Attachment 4.
A Mitigated Negative Declaration is appropriate when an initial study has been prepared and a determination can be made that no significant environmental effects will occur because mitigation measures will be implemented which will reduce all potentially significant impacts to less than significant levels.
Applicable mitigation measures have been incorporated into the Mitigation Monitoring Program and have reduced any potential impacts to less than significant. 3 135
ANNEXATION ANALYSIS
The proposed annexation provides a logical boundary, as required by Merced County LAFCo annexation policies. The annexation area is an in-fill of an area south of Overland Avenue. Land to the east, south, and west of the property are already within the City limits, and the project site is presently the only area on the south side of Overland Avenue between Mercey Springs Road and Johnson Road that is not within the City limits. The annexation request includes the entire right-of-way width of Overland Avenue. If the City approves the annexation request, a formal application will be made to LAFCo for annexation.
Existing General Plan Land Use and Zoning Designations
While the project site is currently located outside the City of Los Banos' jurisdictional boundary, it is within the City's Sphere of Influence. The project site has been given an industrial land use designation in the City's General Plan, and the goals and policies of the General Plan are applicable.
Currently allowed uses and development standards are those associated with the County's present zoning designation of City Plan Area and Merced County General Plan designation of General Agriculture (A-1). The applicant is requesting the proposed property be pre-zoned and incorporated into the City limits in the City of Los Banos Industrial Zoning District.
Economic Development
Merced County, through the Comprehensive Economic Development Strategy (CEDS) process, coordinated a community walk-thru with a professional Site Selector in November 2013 and 2018. The visit with Los Banos determined that our weaknesses consisted of a lack of industrial inventory and a lack of shovel ready projects. The following items were identified by the Site Selector as being the most important to be competitive with surrounding communities:
✓ Inventory of Ready Building & Sites
✓ Appropriate Utility Infrastructure
✓ Labor Force Ready to Work (documented)
✓ Streamlined Permitting Process
✓ Community Support for Industry
Entitling this project site would help Los Banos take a step forward in strengthening the inventory of shovel ready industrial projects in order to compete with similar communities.
Community Amenity Fee
Resolution 5045 was adopted by the Los Banos City Council July 2008 that establishes an amenity fee for new annexations into the City of Los Banos. The resolution states that the City will support annexation proposals based upon the overall benefit to the City.
Options to address City benefit include the following strategies:
a) Payment of a Community Amenity Fee to be used for financing or constructing community facilities as determined by the City Council, or 4 136
b) Construction of financing of public improvements which add to the quality of life for the existing and future residents of the City, or
c) Other amenities or contributions as may be approved by the City Council, or d) Development of industrial or regional retail land uses, or e) Contribution towards meeting the City's non-market rate housing needs as stated in the Housing Element, or
f) A combination of the above.
The project proposal is considered a benefit to the community as it is providing industrial land for future development into the incorporated City limits. The addition of industrial property to the City's weak inventory is a benefit to the community and as such the project would not be subject to the Community Amenity Fee.
Pre-Annexation Development Agreement
Development Agreement Law and annexation law permits cities and counties to contract with private interests (property developers) for their mutual benefit in a manner not otherwise available to the contracting parties. These agreement, as authorized by the Development Agreement Law and by common law, assure property developers that they can proceed with their projects with the assurance that approvals granted by public agencies will not change during the period of development. Cities and counties are equally assured that costly infrastructure, including but not limited to roads, sewers, fire protection facilities, will be available at the time development projects come on line.
The benefits of the proposed Pre-Annexation Development Agreement to the City are:
a) Adoption of a Specific Plan to be approved by the City for the entire 28.5 acre Project Site prior to any application for further entitlements or development. b) Formation or annexation of the Property to a Community Facilities District (CFO) created for the purpose of funding public safety.
c) Formation or annexation of the Property to a Lighting and Landscaping District (L&LD) created for the purpose of maintaining public landscape areas, signage, and public lighting and traffic signal maintenance.
PUBLIC COMMENT:
A public hearing notice was published in the Los Banos Enterprise and notices were mailed out to property owners within a 300' radius of the project site on December 24, 2021 for the hearing on January 5, 2022. As of the date of this staff report no comments have been receiv~ .
i ) n
i I I
Review
Josh Pinhe
V
anager
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Attachments:
1. Ordinance No. 1193
Exhibit A: Pre-Annexation Development Agreement
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ORDINANCE NO.
AN UNCODIFIED ORDINANCE OF THE LOS BANOS CITY COUNCIL
APPROVING A PRE ANNEXATION DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF LOS BANOS AND AMG & ASSOCIATES, LLC FOR THE ANNEXATION OF APPROXIMATELY 28.5 ACRES GENERALLY
LOCATED AT THE SOUTHEAST CORNER OF OVERLAND A VENUE AND
JOHNSON ROAD MORE SPECIFICALLY IDENTIFIED AS ASSESSOR'S PARCEL NUMBER 081-110-007 [AMG INDUSTRIAL BUSINESS PARK ANNEXATION]
WHEREAS, in order to strengthen the public land use planning process, to encourage private participation in the process, to reduce the economic risk of development and to reduce the waste of resources, the Legislature adopted the Development Agreement Law (§ 65864, et seq. of the Government Code).
WHEREAS, the Development Agreement Law and annexation law permits cities and counties to contract with private interests for their mutual benefit in a manner not otherwise available to the contracting parties. Such agreements, as authorized by the Development Agreement Law and by common law, assure property developers that they may proceed with their projects with the assurance that approvals granted by public agencies will not change during the period of development. Cities and counties are equally assured that costly infrastructure, including but not limited to roads, sewers, fire protection facilities, will be available at the time development projects come on line.
WHEREAS, AMG & Associates, LLC ("Developer") has filed an application with the City of Los Banos ("City") to Annex and Pre-Zone approximately 28.5 acres located at the southeast comer of Overland Avenue and Johnson Road, Merced County, California, more specifically identified as Assessor's Parcel Number: 081-110-007 ("Subject Property").
WHEREAS, Developer desires to proceed with site planning with the City after completion of the annexation proceedings. Inasmuch as the Developer has not submitted development plans, and that the City has not had any opportunity to review any specific proposals, the parties agree that the Pre Annexation Agreement ("Agreement") can and should create only limited vested rights, as defined by the terms of the Agreement.
WHEREAS, the parties have, in good faith, negotiated the terms which carry out the legislative purpose set forth above and will assure the parties to this Agreement of mutually desirable development of the Subject Property.
WHEREAS, City, in response to Developer's applications, after public hearings and environmental analysis, has granted approval of the Annexation and Pre-zoning for the Subject Property ("Entitlements").
WHEREAS, in support of the Entitlements described herein, and in accord with the California Environmental Quality Act (CEQA) and State and City guidelines, City has accepted 139
and approved a mitigated negative declaration and subsequent mitigated negative declaration dated October 16, 2020 for the foregoing entitlements and this Agreement.
WHEREAS, parcel maps, vesting tentative subdivision maps, tentative subdivision maps, general and final development plans, final subdivision maps, design review, improvement plans, issuance of building permits, or any other entitlements necessary for the development of the Subject Property, shall be subject to prior approval of (a) a Specific Plan for the entire Subject Property; (b) a Finance and Implementation Plan; (c) a second tier Development Agreement for individual parcels within the Specific Plan area; (d) and/or other required permits or approvals issued by the City.
WHEREAS, development of the Subject Property pursuant to the terms and conditions of the Agreement, pre-zoning, the specific plan, and appropriate environmental determinations will provide for orderly growth and development consistent with the City's General Plan and other development policies and programs.
WHEREAS, on December 8, 2021, the City Planning Commission considered the Agreement, and recommended its adoption to the City Council.
WHEREAS, having duly considered the Agreement and having held the noticed public hearings, City finds and declares that the provisions of the Agreement are consistent with the maps and text of the City's General Plan.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF CITY OF LOS BANOS DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The above recitals are true and correct.
SECTION 2. This Ordinance incorporates, and by this reference makes a part hereof, the Pre Annexation Development Agreement attached hereto as Exhibit A, subject to the provisions of Section 6 hereof.
SECTION 3. This Ordinance is adopted under the authority of Government Code Section 65864 et seq.
SECTION 4. The City Council hereby finds and determines, as follows:
(a) the Agreement is consistent with the objectives, policies, general land uses and programs specified in the General Plan, in that it establishes certain development rights, obligations and conditions for the implementation of AMG Industrial Business Park Annexation Project;
(b) the Agreement is compatible with the uses authorized in, and the general plan designations which will apply to the Property;
(c) the Agreement is in conformity with public convenience, general welfare and good land use practice;
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( d) the Agreement will not be detrimental to the public health, safety and general welfare; and
(e) the Agreement will not adversely affect the orderly development of property or the preservation of property values.
SECTION 5. The foregoing findings and determinations are based upon the following:
(a) The Recitals set forth in this Ordinance, which are deemed true and correct; (b) Resolution No. 5628, approved by the City Council on December 3. 2014, making findings as to the Mitigated Negative Declaration, including the Mitigation Monitoring and Reporting Program approved by and incorporated in said Resolution, which Resolution and exhibits are incorporated herein by reference as if set forth in full; (c) Resolution No. 5629 approved by the City Council on January 7, 2015 requesting the Annexation and Pre-Zone of approximately 28.5 acres of property located at the southeast comer of Overland A venue and Johnson Road, Merced County, California, more specifically identified as Assessor's Parcel Number: 081-110-007 which Resolution and exhibits are incorporated herein by reference as if set forth in full; (d) Ordinance No. 1124 approved by the City Council on January 7, 2015, amending the Zoning Map to Pre-Zone approximately 28.5 acres located at the southeast comer of Overland Avenue and Johnson Road, Merced County, California, more specifically identified as Assessor's Parcel Number: 081-110-007 which Ordinance and exhibits are incorporated herein by reference as if set forth in full; (e) Resolution No. , approved by the City Council on _____ . 202 , -- - - making findings as to the Subsequent Mitigated Negative Declaration dated October 16, 2020, including the Mitigation Monitoring and Reporting Program approved by and incorporated in said Resolution, which Resolution and exhibits are incorporated herein by reference as if set forth in full;
(f) The City's General Plan;
(g) All City staff reports (and all other public reports and documents) prepared for the Planning Commission, City Council, or others relating to the Mitigated Negative Declaration, the pre Zone, the Development Agreement, and other actions relating to the Property;
(h) All documentary and oral evidence received at public hearings or submitted to the Planning Commission, or City during the comment period relating to the Mitigated Negative Declaration and Subsequent Mitigated Negative Declaration, the pre Zone, the Development Agreement, and other actions relating to the Property; and (i) All other matters of common knowledge to the City Council, including, but not limited to the City's fiscal and financial status; City general ordinances, policies and regulations.
SECTION 6. The City Council hereby approves the Pre Annexation Development Agreement, attached hereto as Exhibit A, subject to the provisions of Section 7 hereof, and subject further to such minor, conforming and clarifying changes consistent with the terms thereof as may be approved by the City Manager, in consultation with the City Attorney prior to execution thereof.
SECTION 7. The approval contained in Section 6 hereof is subject to and conditioned upon Resolution No. 5628; Resolution No. 5629; Ordinance No. 1124; Resolution No. __ ; and the 141
approval of the AMO Industrial Business Park Annexation by Merced County Local Agency Formation Commission.
SECTION 8. Upon the effective date of this Ordinance as provided in Section 10 hereof, the Mayor and City Clerk are hereby authorized and directed to execute the Agreement on behalf of the City of Los Banos.
SECTION 9. The City Manager is hereby authorized and directed to perform all acts authorized to be performed by the City Manager in the administration of the Agreement pursuant to the terms of the Agreement.
SECTION 10. This Ordinance shall be in full force and effect thirty (30) days after its passage and adoption; provided, however, that if the actions referred to in Section 7 hereof are not effective on such date, then the effective date of this Ordinance shall be the date on which all of said actions become effective, as certified by the City Clerk and cause the same to be posted and published once within fifteen days after passage and adoption as may be required by law; or, in the alternative the City Clerk may cause to be published a summary of this Ordinance and a certified copy of the text of this Ordinance shall be posted in the Office of the City Clerk five days prior to the date of adoption of this Ordinance; and, within fifteen days after adoption, the City Clerk shall cause to be published, the aforementioned summary and shall post a certified copy of this Ordinance, together with the vote for and against the same, in the Office of the City Clerk.
Introduced by Council Member ____ and seconded by Council Member _ ___ _ on the __ day of ____ ~ 202
Passed on the __ day of ____ ~ 202 _ by the following vote:
AYES: Council Members
NOES:
ABSENT:
APPROVED:
Manuel Thomas Faria III, Mayor
ATTEST:
Lucille L. Mallonee, City Clerk
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EXHIBIT A
[PRE ANNEXATION DEVELOPMENT AGREEMENT]
143
144
RECORDING REQUESTED BY
AND WHEN RECORDED, MAIL TO
CITY CLERK
CITY OF LOS BANOS
520 J Street
Los Banos, CA 93635
Exempt from Recording Fees
Pursuant to Gov't Cd 6103
PRE-ANNEXATION
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF LOS BANOS AND
AMG & ASSOCIATES, LLC
RELATIVE TO THE
AMG INDUSTRIAL BUSINESS PARK ANNEXATION
_ ___ ,202_
THIS DOCUMENT, INCLUDING EXHIBITS, TOTALS __ PAGES.
EACH PAGE IS "BATES STAMPED" SEQUENTIALLY IN THE LOWER RIGHT HAND CORNER.
145
146
PRE-ANNEXATION
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF LOS BANOS AND
AMG & ASSOCIATES, LLC
RELATIVE TO THE
AMG INDUSTRIAL BUSINESS PARK ANNEXATION
THIS PRE-ANNEXATION DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this _day of ____ , 202_, by and between the CITY OF LOS BANOS, a municipal corporation ("City"), and AMG & ASSOCIATES, LLC, a California Limited Liability Company ("Developer"), pursuant to the authority of Article 2.5, Chapter 4, Division 1, Title 7 (§ 65864, et seq. of the Government Code) relating to Development Agreements, and pursuant to annexation law.
RECITALS
1. In order to strengthen the public land use planning process, to encourage private participation in the process, to reduce the economic risk of development and to reduce the waste of resources, the Legislature adopted the Development Agreement Law(§ 65864, et seq. of the Government Code).
2. The Development Agreement Law and annexation law permits cities and counties to contract with private interests for their mutual benefit in a manner not otherwise available to the contracting parties. Such agreements, as authorized by the Development Agreement Law and by common law, assure property developers that they may proceed with their projects with the assurance that approvals granted by public agencies will not change during the period of development. ·cities and counties are equally assured that costly infrastructure, including but not limited to roads, sewers, fire protection facilities, will be available at the time development projects come on line.
3. Developer has filed an application with the City of Los Banos ("City") to Annex and Pre-Zone approximately 28.5 acres located at the southeast comer of Overland Avenue and Johnson Road, Merced County, California, more specifically identified as Assessor's Parcel Number: 081-110-007 ("Subject Property").
4. Developer desires to have the Subject Property annexed to the City and to have the Property zoned as General Industrial (I), as set forth in Title 9, Chapter 3, Article 15 of the Los Banos Municipal Code which designation would permit the Subject Property to be used for industrial uses and associated improvements.
5. The Subject Property is adjacent to and contiguous to the existing corporate boundary of the City, but is not situated within the limits of any municipality.
6. The Subject Property has zero (0) registered voters residing thereon. 147
7. Developer desires to proceed with site planning with the City after completion of annexation proceedings. Inasmuch as the Developer has not submitted development plans, and that the City has not had any opportunity to review any specific proposals, the parties agree that this Agreement can and should create only limited vested rights, as defined by the terms of the Agreement.
8. The parties have, in good faith, negotiated the terms hereinafter set forth which carry out the legislative purpose set forth above and will assure the parties to this Agreement of mutually desirable development of the Subject Property.
9. Developer owns in fee or has an equitable interest in the Subject Property, more particularly described on Exhibit "A" hereto, located adjacent to the City of Los Banos.
10. City, in response to Developer's applications, after public hearings and environmental analysis, has granted approval of the annexation and pre-zoning for the Subject Property (hereinafter the "Entitlements").
11. In support of the Entitlements described in paragraph 10 above, and in accord with the California Environmental Quality Act (CEQA) and State and City guidelines, City has accepted and approved a mitigated negative declaration and a subsequent mitigated negative declaration dated October 16, 2020 for the foregoing entitlements and this Agreement.
12. Parcel maps, vesting tentative subdivision maps, tentative subdivision maps, general and final development plans, final subdivision maps, design review, improvement plans, issuance of building permits, or any other entitlements necessary for the development of the Subject Property, shall be subject to prior approval of (a) a Specific Plan for the entire Subject Property; (b) a Finance and hnplementation Plan - based upon a fiscal impact analysis; and (c) and/or other required permits or approvals issued by the City.
13. Development of the Subject Property pursuant to the terms and conditions of the pre-zoning, the Specific plan, and appropriate environmental determinations will provide for orderly growth and development consistent with the City's General Plan and other development policies and programs.
14. On December 8, 2021, the City Planning Commission considered this Agreement, and recommended its adoption to the City Council.
15. Having duly considered this Agreement and having held the noticed public hearings, City finds and declares that the provisions of this Agreement are consistent . with the maps and text of the City's General Plan.
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NOW, THEREFORE, the parties hereto agree as follows:
ARTICLEl
GENERAL PROVISIONS
Section 1.1. The Project. The Project is the annexation, and pre-zoning for the potential industrial development of approximately 28.5 acres of land located at the corner of Johnson Road and Overland A venue.
Section 1.2. Subject Property. The Subject Property is approximately 28.5 acres identified as Merced County Assessor's Parcel Number 081-110-007, generally located at the corner of Johnson Road and Overland Avenue. The Subject Property is more particularly described in Exhibit "A", attached hereto and incorporated herein by this reference and made a part of this Agreement.
Section 1.3. Definitions. As used in this Agreement, the following terms, phrases . and words shall have the meanings and be interpreted as set forth in this Section. (a) Adopting Ordinance means Ordinance Number __ entitled: · Pre Annexation Development Agreement By and Between the City of Los Banos and AMG & Associates, relative to the AMG Industrial Business Park Annexation, dated _____ _, 202_, and effective _____ _, 202_, which approves this Agreement as required by Government Code section 65867.5. (b) Assumption Agreement means an agreement substantially conforming to the model assumption agreement described in Exhibit ''B" or other agreement in a form approved by the City Attorney, executed by a Landowner with the Developer, expressly assuming various obligations relating to the development of the Project, or portion thereof.
(c) CEQA means the California Environmental Quality Act section 21000 et seq., of the Public Resources Code of the State of California. ( d) City means the Los Banos City Council, or its designee. ( e) City Laws means ordinances, resolutions, rules, regulations, policies, motions, directives, mitigation measures, conditions, standards, specifications, dedications, fees, taxes (including without limitation general, special and excise taxes), assessments, liens, other exactions and impositions, and any other actions having the force of law, . that .are enacted or adopted by City, or by its electorate through the initiative or referendum process.
(f) Developer means AMG & Associates, LLC or successor in interest. (g) Director means the Community and Economic Development Director, or 149
designee for the City of Los Banos.
(h) Effective Date means the effective date of the Adopting Ordinance. (i) Entitlements shall mean those approvals listed in Recital 10 including any and all conditions of approval and mitigation measures.
G) General Plan means the General Plan of the City, including the text and maps, as may have been amended in connection with the Project. (k)·Landowner is a party who has acquired any portion of the Subject Property from the Developer who, unless otherwise released as provided in this Agreement, shall be subject to the applicable provisions of this Agreement. (1) Reserved Powers shall mean those powers explicitly reserved to the. City by this Agreement.
(m) Subject Property and/or Project Site means the property described in Section 1.2, or the remaining portions thereof after releases from the provisions of this Agreement have been executed as authorized by this Agreement.
Section 1.4. Exhibits. Exhibits to this Agreement are as follows:
Exhibit "A" Subject Property
Exhibit ''B" Assumption Agreement
Exhibit "C" Special Conditions and Requirements
Exhibit "D" Sample Notice of Termination
Section 1.5. Incorporation of Exhibits and Recitals. Exhibits A - D and Recitals 1 through 15 are incorporated herein, including all exhibits referred to in said Recitals. In the event of inconsistency between the Recitals and the provisions of Articles 1 through 5, the provisions of Articles 1 through 5 shall prevail.
Section 1.6. Parties to Agreement. The parties to this Agreement are:
(a) The City of Los Banos. A municipal corporation exercising general governmental functions and powers. The principal office of the City is located at 520 J Street, Los Banos, California 93635.
(b) Developer. Developer owns in fee or has an equitable interest in the Subject Property. The principal office of Developer is 16663 Ventura Blvd., Encino CA 91436:
(c) Landowner. From time to time, as provided in this Agreement, Developer may sell or otherwise lawfully dispose of a portion of the Subject Property to a Landowner who, unless otherwise released, shall be subject to the applicable provisions of this Agreement related to such portion of the Subject Property. 150
Section 1.7. Proiect is a Private Undertaking. It is agreed among the parties that the Project is a private development and that the City has no interest therein except as authorized in the exercise of its governmental functions.
Section 1.8. Term of Agreement. This Agreement shall commence upon the Effective Date of the Adopting Ordinance approving this Agreement. Pursuant to California Government Code section 65865(b ), this Agreement shall not become operative unless annexation proceedings annexing the Subject Property to the City are completed within two (2) years of the Effective Date of the Adopting Ordinance. This Agreement shall automatically terminate if either (a) the annexation proceedings are terminated for any reason; or (b) the completion of the annexation (recordation of a Certificate of Completion) does not occur on or before two (2) years from the Effective Date, which two (2) year period may be extended by the City Council.
Notwithstanding 'the forgoing, Developer or its successors shall have the right, upon ten (10) day's prior written notice to City, to terminate this Agreement prior to LAFCO's issuance of a Certificate of Completion of the annexation (and the running .· of all applicable statutes of limitations related thereto) if it determines in its sole discretion that it is in its best interest to do so, and, in such event, City agrees to withdraw the Resolution then pending before LAFCO.
Upon becoming operative, this Agreement shall continue in force for a period of twenty (20) years from the Effective Date unless terminated as provided herein. Following the expiration of the term, or if sooner terminated, this Agreement shall have no force and effect, subject however, to post-termination obligations of Developer or Landowner, if any.
Section 1.9. Assignment and Assumption. Developer shall have the right to sell, assign, or transfer this Agreement with all the rights, title and interests therein to any person, firm or corporation at any time during the term of this Agreement. The conditions and covenants set forth in this Agreement and incorporated herein shall run with the land and the benefits and burdens shall bind and inure to the benefit of the parties. Developer shall provide City with a copy of the Assumption Agreement. Express written assumption by such purchaser, assignee or transferee, to the satisfaction of the City Attorney, of the obligations and other terms and conditions of this Agreement with respect to the Subject Property or such portion thereof sold, assigned or transferred, shall relieve the Developer selling, assigning or transferring such interest of such obligations so expressly assumed. Any such assumption of Developer's obligations under this Agreement shall be deemed to be to the satisfaction of the City Attorney if executed in the form of the Assumption Agreement attached hereto as Exhibit ''B" and incorporated herein by this reference, or such other form as shall be approved by the City Attorney.
Section 1.10. Covenants Running With the Land. Each and every purchaser, assignee or transferee of an interest in the Subject Property, or any portion thereof, shall be obligated and bound by the terms and conditions of this Agreement, and shall be the beneficiary thereof and a party thereto, but only with respect to the Subject Property, or such portion thereof, sold, assigned or transferred to it. Any such purchaser, assignee or transferee shall observe and fully perform all of the duties and obligations of a Developer contained in this Agreement, as such duties and obligations pertain to the portion of the Subject Property sold, assigned or transferred to it. Provided however, notwithstanding anything to the contrary above, if any such sale, assignment or transfer relates to a completed building which has been approved by the City for occupancy, this Agreement shall automatically terminate. 151
Section 1.11. Amendment to Agreement (Developer and City). This Agreement may be amended by mutual consent of the parties in writing, in accordance with the provisions of Government Code section 65868, provided that: any amendment which relates to the term, permitted uses, density, intensity of use, shall require a noticed public hearing before the parties may execute an amendment. Unless otherwise provided by law, all other amendments may be approved without a noticed public hearing.
Any amendment entered into between the City and the Developer shall require the signature of each owner of any portion of the Subject Property to the extent the amendment modifies this Agreement as to that other owner's property.
Section 1.12. Amendment to Agreement (Landowner and City). This Agreement may also be amended, subject to the provisions of Government Code section 65868, between a Landowner who has acquired a portion of the Subject Property from Developer and City as to the. portions of the Subject Property then owned by Landowner.
Any amendment entered into between the City and a Landowner shall require the signature of each Landowner of any portion of the Subject Property or the Developer to the extent the amendment modifies the Agreement as to that Landowner's or the Developer's property.
Section 1.13. Releases. Developer, and any subsequent Landowner, may free itself fromfurther obligations relating to the sold, assigned, or transferred property, provided that the City Clerk receives a copy of the Assumption Agreement provided for in Section 1.9.
Section 1.14. Notices. Notices, demands, correspondence, and other communication to City and Developer shall be deemed given if dispatched by prepaid first-class mail to the principal offices of the parties as designated in Section 1.6. Notice to the City shall be to the attention of both the City Manager and the Director. Notices to subsequent Landowners shall be required to be given by the City only for those Landowners who have given the City written notice of their address for such notices. The parties hereto may, from time to time, advise the other of new addresses for such notices, demands or correspondence.
Section 1.15. Reimbursement for Agreement Expense of City. Developer agrees to reimburse City for reasonable and actual expenses over and above fees paid by Developer as an applicant for costs specifically incurred by City for the preparation of this Agreement, including recording fees, publishing fees, and reasonable staff, City Attorney, Special Counsel, and consultant costs not otherwise included within application fees then due and payable to the City.
Such reimbursement shall be paid to the City prior to execution of this Agreement by the City:
Section 1.16. Recordation of Agreement. The City Clerk shall cause a copy of this Agreement to be recorded with the Merced County Recorder not later than ten (10) days following execution of this Agreement by the City. Developer hereby covenants that during the period following execution and the recording of this Agreement by the City, Developer shall not, without prior written approval by the City Attorney, cause or allow to be recorded against the 152
Subject Property any instrument affecting the priority, validity or enforceability of this Agreement.
Section 1.17. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California.
Section 1.18. Invalidity of Agreement/Severability. If this Agreement in its entirety is determined by a court to be invalid or unenforceable, this Agreement shall automatically terminate as of the date of final entry of judgment. If any provision of this Agreement shall be determined by a court to be invalid and unenforceable, or if any provision of this Agreement is rendered invalid or unenforceable according to the terms of any federal or state statute, -which became effective after the Effective Date, the remaining provisions shall continue in full force and effect.
Section 1.19. Third Party Legal Challenge. In the event any legal action or special proceeding is commenced by any person or entity other than a party or a Landowner, challenging this Agreement, the Entitlements or any approval subsequently granted by the City for the development of the Subject Property, the parties and any Landowner agree to cooperate with each other in good faith. City may elect to tender the defense of any lawsuit filed by a third person or entity to Developer and/or Landowner(s) (to the extent the litigation, in part or in whole, seeks to overturn or invalidate this Agreement, the Entitlements or any subsequent approval granted for the Subject Property held by or granted to Developer and/or Landowner), and, in such event, Developer and/or such Landowner(s) shall hold the City harmless from and defend the City from all costs and expenses incurred in the defense of such lawsuit, including, but not limited to; damages, attorneys' fees and expenses of litigation awarded to the prevailing party or parties in such litigation. For purposes of this section only, "City" shall include all employees, consultants and agents acting on behalf of the City. Neither party shall settle any such lawsuit without the consent of the other party. The City may elect to participate in the litigation, in which case the Developer and/or Landowner agree to reimburse the City for its litigation costs and fees, including the retention of outside legal counsel. It is the intent of the Parties that the City's participation not result in unnecessary duplication of legal services, but rather that the City's active involvement in the litigation be limited to supervising the preparation of the administrative record or discovery as applicable, monitoring of litigation, and responsive pleadings regarding issues which, in the sole opinion of the City, involve broader City concerns then those immediately affecting the Landowner and/or Developer. Upon written demand of the City, Developer and/or Landowner shall deposit with the City such sums as may be specified by the City as its estimated litigation costs and fees for the following thirty day period. Both parties shall act in good faith, and shall not unreasonably withhold consent to settle. In the event that the City elects to settle a claim, and Developer refuses to also settle, City at its sole option may require Developer to post security in a form and amount reasonably acceptable to the City, for the performance of Developer's duties under this section. If the Developer, within thirty (30) days of receiving written notice from City, fails to post this security, the Developer shall settle the claim on terms as previously approved by the City.
Section 1.20. Fees. Developer shall be subject to all fees currently adopted by the City, including scheduled or periodic increases as provided for in the adopting ordinances or 153
resolutions ("Current Fees"). Developer shall pay, without protest or without challenge, Current Fees in effect at the time of the issuance of a requested permit or entitlement.
In addition, Developer agrees to pay any new fees adopted by the City, or the recalculation of existing fees ("New Fees") in effect at the time of the issuance of a requested building permit. Developer shall retain the right to challenge the New Fees as permitted by law.
Section 1.21. Reserved Powers. Notwithstanding any other provision of this Agreement, including Section 2.1, and without limitation as to any other requirements or exceptions contained in this Agreement, the City shall retain the authority to take the following actions and apply the same to the Subject Property:
(a) The authority of the City Council to adopt regulations to protect the City and its citizens from an immediate adverse risk to health and safety. This shall include, but not be limited to, lack of sufficient sewer and/or water facilities, but not school facilities. (b) Adopt or increase utility charges in accordance with applicable laws and regulations; and
( c) Adopt a Finance and Implementation Plan as specified in Section 2.1 setting forth an Implementation Plan to provide for the payment of all costs for the public facilities and services necessary to serve the development. (d) As set forth in Section 1.20, increase and apply Current Fees, and adopt an:d apply New Fees.
( e) Land use regulations, ordinances, policies, programs, resolutions or fees adopted or undertaken by City in order to comply with state or federal laws, or regulations, provided that in the event that such state or federal laws or regulations prevent or preclude compliance with one or more provisions of this Agreement, such provision or provisions shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations.
(f) City land use regulations, ordinances, policies, programs or resolutions adopted after the Effective Date, which are in conflict with the City Laws, but the application of which to the development of the Subject Property has been consented to in writing by the Developer and/or the applicable Landowner by later separate document, which consent Developer and/or Landowner may withhold in their sole and exclusive discretion.
(g) In the event that the LAFCO imposes conditions on annexation which is, in the sole discretion of the City Council, unacceptable, the City shall have no responsibility to complete annexation.
Section 1.22. Waiver of Claims. Except as may be permitted by Section 1.20, Developer waives, as to the Subject Property only, any and all existing claims that may have 154
against the City, its agents, employees and consultants ansmg out of the adoption and/or application of development requirements and standards, impact fees, the adoption of this Agreement or approval of the Entitlements and all of the proceedings, acts or determinations made prior thereto.
ARTICLE2
PROJECT DEVELOPMENT
Section 2.1. Limited Vested Right. During the term of and subject to the terms of this Agreement, the Developer's rights shall be vested only to density and intensity of use as set forth in the underlying zoning district.
(a) The City shall not approve any tentative subdivision maps, issue building permits, or grant any other development approvals or permits or entitlements unless the City approves the following:
(1) A Specific Plan for the entire Subject Property in accordance with Condition 1 of Exhibit "C", attached hereto and incorporated herein by this reference; and (2) A Finance and Implementation Plan, in accordance with Condition 2 of Exhibit "C", attached hereto and incorporated herein by this reference. (b) Upon approval of a Specific Plan and a Finance and Implementation Plan, the Developer shall be vested in the Specific Plan for the term of the Agreement.
Section 2.2. Permitted Uses and Development Standards. The permitted uses, the density and intensity of use for the Subject Property shall be those set forth for the pre-zoning district regulations as set forth in the City Zoning Ordinance in effect on the date of approval of this Agreement.
Section 2.3. Application, Processing and Inspection Fees. Application fees, processing fees, and inspection fees that are revised during the term of this Agreement shall apply to the development pursuant to this Agreement, provided that such revised fees apply generally to similar private projects or works within City and are in compliance with State and federal law.
Section 2.4. Obligation and Rights of Mortgage Lenders. The holder of any mortgage, deed of trust or other security instrument with respect to the Subject Property, or any portion thereof, shall not be obligated under this Agreement to construct or complete improvements or to guarantee such construction or completion, but, in the event said holder takes title to the Subject Property through foreclosure of a mortgage or a deed of trust, or deed-in-lieu of such foreclosure, said holder shall be bound by all of the terms and conditions of this Agreement which pertain to the Subject Property or such portion thereof in which it holds an interest. Any such holder who comes into possession of the Subject Property, or any portion thereof, pursuant to a foreclosure of a mortgage or a deed of trust, or deed in lieu of such foreclosure, shall take the Subject Property, or such portion thereof, subject to any pro rata claims for payments or charges against 155
the Subject Property, or such portion thereof, which accrue prior and subsequent to the time such holder comes into possession. Nothing in this Agreement shall be deemed or construed to permit or authorize any such holder to devote the Subject Property, or any portion thereof, to any uses, or to construct any improvements thereon, other than those uses and improvements provided for or authorized by this Agreement, subject to all of the terms and conditions of this Agreement.
ARTICLE3
DEFAULT
Section 3.1. General Provisions. Subject to extensions of time by mutual consent in writing, failure or delay by either party or Landowner not released from this Agreement to perform any term or provision of this Agreement, shall constitute a default. In the event of alleged default or breach of any terms or conditions of this Agreement, the party alleging such default or breach shall give the other party or Landowner not less than sixty (60) days notice in writing specifying the nature of the alleged default and the manner in which said default may be cured. During any such sixty (60) day period, the party or Landowner charged shall not be considered in default for purposes of termination or institution of legal proceedings.
After notice and expiration of the sixty (60) day period, if such default has not been cured or is not being diligently cured in the manner · set forth in the notice, the other party or Landowner to this Agreement may, at his option, institute legal proceedings pursuant to this Agreement or give notice of its intent to terminate this Agreement pursuant to California Government Code section 65868 and any regulations of the City implementing said Government Code section. Following notice of intent to terminate, or prior to instituting legal proceedings, the matter shall be scheduled for consideration and review in the manner set forth in Government Code sections 65865, 65867, and 65868 and City regulations implementing said sections by the City within thirty (30) calendar days.
Following consideration of the evidence presented in said review before the City and an additional 30-day period to cure, either party alleging the default by the other party or Landowner may institute legal proceedings or may give written notice of termination of this Agreement to the other party; provided, however, a Landowner may only give such notice with respect to such portion of the Subject Property in which Landowner owns an interest.
Section 3.2. Annual Review. City shall, at least every twelve (12) months during the term of this Agreement, review the extent of good faith substantial compliance by Developer and Landowner with the terms of this Agreement. Such periodic review by the Director, unless referred to the Planning Commission or City Council shall be limited in scope to compliance with the terms of this Agreement pursuant to California Government Code section 65865.1.
Each said review shall be completed within sixty (60) days of the first meeting of the Planning Commission and the City Council, respectively, at which such review is undertaken, unless said period is extended by mutual consent of City and Developer. Failure to complete said review within the prescribed period shall be deemed a finding of good faith substantial compliance.
Notice of such annual review shall include the statement that any review may result in amendment or termination of this Agreement. City may charge, and Developer shall pay a fee 156
for such annual review to defray the cost to the City to process and conduct such annual review.
City shall deposit in the mail or fax to Developer and/or Landowner a copy of all staff reports and, to the extent practical, related exhibits concerning contract performance at least seven (7) calendar days prior to such periodic review. The Developer or Landowner shall be entitled to appeal a determination of the Director to the Commission and then to the Council.
Any appeal must be filed within ten (10) days of the decision to the Director, or the Commission, as the case may be. Developer or Land owner shall be permitted an opportunity to be heard orally and/or in writing regarding its performance under this Agreement before the Commission, Council, and/or Director, as the case may be.
Section 3.3. Developer Default Limited to Property/Entity; Separate Obligations of Owners. Except as specified herein in Section 3.1, no default hereunder in performance of a covenant or obligation with respect to a particular portion of the Subject Property shall constitute a default applicable to any other portion of the Subject Property, and any remedy arising by reason of such default shall be applicable solely to the portion of Subject Property where the default has occurred. Similarly, the obligations of the Developer and Landowners shall be severable and no default hereunder in performance of a covenant or obligation by any one of them shall constitute a default applicable to any other owner who is not affiliated with such defaulting owner, and any remedy arising by reason of such default shall be solely applicable to the defaulting owner and the portion of the Subject Property owned thereby.
Section 3.4. Default by City. In the event City does not accept, review, approve or issue necessary development permits or entitlements for use in a timely fashion as defined by this Agreement, or as. otherwise provided in this Agreement, or the City otherwise defaults under the terms of this Agreement, Developer and/or Landowner may give written notice thereof to the City and if not cured within sixty (60) days following receipt of such notice, Developer shall have all rights and remedies provided herein or· under applicable law, including without limitation the right to pursue actions for mandamus, specific performance, or injunctive or declaratory relief to enforce this Agreement. Notwithstanding the foregoing sentence, the City, Developer and Landowner each waives any and all rights to seek monetary damages from any other party as a result of any breach or alleged breach of such other party's obligations hereunder.
In the event City is in default under the terms of this Agreement, any resulting delays in Developer's performance caused thereby shall not constitute grounds for termination or cancellation of this Agreement.
Section 3.5. Cumulative Remedies of Parties/Waiver of Right to Damages. In addition to any other rights or remedies, City, Developer and any Landowner may institute legal or equitable proceedings to cure, correct or remedy any default, to specifically enforce any covenant or agreement herein, to enjoin any threatened or attempted violation of the provisions of this Agreement. Notwithstanding the foregoing sentence, the City, Developer and Landowner each waives any and all rights to seek monetary damages from the other party as a result of any breach or alleged breach of such other party's obligations hereunder.
Section 3.6. Enforced Delay, Extension of Times of Performance. In addition to specific provisions of this Agreement, performance by either party or Landowner hereunder shall 157
not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, casualties, acts of God, State or federal laws, regulations, decisions or orders which conflict with this Agreement, or judicial or other governmental agency decisions or orders, directing the City, or which have the effect of requiring the City, to take actions or refrain from taking actions which conflict with the obligations under this Agreement. Any and all extensions of the time of performance shall be limited to thirty-six (36) months. This section 3.6 shall not apply to the twenty-four (24) month term within which this Agreement is required to take effect.
ARTICLE4
TERMINATION
Section 4.1. Termination Upon Completion of Development. This Agreement shall terminate upon the expiration of the term or when the Subject Property has been fully developed and all of the Developer's obligations in connection therewith are satisfied. Upon termination of this Agreement, the City shall record a notice of such termination in substantially the form attached hereto as Exhibit "D". This Agreement shall automatically terminate and be of no further force or effect as to any building, and the lot or parcel upon which such building is located, when it has been approved by the City for occupancy.
Section 4.2. Effect of Termination on. Developer Obligations. Termination of this Agreement as to the Developer of the Subject Property or any portion thereof shall not affect any of the Developer's obligations to comply with the City general plan and the terms and conditions of any applicable zoning, or subdivision map or other land use entitlements approved with respect to the Subject Property, any other covenants or any other development requirements specified in this Agreement to continue after the termination of this Agreement, or obligations to pay assessments, liens, fees, or taxes.
Section 4.3. Effect of Termination on City. Upon any termination of this Agreement, as provided for under the terms and conditions of this Agreement, as to the Developer of the Subject Property, or any portion thereof, the entitlements, conditions of development, limitations on fees and all· other terms and conditions of this Agreement shall no longer be vested hereby with respect to the Subject Property affected by such termination (provided vesting of entitlements, conditions or fees applicable to the Subject Property shall be governed by planning and zoning law) and the City shall no longer be limited, by this Agreement, to make any changes or modifications to such entitlements, conditions or fees applicable to such property.
ARTICLES
STANDARD TERMS AND CONDITIONS
Section 5.1. Venue. Venue for all legal proceedings shall be in the Superior Court for the County of Merced.
Section 5.2. Waiver. A waiver by any party of any breach of any term, covenant or 158
condition herein contained or a waiver of any right or remedy of such party available hereunder at law or in equity shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition herein contained or of any continued or subsequent right to the same right or remedy. No party shall be deemed to have made any such waiver unless it is in writing and signed by the party so waiving.
Section 5.3. Completeness of Instrument. This Agreement, together with its specific references and attachments, constitutes all of the agreements, understandings, representations, conditions, warranties and covenants made by and between the parties hereto. Unless set forth herein, neither party shall be liable for any representations made express or implied.
Section 5.4. Supersedes Prior Agreements. It is the intention of the parties hereto that this Agreement shall supersede any prior agreements, discussions, commitments, representations or agreements, written or oral, between the parties hereto.
Section 5.5. Captions. The captions of this Agreement are for convenience in reference only and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
Section 5.6. Number and Gender. In this Agreement, the neuter gender includes the feminine and masculine, and the singular includes the plural, the word "person" includes corporations, partnerships, firms or associations, wherever the context so requires.
Section 5.7. Mandatory and Permissive. "Shall" and "will" and "agrees" are mandatory. "May" is permissive.
Section 5.8. Term Includes Extensions. All references to the term of this Agreement or the Agreement Term shall include any extensions of such term.
Section 5.9. Successors and Assigns. All representations, covenants and warranties specifically set forth in this Agreement, by or on behalf of, or for the benefit of any or all of the parties hereto, shall be binding upon and inure to the benefit of such party, its successors and assigns.
Section 5.10. Modification. No modification or waiver of any prov1s1ons of this Agreement or its attachments shall be effective unless such waiver or modification is in writing, signed by all parties, and then shall be effective only for the period and on the condition, and for the specific instance for which given.
Section 5.11. Counterparts. This Agreement may be executed simultaneously and in several counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.
Section 5.12. Other Documents. The parties agree that they shall cooperate in good faith to accomplish the object of this Agreement and to that end, agree to execute and deliver such other and further instruments and documents as may be necessary and convenient to the 159
fulfillment of these purposes.
Section 5.13. Partial Invalidity. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provision and/or provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
Section 5.14. Controlling Law. The validity, interpretation and performance of this Agreement shall be controlled by and construed under the laws of the State of California.
Section 5.15. Time Is of the Essence. Time is of the essence of this Agreement and each covenant and term a condition herein.
Section 5.16. Authority. All parties to this Agreement warrant and represent that they have the power and authority to enter into this Agreement in the names, titles and capacities herein stated and on behalf of any entities, persons, estates or firms represented or purported to be represented by such entity(s), person(s), estate(s) or firm(s) and that all formal requirements necessary or required by any state and/or federal law in order to enter into this Agreement have been fully complied with. Further, by entering into this Agreement, neither party hereto shall have breached the terms or conditions of any other contract or agreement to which such party is obligated, which such breach would have a material effect hereon.
Section 5.17. Document Preparation. This Agreement will not be construed against the party preparing it, but will be construed as if prepared by all parties.
Section 5.18. Advice of Legal Counsel. Each party acknowledges that it has reviewed this agreement with its own legal counsel, and based up on the advice of that counsel, and freely entered into this Agreement.
Section 5.19. Estoppel Certificate. Within thirty (30) days following any written request which either party may make from time to time, and upon payment of a fee to the City to reimburse the City for its reasonable expenses associated herewith, the other party to this Agreement shall execute an4 deliver to the requesting party a statement certifying that:
(a) this Agreement is unmodified and in full force and effect, or if there have been modifications hereto, that this Agreement is in full force and effect as modified and stating the date and nature of such modifications; and
(b) there are not current uncured defaults under this Agreement or specifying the date, nature of any default and manner of cure.
This certificate may be executed by the City Manager, or his or her designee.
Section 5.20. Attorneys Fees and Costs. If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs, which may be set by the 160
Court in the same action or in a separate action brought for that purpose, in addition to any other relief to which such party may be entitled.
Section 5.21. Consent/Subordination. Unless waived in writing by the City Attorney, Developer shall furnish proof satisfactory to the City, prior to approval of the Agreement that all persons possessing a legal interest in the property have consented to the recording of this Agreement. Unless waived in writing by the City Attorney, the City shall require subordination by all lenders of record as a condition precedent to the City approval of the Agreement. The City shall have no duty to subordinate its interest in this Agreement.
IN WITNESS WHEREOF, this Agreement was executed by the parties thereto on the dates set forth below.
CITY OF LOS BANOS
A municipal corporation
By: _________ _
Manuel Thomas Faria ID, Mayor
ATTEST:
Lucille L. Mallonee, City Clerk
APPROVED AS TO FORM:
William A. Vaughn, City Attorney
:~ c--
Aiexis M. Gevorgian,
Managing Member
Dated ----------
Dated. _________ _
Dated ----------
Dated: 1 2.- 2. '2.... - 2- 0 2-I
SIGNATURES MUST BE NOTARIZED
161
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
)
County of Los ~'(\~e\e..s )
On 'Det-e-rn'o~, »., 20'J.\, before me, "3o..c...-o\) s~-P;)V\.~\ , a Notary Public, personally appeared I;\\'<.,~ ,s C:7 ~Vo:e9\o...n , who proved to me on the basis of satisfactory evidence to be the personW whose name(s:) (ware subscribed to the within instrument and acknowledged to me that ~she/they-- executed the same in ®her/their authorized capacity, and that by@be-r/theif-signature(s;ron the instrument the perso$), or the entity upon behalf of which the personkSY acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ~ ~ -
Z7 [SEAL]
162
EXHIBIT "A"
SUBJECT PROPERTY
ALL THAT REAL PROPERTY SITUATED IN AN UNINCORPORATED AREA, COUNTY OF MERCED, STATE OF CALIFORNIA, AND AS DESCRIBED AS FOLLOWS:
PARCEL ONE:
Lots 99, 100 and 101, according to the map entitled "Miller & Lux's Subdivision of the lands at Los Banos, Merced County, California" filed November 28, 1890 in Book 2 of Official Plats,