Agenda packet — Montclair City Council, September 19, 2022 (part 1 of 2)

CITY OF MONTCLAIR

CITY COUNCIL

SUCCESSOR REDEVELOPMENT AGENCY,

MONTCLAIR HOUSING CORPORATION, MONTCLAIR

HOUSING AUTHORITY, AND MONTCLAIR COMMUNITY

FOUNDATION MEETINGS
AGENDA
MONDAY, SEPTEMBER 19, 2022
7:00 p.m.

Location
Council Chamber
5111 Benito Street
Montclair, CA 91763
Webinar Link
https://zoom.us/j/93717150550
Dial #
1–669–900–6833
Meeting ID
937–1715–0550
Mayor
Javier “John” Dutrey
Mayor Pro Tem
Bill Ruh,
Council Members
Tenice Johnson
Corysa Martinez
Benjamin “Ben” Lopez
City Manager
Edward C. Starr
City Attorney
Diane E. Robbins
City Clerk
Andrea M. Myrick

REGULAR JOINT MEETING OF THE

CITY COUNCIL, SUCCESSOR AGENCY, MONTCLAIR HOUSING CORPORATION,

MONTCLAIR HOUSING AUTHORITY, AND MONTCLAIR COMMUNITY FOUNDATION to be held in the Council Chambers
5111 Benito Street, Montclair, California
Monday, September 19, 2022
7:00 p.m.

Remote Participation Information:

Zoom Link: https://zoom.us/j/93717150550
Dial Number: 1 (669) 900–6833
Meeting ID: 937–1715–0550
If you want to submit a public comment or speak on an agenda item, including public hearing and closed session items, please complete a Speaker Card in the Council Chambers or online at https://www.cityofmontclair.org/public-comment/. The Mayor/Chair (or the meeting’s Presiding Officer) will call on those who submitted requests to speak at the appropriate times during the meeting. Those who did not submit a request to speak who are present at the meeting location may raise their hand during Public Comment to request to speak. Those participating remotely may request speak using the “raise hand” function in Zoom or may dial *9 if on the phone, and then *6 to un–mute when called on to speak. Written comments (200–word limit per agenda item, and 200–word limit for all non–agenda items combined) and requests to speak can also be emailed to [email protected] at least one hour before the meeting begins.

Video recordings of Council meetings are available on the City's website at https://www.cityofmontclair.org/council-meetings/ and can be accessed by the end of the business day following the meeting.

AGENDA
I. CALL TO ORDER City Council [CC], Successor Agency Board [SA], Montclair Housing Corporation Board [MHC],
Montclair Housing Authority Commission [MHA],
Montclair Community Foundation Board [MCF]
II. INVOCATION
In keeping with our long–standing tradition of opening our Council meetings with an invocation, this meeting may include a nonsectarian invocation. Such invocations are not intended to proselytize or advance any faith or belief or to disparage any faith or belief. Neither the City nor the City Council endorses any particular religious belief or form of invocation.

III. PLEDGE OF ALLEGIANCE
IV. ROLL CALL
V. PRESENTATIONS
A. Presentation of Annual Donation by the Montclair Chamber of Commerce to the Montclair Community Foundation for the Montclair to College Program B. Training and Education Program by Southwest Regional Council of Carpenters VI. PUBLIC COMMENT
During Public Comment, you may comment on any subject that does not appear on this agenda. Each speaker has up to five minutes. The meeting’s presiding officer may provide more or less time to accommodate speakers with special needs or a large number of speakers waiting in line. (Government Code Section 54954.3).

If you did not submit a Speaker Card and would like to speak on an item on the Consent Calendar, please raise your hand during Public Comment to announce the agenda item you would like to provide comments on. The presiding officer will pull the item from the Consent Calendar and will then call on you to speak at the time of the item’s consideration.

Under the provisions of the Brown Act, the meeting bodies are prohibited from participating in substantial discussion of or taking action on items not listed on the agenda.

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MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 1 of 179 Page No.

VII. PUBLIC HEARINGS — None
VIII. CONSENT CALENDAR
A. Approval of Minutes

1. Regular Joint Meeting — August 15, 2022 [CC/SA/MHC/MHA/MCF] 169 B. Administrative Reports

1. Consider Receiving and Filing of Treasurer’s Report [CC] 5

2. Consider Approval of Warrant Register & Payroll Documentation [CC] 6

3. Consider Receiving and Filing of Treasurer’s Report [SA] 7

4. Consider Approval of Warrant Register [SA] 8

5. Consider Receiving and Filing of Treasurer’s Report [MHC] 9

6. Consider Approval of Warrant Register [MHC] 10

7. Consider Receiving and Filing of Treasurer’s Report [MHA] 11

8. Consider Approval of Warrant Register [MHA] 12

9. Consider Authorizing a $43,592.30 Allocation from the Economic Development Agency Fund for the Purchase of a 2022 Nissan Pathfinder from Metro Nissan Montclair for Use by the Economic Development Agency [CC]
Consider Authorizing a $33,894.80 Allocation from the Air Quality Improvement Fund for the Purchase of a 2022 Nissan Rogue From Metro Nissan Montclair for Use by the Administrative Services Department [CC] Consider Declaring a 2000 Toyota Camry CNG (Unit 102) as Surplus and Available for Parts or for Sale at Auction [CC] 13

10. Consider Receiving and Filing the 2022 Local Agency Biennial Notice and Directing Staff to Amend the City’s Conflict of Interest Code Pursuant to the Political Reform Act [CC] 15

11. Consider Authorizing the Destruction of Certain Obsolete Public Records Pursuant to the City of Montclair Records Retention Schedule [CC] 19 C. Agreements

1. Consider Approval of Agreement No. 22–81 with the Christian Development Center to Provide Case Management Services for the Homeless Program [CC]
Consider Authorizing a $19,800 Appropriation from the Contingency Reserve Fund for Costs Related to Agreement No. 22–81 [CC] 22

2. Consider Approval of Agreement No. 22–83 with CRP/VP Montclair Village Owner, LLC., an Operations and Management Regulatory Agreement Regarding the Property Located at 5040–5050 Arrow Highway, Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 40

3. Consider Approval of Agreement No. 22–93 with Records Control Services, Inc. for Records Management Consulting Services (Inventory Assessment, Updated Retention Policy, and Strategic Roadmap) [CC] 63 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 2 of 179 Page No.

4. Consider Approval of Agreement No. 22–94 with CRP/VP Montclair Village Owner, LLC., for Construction and Dedication of Parkland, Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 90

5. Consider Approval of Agreement No. 22–95 with University Enterprises Corporation at California State University San Bernardino to Provide Technical Assistance and Outreach Services to Small Businesses, Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 112

6. Consider Approval of Agreement No. 22–96 with the International Language School for Children & Adults (ILSCA) for Language Testing Services [CC] 120

7. Consider Approval of Agreement No. 22–97, Amendment No. 3 to Agreement No. 95–73, as Amended, with Diane E. Robbins of Robbins & Holdaway, a Professional Corporation, to Continue Providing Legal Services to the City of Montclair, Montclair Successor Redevelopment Agency, Montclair Housing Corporation, Montclair Housing Authority and Other City–Related Legal Entities [CC/SA/MHC/MHA/MCF] 127

8. Consider Approval of Agreement No. 22–100 with the San Bernardino County District Attorney’s Office to Station a Victim’s Advocate at the Police Department, Subject to Any Revisions Deemed Necessary by the City Attorney [CC] 135

9. Consider Approval of Agreement No. 22–103, Amending Agreement No. 19–103 with the City of West Covina and Mark 43 for CAD/RMS Updates and Services, Subject to Any Revisions Deemed Necessary by the City Attorney [CC]
Consider Authorizing a $10,000 Expenditure from the SB 509 Public Safety Fund for Costs Associated with Agreement No. 22–103 [CC] 146

10. Consider Amending the 2019–2024 Capital Improvement Program to Add the CDBG Target Area Alley Improvements Project [CC] Consider Authorizing an $849,440 Appropriation from Community Development Block Grant (CDBG) Funds for Costs Related to the CDBG Target Area Alley Improvements Project [CC]
Consider Authorization to Advertise for Bid Proposals for the CDBG Target Area Alley Improvements Project [CC]
Consider Authorizing the City Manager to Award Agreement No. 22–104 for Construction of the CDBG Target Area Alley Improvements Project [CC] 152 D. Resolutions

1. Consider Adoption of Resolution No. 22–3377 Making Factual Findings in Compliance with AB 361 for the Continuation of Public Meeting Teleconferencing During Public Health Emergencies for the Period of September 19, 2022, through October 19, 2022 [CC] 156

2. Consider Adoption of Resolution No. 22–3379 Approving a Five–Year Capital Project Needs Analysis for Fiscal Years 2023–24 Through 2027– 28 [CC] 160
IX. PULLED CONSENT CALENDAR ITEMS
MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 3 of 179 Page No.

X. COMMUNICATIONS
A. Department Reports — None
B. City Attorney

1. Request for City Council to Meet in Closed Session Pursuant to Government Code Section 54957.6 Regarding Conference with Designated Labor Negotiator Edward C. Starr [CC]
Agency: City of Montclair
Employee Management
Associations: Montclair City Confidential Employees Association Montclair General Employees Association
Montclair Fire Fighters Association
Montclair Police Officers Association

2. Request for City Council to Meet in Closed Session Pursuant to Government Code §54956.9(d)(1) Regarding Pending Litigation [CC]
George v. City of Montclair
C. City Manager/Executive Director
D. Mayor/Chairperson

1. Announcement of a Community Stakeholder Meeting of the City Council, Planning Commission, and Community Activities Commission on Monday, September 26, 2022, at 6:00 p.m. in the Senior Center Hosted by KTUA to Discuss the Parks and Recreation Master Plan
E. Council Members/Directors
F. Committee Meeting Minutes (for informational purposes only)

1. Public Works Committee Meeting — May 19, 2022 [CC] 163

2. Personnel Committee Meeting — August 15, 2022 [CC] 168 XI. CLOSED SESSION
XII. CLOSED SESSION ANNOUNCEMENTS
XIII. ADJOURNMENT
The next regular joint meeting of the City Council, Successor Agency Board, Montclair Housing Corporation Board, Montclair Housing Authority Commission, and Montclair Community Foundation Board will be held on Monday, October 3, 2022, at 7:00 p.m.

Reports, backup materials, and additional materials related to any item on this Agenda distributed to the meeting bodies after publication of the Agenda packet are available for public inspection in in the Office of the City Clerk between 7:00 a.m. and 6:00 p.m., Monday through Thursday. Please call the City Clerk’s Office at (909) 625–9416 or send an e–mail to [email protected] to request documents via e–mail.

If you need special assistance to participate in this meeting, please contact the City Clerk’s Office at (909) 625–9416 or e–mail [email protected]. Notification prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. (28 CFR 35.102–35.104 ADA Title II)
I, Andrea M. Myrick, City Clerk, hereby certify that I posted, or caused to be posted, a copy of this Agenda not less than 72 hours prior to this meeting on the City’s website at https://www.cityofmontclair.org/agendas/ and on the bulletin board adjacent to the north door of Montclair City Hall at 5111 Benito Street, Montclair, CA 91763 on Thursday, September 15, 2022.

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MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 4 of 179

CITY COUNCIL

AGENDA REPORT
DATE: SEPTEMBER 19, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 1
FILE I.D.: FIN520
DEPT.: FINANCE
PREPARER: J. KULBECK
SUBJECT: CONSIDER RECEIVING AND FILING OF TREASURER'S REPORT REASON FOR CONSIDERATION: The City Council is requested to consider receiving and filing the City of Montclair Treasurer's Report for the month ending August 31, 2022.

BACKGROUND: Included in the City Council’s agenda packet is a copy of the Treasurer's Report for the period ending August 31, 2022.

FISCAL IMPACT: Routine—report of City's cash and investments.

RECOMMENDATION: Staff recommends the City Council receive and file the Treasurer's Report for the month ending August 31, 2022.

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CITY COUNCIL

AGENDA REPORT
DATE: SEPTEMBER 19, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 2
FILE I.D.: FIN540
DEPT.: FINANCE
PREPARER: L. LEW/V. FLORES
SUBJECT: CONSIDER APPROVAL OF WARRANT REGISTER AND PAYROLL DOCUMENTATION REASON FOR CONSIDERATION: The City Council is requested to consider approval of the Warrant Register and Payroll Documentation.

BACKGROUND: Mayor Pro Tem Ruh has examined the Warrant Register dated September 6, 2022; the Warrant Register dated September 19, 2022; and the Payroll Documentations dated July 31, 2022, and August 14, 2022, and recommends their approval.

FISCAL IMPACT: The Warrant Register dated September 6, 2022, totals $2,594,308.17.

The Warrant Register dated September 19, 2022, totals $876,531.79.

The Payroll Documentation dated July 31, 2022 totals $693,157.80 gross, with $496,350.56 net being the total cash disbursement.

The Payroll Documentation dated August 14, 2022 totals $720,818.31 gross, with $504,971.85 net being the total cash disbursement.

RECOMMENDATION: Staff recommends the City Council approve the above–referenced Warrant Register and Payroll Documentation.

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CITY COUNCIL

AGENDA REPORT
DATE: SEPTEMBER 19, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 3
FILE I.D.: FIN510
DEPT.: SA
PREPARER: C. RAMIREZ
SUBJECT: CONSIDER RECEIVING AND FILING OF TREASURER'S REPORT REASON FOR CONSIDERATION: The City Council acting as Successor to the Redevelopment Agency Board of Directors (Successor Agency Board) is requested to consider receiving and filing the Successor to the Redevelopment Agency Treasurer's Report for the month ending August 31, 2022, pursuant to state law.

BACKGROUND: Included in the Successor Agency Board’s agenda packet is a copy of the Successor to the Redevelopment Agency Treasurer's Report for the period ending August 31, 2022.

FISCAL IMPACT: Routine—report of the Successor Agency's cash.

RECOMMENDATION: Staff recommends the Successor Agency Board receive and file the Successor to the Redevelopment Agency Treasurer's Report for the month ending August 31, 2022.

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CITY COUNCIL

AGENDA REPORT
DATE: SEPTEMBER 19, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 4
FILE I.D.: FIN530
DEPT.: SA
PREPARER: C. RAMIREZ
SUBJECT: CONSIDER APPROVAL OF WARRANT REGISTER
REASON FOR CONSIDERATION: The City Council acting as Successor to the Redevelopment Agency Board of Directors is requested to consider receiving and filing the Successor to the Redevelopment Agency Warrant Register for the month ending August 31, 2022, pursuant to state law.

BACKGROUND: Vice Chair Ruh has examined the Successor to the Redevelopment Agency Warrant Register dated 08.01.22–08.31.22 in the amounts of $7,167.14 for the Combined Operating Fund and $0.00 for the Redevelopment Obligation Retirement Funds, and finds it to be in order.

FISCAL IMPACT: Routine—report of Agency's obligations.

RECOMMENDATION: Vice Chair Ruh recommends the City Council as Successor to the Redevelopment Agency Board of Directors approve the Successor to the Redevelopment Agency Warrant Register for the period ending August 31, 2022.

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CITY COUNCIL

AGENDA REPORT
DATE: SEPTEMBER 19, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 5
FILE I.D.: FIN525
DEPT.: MHC
PREPARER: C. RAMIREZ
SUBJECT: CONSIDER RECEIVING AND FILING OF TREASURER'S REPORT REASON FOR CONSIDERATION: The Montclair Housing Corporation Board of Directors is requested to receive and file the Montclair Housing Corporation Treasurer's Report for the month ending August 31, 2022, pursuant to state law.

BACKGROUND: Included in the Montclair Housing Corporation Board agenda packet is a copy of the Treasurer's Report for the period ending August 31, 2022.

FISCAL IMPACT: Routine—report of the Montclair Housing Corporation's cash and investments.

RECOMMENDATION: Staff recommends the Montclair Housing Corporation Board of Directors receive and file the Treasurer's Report for the month ending August 31, 2022.

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CITY COUNCIL

AGENDA REPORT
DATE: SEPTEMBER 19, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 6
FILE I.D.: FIN545
DEPT.: MHC
PREPARER: C. RAMIREZ
SUBJECT: CONSIDER APPROVAL OF WARRANT REGISTER
REASON FOR CONSIDERATION: The Montclair Housing Corporation Board of Directors is requested to consider receiving and filing the Warrant Register for the month ending August 31, 2022, pursuant to state law.

BACKGROUND: Vice Chair Ruh has examined the Warrant Register dated 08.01.22–

08.31.22 in the amount of $82,137.70 for the Montclair Housing Corporation and finds it to be in order.

FISCAL IMPACT: Routine—report of Montclair Housing Corporation's obligations.

RECOMMENDATION: Vice Chair Ruh recommends the Montclair Housing Corporation Board of Directors approve the Warrant Register for the period ending August 31, 2022.

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CITY COUNCIL

AGENDA REPORT
DATE: SEPTEMBER 19, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 7
FILE I.D.: FIN525
DEPT.: MHA
PREPARER: C. RAMIREZ
SUBJECT: CONSIDER RECEIVING AND FILING OF TREASURER'S REPORT REASON FOR CONSIDERATION: The Montclair Housing Authority Commission is requested to receive and file the Montclair Housing Authority Treasurer's Report for the month ending August 31, 2022, pursuant to state law.

BACKGROUND: Included in the Montclair Housing Authority Commission’s agenda packet is a copy of the Treasurer's Report for the period ending August 31, 2022.

FISCAL IMPACT: Routine—report of Montclair Housing Authority's obligations.

RECOMMENDATION: Staff recommends the Montclair Housing Authority Commission receive and file the Treasurer's Report for the month ending August 31, 2022.

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CITY COUNCIL

AGENDA REPORT
DATE: SEPTEMBER 19, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 8
FILE I.D.: FIN545
DEPT.: MHA
PREPARER: C. RAMIREZ
SUBJECT: CONSIDER APPROVAL OF WARRANT REGISTER
REASON FOR CONSIDERATION: The Montclair Housing Authority Commission is requested to consider receiving and filing the Warrant Register for the month ending August 31, 2022, pursuant to state law.

BACKGROUND: Vice Chair Ruh has examined the Warrant Register dated 08.01.22–

08.31.22 in the amount of $0.00 for the Montclair Housing Authority and finds it to be in order.

FISCAL IMPACT: Routine—report of Montclair Housing Authority's obligations.

RECOMMENDATION: Vice Chair Ruh recommends the Montclair Housing Authority Commission approve the Warrant Register for the period ending August 31, 2022.

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CITY COUNCIL

AGENDA REPORT
DATE: SEPTEMBER 19, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 9
FILE I.D.: VEH120/VEH450
DEPT.: ECONOMIC DEV./ADMIN. SVCS.

PREPARER: M. FUENTES
SUBJECT: CONSIDER AUTHORIZING A $43,592.30 ALLOCATION FROM THE ECONOMIC DEVELOPMENT AGENCY FUND FOR THE PURCHASE OF A 2022 NISSAN PATHFINDER

FROM METRO NISSAN MONTCLAIR FOR USE BY THE ECONOMIC DEVELOPMENT AGENCY
CONSIDER AUTHORIZING A $33,894.80 ALLOCATION FROM THE AIR QUALITY IMPROVEMENT FUND FOR THE PURCHASE OF A 2022 NISSAN ROGUE FROM METRO

NISSAN MONTCLAIR FOR USE BY THE ADMINISTRATIVE SERVICES DEPARTMENT CONSIDER DECLARING A 2000 TOYOTA CAMRY CNG (UNIT 102) AS SURPLUS AND

AVAILABLE FOR PARTS OR FOR SALE AT AUCTION
REASON FOR CONSIDERATION: The City Council is requested to consider authorizing the purchase of one 2022 Nissan Pathfinder for use by the Economic Development Agency and one 2022 Nissan Rogue for use by the Administrative Services Department, both from Metro Nissan Montclair, and to consider declaring a 2000 Toyota Camry CNG as surplus and available for parts or for sale at auction.

BACKGROUND: REASON FOR CONSIDERATION: Staff is requesting approval to purchase two vehicles for use by the Economic Development Agency and Administrative Services Department. In accordance with City policy staff obtained three quotes from different dealerships as noted below.

The lowest quote obtained for the 2022 Nissan Pathfinder was from Metro Nissan of Montclair, which is the recommended vendor for this purchase.

Bid Quotations for 2022 Nissan Pathfinder
Vendor Quote
Redlands Metro Nissan $51,000.00
Empire Nissan Ontario $50,000.00
Metro Nissan Montclair $43,592.30
The lowest quote obtained for the 2022 Nissan Rogue was from Metro Nissan of Montclair, which is the recommended vendor for this purchase.

Bid Quotations for 2022 Nissan Rogue
Vendor Quote
Nissan Puente Hills $37,000.00
Empire Nissan Ontario $38,815.00
Metro Nissan Montclair $33,894.80
MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 13 of 179 In addition, staff is recommending that the 2000 Toyota Camry CNG (Unit 102, VIN JT2BN22KXY0001052), originally purchased for the Montclair Housing Corporation and currently in use by the Economic Development Agency, be declared as surplus and available for parts or for sale at auction due to the age of the vehicle and mechanical issues stemming from the vehicle being one of the first CNG vehicles on the market.

FISCAL IMPACT: If authorized by the City Council, funding for the purchase of one 2022 Nissan Pathfinder would result in an expenditure of $43,592.30 payable from the Economic Development Agency Fund, and funding for the purchase of one 2022 Nissan Rogue would result in an expenditure of $33,894.80 payable from the Air Quality Improvement Fund.

RECOMMENDATION: Staff recommends the City Council take the following actions:

1. Authorize a $43,592.30 allocation from the Economic Development Fund for the purchase of a 2022 Nissan Pathfinder from Metro Nissan Montclair for use by the Economic Development Agency.

2. Authorize a $33,894.80 allocation from the Air Quality Improvement Fund for the purchase of a 2022 Nissan Rogue from Metro Nissan Montclair for use by the Administrative Services Department.

3. Declare a 2000 Toyota Camry CNG as surplus and available for parts or for sale at auction.

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CITY COUNCIL

AGENDA REPORT
DATE: SEPTEMBER 19, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 10
FILE I.D.: FPP150
DEPT.: ADMIN. SVCS.

PREPARER: A. MYRICK
SUBJECT: CONSIDER RECEIVING AND FILING THE 2022 LOCAL AGENCY BIENNIAL NOTICE AND DIRECTING STAFF TO AMEND THE CITY’S CONFLICT OF INTEREST CODE PURSUANT

TO THE POLITICAL REFORM ACT
REASON FOR CONSIDERATION: The City Council is the designated code–reviewing body for the City’s Conflict of Interest Code. It is necessary to review the Conflict of Interest Code on a biennial basis, which includes the filing of a Local Agency Biennial Notice and amending the Code to update the list of designated employees who are required to file Statements of Economic Interests and to incorporate any other necessary changes.

The 2022 Local Agency Biennial Notice is attached and hereby submitted to the City Council for filing.

BACKGROUND: Pursuant to the Political Reform Act of 1974 (Government Code §8100, et seq.), all public agencies are required to adopt a Conflict of Interest Code. A Conflict of Interest Code designates positions required to annually file Statements of Economic Interest (Fair Political Practices Commission [FPPC] Form 700), and assigns disclosure categories specifying the types of interests to be reported. The Form 700 is a public document intended to alert public officials and members of the public to the types of financial interests that may create conflicts of interest.

The City of Montclair Conflict of Interest Code, first adopted on October 4, 1976, contains the requirement that all City Council Members, Planning Commissioners, City Manager, City Attorney, and designated employees responsible for managing public investments annually file Statements of Economic Interests. In addition, the Code requires that there be a listing of designated employees who, by job title, "make or participate in the making of governmental decisions which may have a foreseeable material effect on financial interests."
At its meeting on June 20, 2022, the City Council adopted Resolution No. 22–3358 directing staff to perform a review of the City’s Conflict of Interest Code and submit the 2022 Local Agency Biennial Notice to the City Council.

Staff has reviewed the Conflict of Interest Code and has completed the Biennial Notice, which notes that areas of the Code require amendments. The 2022 Local Agency Biennial Notice must be filed by October 1, 2022, affirming that this review has been completed and indicating the actions required to be taken.

The City Council is required to adopt amendments to the Conflict of Interest Code within 90 days of the filing of the Biennial Notice. Staff anticipates the amendments to the Conflict of Interest Code will be submitted for adoption on or before the City Council’s first regular meeting in December to meet the 90–day deadline.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 15 of 179 FISCAL IMPACT: There would be no fiscal impact associated with the City Council’s actions of receiving and filing of the Biennial Notice and directing staff to amend the City’s Conflict of Interest Code.

RECOMMENDATION: Staff recommends the City Council receive and file the 2022 Local Agency Biennial Notice and direct staff to amend the City’s Conflict of Interest Code pursuant to the Political Reform Act.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 16 of 179 www.fppc.ca.gov
FPPC Advice: [email protected] (866.275.3772)

Page 1 of 1 ends

2022 Local Agency Biennial Notice
Name of Agency:

Mailing Address:

Contact Person: Phone No.

Email: Alternate Email:

Accurate disclosure is essential to monitor whether officials have conflicts of interest and to help ensure public trust in government. The biennial review examines current programs to ensure that the agency’s code includes disclosure by those agency officials who make or participate in making governmental decisions.

This agency has reviewed its conflict of interest code and has determined that (check one BOX):
 An amendment is required. The following amendments are necessary:
(Check all that apply.)
 Include new positions
 Revise disclosure categories
 Revise the titles of existing positions
 Delete titles of positions that have been abolished and/or positions that no longer make or participate in making governmental decisions
 Other (describe)
 The code is currently under review by the code reviewing body.  No amendment is required. (If your code is over five years old, amendments may be necessary.)
Verification (to be completed if no amendment is required) This agency’s code accurately designates all positions that make or participate in the making of governmental decisions. The disclosure assigned to those positions accurately requires that all investments, business positions, interests in real property, and sources of income that may foreseeably be affected materially by the decisions made by those holding designated positions are reported. The code includes all other provisions required by Government Code Section 87302.
__________________________________________ _________________________ Signature of Chief Executive Officer Date
All agencies must complete and return this notice regardless of how recently your code was approved or amended. Please return this notice no later than October 3, 2022, or by the date specified by your agency, if earlier, to:
(PLACE RETURN ADDRESS OF CODE REVIEWING BODY HERE)
PLEASE DO NOT RETURN THIS FORM TO THE FPPC.

City of Montclair
5111 Benito Street, Montclair, CA 91763
Andrea Myrick (909) 625-9416
[email protected] [email protected] ✔
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MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 17 of 179 [email protected] 1.866.275.3772 or 916.322.5660
www.fppc.ca.gov FPPC • 076-04.2022 • Page 1 of 1

FAIR POLITICAL PRACTICES COMMISSION
2022 Conflict of Interest Code
Biennial Notice Instructions for Local Agencies
The Political Reform Act requires every local government agency to review its conflict of interest code biennially. A conflict of interest code tells public officials, governmental employees, and consultants what financial interests they must disclose on their Statement of Economic Interests (Form 700).

By July 1, 2022: The code reviewing body must notify agencies and special districts within its jurisdiction to review their conflict of interest codes.

By October 3, 2022: The biennial notice must be filed with the agency’s code reviewing body.

The FPPC has prepared a 2022 Local Agency Biennial Notice form for local agencies to complete or send to agencies within its jurisdiction to complete before submitting to the code reviewing body. The City Council is the code reviewing body for city agencies. The County Board of Supervisors is the code reviewing body for county agencies and any other local government agency whose jurisdiction is determined to be solely within the county (e.g., school districts, including certain charter schools). The FPPC is the code reviewing body for any agency with jurisdiction in more than one county and will contact them.

The Local Agency Biennial Notice is not forwarded to the FPPC.

If amendments to an agency’s conflict of interest code are necessary, the amended code must be forwarded to the code reviewing body for approval within 90 days. An agency’s amended code is not effective until it has been approved by the code reviewing body.

If you answer yes, to any of the questions below, your agency’s code probably needs to be amended.
• Is the current code more than five years old?
• Have there been any substantial changes to the agency’s organizational structure since the last code was approved?
• Have any positions been eliminated or re-named since the last code was approved? • Have any new positions been added since the last code was approved? • Have there been any substantial changes in duties or responsibilities for any positions since the last code was approved?
If you have any questions or are still not sure if you should amend your agency’s conflict of interest code, please contact the FPPC. Additional information including an online webinar regarding how to amend a conflict of interest code is available on FPPC’s website.

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CITY COUNCIL

AGENDA REPORT
DATE: SEPTEMBER 19, 2022
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 11
FILE I.D.: CCK280
DEPT.: CITY MGR./CITY CLERK
PREPARER: A. MYRICK
SUBJECT: CONSIDER AUTHORIZING THE DESTRUCTION OF CERTAIN OBSOLETE PUBLIC

RECORDS PURSUANT TO THE CITY OF MONTCLAIR RECORDS RETENTION SCHEDULE REASON FOR CONSIDERATION: The City Council is requested to authorize the destruction of certain obsolete public records pursuant to the City of Montclair Records Retention Schedule.

The subject records requested for destruction are listed on the attached City of Montclair Destruction of Public Records Forms. The current lists consist of records from the Administrative Services and Human Services Departments.

BACKGROUND: On November 19, 2012, the City Council adopted Resolution No. 12– 2973 establishing the Montclair Records Retention Schedule as the City of Montclair’s Official Records Management Program, and providing ongoing authority for the destruction of obsolete public records in accordance with the Records Retention Schedule by the City Clerk, with review and consent by the City Attorney. This allowed the City to free up office space used solely for the storage of boxes of records, and to reduce the costs of off–site records storage for hundreds of boxes of obsolete documents. While the practice of administratively destroying obsolete records was successful in reducing storage costs and has been used by many cities over the past decade, recent legal attention to the practice have resulted in a return to using the City Council approval process for the destruction of obsolete records in accordance with the Records Retention Schedule on a periodic basis.

FISCAL IMPACT: There would be no fiscal impact directly related to authorizing the destruction of the subject records. The Administrative Services and Human Services Departments maintain these records within their offices, and will be using staff time and the City’s monthly on–site shred service to destroy the records once approved.

RECOMMENDATION: Staff recommends the City Council authorize the destruction of certain obsolete public records pursuant to the Records Retention Schedule.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 19 of 179

CITY OF MONTCLAIR

DESTRUCTION OF PUBLIC RECORDS FORM
Please refer to the City of Montclair Records Retention Schedule for record retention guidelines for each department.

The retention period has expired for the records listed below pursuant to the City of Montclair’s Records Retention Schedule.

Department:

Administrative Services – Personnel/Risk
Management (on-site records)

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Record type &
Retention Period Description of Records Period covered
Additional
Notes
Recruitments
(CL+4)
Recruitment Files (eligibility lists
decertified on or before 6/30/18)
FY 2016-17
to 2017-18
unsuccessful
applicant files
Litigation (CL+5) Aubrecht v. Montclair litigation file 6/87-10/90 closed 10/08/1990
Approval for destruction of listed records:

Dept. Records Manager: Date:

Department Head: Date:

City Clerk: Date:

City Attorney: Date:

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CITY COUNCIL

AGENDA REPORT
DATE: SEPTEMBER 19, 2022
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 1
FILE I.D.: HSV046/GRT085
DEPT.: COMMUNITY DEV.

PREPARER: A.COLUNGA/G. FONDARIO
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 22–81 WITH THE CHRISTIAN

DEVELOPMENT CENTER TO PROVIDE CASE MANAGEMENT SERVICES FOR THE

HOMELESS PROGRAM
CONSIDER AUTHORIZING A $19,800 APPROPRIATION FROM THE CONTINGENCY RESERVE FUND FOR COSTS RELATED TO AGREEMENT NO. 22–81
REASON FOR CONSIDERATION: The City Council is requested to consider approval of Agreement No. 22–81 with the Christian Development Center for case management services for the Homeless Program and authorization of a $19,800 appropriation from the Contingency Reserve Fund for costs related to Agreement No. 22–81.

BACKGROUND: The Special Operations Unit (SOU) of the Montclair Code Enforcement Division has primary responsibility in working with homeless individuals within the City.

SOU seeks to implement its comprehensive approach to address homelessness by working with individuals to offer a variety of options, resources, and enforcement actions tailored as much as possible to their situations. As part of their daily efforts, SOU relies on assistance from other partner groups or organizations that have the same goal of helping to end homelessness, such as the Christian Development Center. Agreement No. 22–81 would formalize the relationship the City has had with the Christian Development Center and enable their continued assistance in the City’s implementation of the Homeless Program.

The Christian Development Center is a non–profit organization led by Pastors Don and Ethel Rucker who, since January 2020, have served as key partners in providing needed case management for individuals referred to them by SOU. The Christian Development Center has demonstrated their commitment in assisting the City with the implementation of the Homeless Program in an empathetic and effective process through the services they provide. The Christian Development Center is available 24 hours a day, seven days a week, and provides a wide range of services. Examples of services provided by the Christian Development Center include the following: on–site interventions, counseling services, navigation of appropriate resources, rental assistance, transportation services, establishing and maintaining rapport with collaborating agencies and organizations, providing food, clothing, and hygiene items to needy individuals and families, as well as responding to calls for service and/or crisis situations as needed by the SOU.

The estimated cost for case management services for a nine–month term is $45,000 ($5,000 per month) to be paid primarily with the funds made available through the City’s award of funds through the Homeless Housing Assistance & Prevention, Round 2 (HHAP– 2) grant. The remaining amount not paid by the HHAP–2 grant would be paid by the City’s Contingency Reserve Fund.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 22 of 179 FISCAL IMPACT: If the City Council approves Agreement No. 22–81, $5,000 would be paid monthly for nine months to the Christian Development Center for case management services. Further, $28,000 would be funded through the HHAP–2 grant funding and $19,800 being would be paid through the Contingency Reserve Fund. The term of Agreement No. 22–81 is October 1, 2022 through June 30, 2023.

RECOMMENDATION: Staff recommends the City Council take the following actions:

1. Approve Agreement No. 22–81 with the Christian Development Center to provide case management services for the Homeless Program.

2. Authorize a $19,800 appropriation from the Contingency Reserve Fund for costs related to Agreement No. 22–81.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 23 of 179 Agreement No. 22-81

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CITY OF MONTCLAIR

AGREEMENT FOR CONSULTANT SERVICES
HOMELESS PROGRAM – CASE MANAGEMENT SERVICES
THIS AGREEMENT is made and effective as of October 1, 2022 between the City of Montclair, a municipal corporation (“City”) and Christian Development Center, a 501(c)(3) non-profit organization (“Consultant”).

WHEREAS, the City and the County of San Bernardino Office of Homeless Services (OHS), hereinafter referred to as "County," have entered into an Agreement which authorizes the City to provide certain services, said City Agreement being No. 22- 90 signed August 15, 2022; and
WHEREAS, the aforesaid Agreement provides that the City may subcontract for certain professional services subject to prior County approval; and WHEREAS, the City desires to engage the Consultant to provide professional services as detailed elsewhere in this Agreement; and
WHEREAS, the Consultant desires to perform and provide such services and hereby agrees to comply with all applicable requirements provided in the City’s Agreement No. 22-90 with the County, CONTRACTOR RESPONSIBILITIES and GENERAL CONTRACT REQUIREMENTS sections.

NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, the City and the Consultant agree as follows:

1. TERM
This Agreement shall commence on October 1, 2022 and shall remain and continue in effect for a period of nine months until tasks described herein are completed, but in no event later than June 30, 2023 unless sooner terminated pursuant to the provisions of this Agreement.

2. SERVICES
Consultant shall perform the tasks described and set forth in Exhibit A, attached hereto and incorporated herein as though set forth in full. Consultant shall complete the tasks according to the schedule of performance which is also set forth in Exhibit A.

3. PERFORMANCE
Consultant shall at all times faithfully, competently and to the best of his/her ability, experience and talent, perform all tasks described herein. Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 24 of 179 Agreement No. 22-81

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providing similar services as are required of Consultant hereunder in meeting its obligations under this Agreement.

4. CITY MANAGEMENT
City’s Community Development Director shall represent City in all matters pertaining to the administration of this Agreement, review and approval of all products submitted by Consultant, but not including the authority to enlarge the Tasks to be Performed or change the compensation due to Consultant. City’s Community Development Director shall be authorized to act on City’s behalf and to execute all necessary documents which enlarge the Tasks to be Performed or change Consultant’s compensation, subject to Section 5 hereof.

5. PAYMENT
(a) The City agrees to pay Consultant monthly, in accordance with the payment rates and terms and the schedule of payment as set forth in Exhibit B, attached hereto and incorporated herein by this reference as though set forth in full. This amount is subject to receipt of grant funding and shall not exceed $45,000 for the total term of the Agreement unless additional payment is approved as provided in this Agreement. (b) Consultant shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the City Manager. Consultant shall be compensated for any additional services in the amounts and in the manner as agreed to by City Manager and Consultant at the time City’s written authorization is given to Consultant for the performance of said services.

The City Manager may approve additional work not to exceed ten percent (10%) of the amount of the Agreement. Any additional work in excess of this amount shall be approved by the City Council.
(c) Consultant agrees that, in no event shall City be required to pay to Consultant any sum in excess of ninety-five percent (95%) of the maximum payable hereunder prior to receipt by City of all final documents, together with all supplemental technical documents, as described herein acceptable in form and content to City. Final payments shall be made no later than sixty (60) days after presentation of final documents and acceptance thereof by City.

If the City suspends or terminates a portion of this Agreement, such suspension or termination shall not make void or invalidate the remainder of this Agreement.

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(b) In the event this Agreement is terminated pursuant to this Section, the City shall pay to Consultant on a pro-rata basis the actual value of the work performed up to the time of termination, provided that the work performed is of value to the City.

7. DEFAULT OF CONSULTANT
(a) The Consultant’s failure to comply with the provisions of this Agreement shall constitute a default. In the event that Consultant is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any work performed after the date of default and can terminate this Agreement immediately by written notice to the Consultant. If such failure by the Consultant to make progress in the performance of work hereunder arises out of causes beyond the Consultant’s control, and without fault or negligence of the Consultant, it shall not be considered a default.
(b) If the City Manager or his/her delegate determines that the Consultant is in default in the performance of any of the terms or conditions of this Agreement, he/she shall cause to be served upon the Consultant a written notice of the default. The Consultant shall have ten (10) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event that the Consultant fails to cure its default within such period of time, the City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.

8. OWNERSHIP OF DOCUMENTS
(a) Consultant shall maintain complete and accurate records with respect to billed time, sales, costs, expenses, receipts and other such information required by City that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to the representatives of City or its designees at reasonable times to such books and records; shall give City the right to examine and audit said books and records; shall permit City to make transcripts therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. (b) Upon completion of, or in the event of termination or suspension of this Agreement, all original documents, claims, applications, computer files, notes, and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the City and may be used, reused, or otherwise disposed of by the City without the permission of the Consultant. With respect to computer files, Consultant shall make available to the City, at the Consultant’s office and upon reasonable written request by the City, the necessary computer software and hardware for purposes of accessing, compiling, transferring and printing computer files.

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9. INDEMNIFICATION
(a) Defense, Indemnity and Hold Harmless. Consultant shall defend, indemnify, and hold harmless the City, its present and former officers, directors, employees, agents, staff, volunteers, mayor, council, boards, committees, and representatives, as broadly interpreted (collectively, the “Indemnified Parties”), of and from all claims, suits, demands, obligations, losses, damages, sums, or any other matters threatened or presently asserted, including but not limited to all legal fees, costs of defense and litigation expenses (including legal fees, expert fees and any other costs or fees, including those of adverse parties imposed on or sought against the Indemnified Parties), arising directly or indirectly out of any liability or claim of loss or liability for personal injury, bodily injury to persons, contractual liability, errors or omissions, breach, failure to perform, damage to or loss of property, or any other loss, damage, injury or other claim of any kind or nature arising out of the work to be performed by Consultant herein, caused by or arising out of the negligent acts or omissions, or intentional misconduct of Consultant, including its subcontractors, employees, agents, and other persons or entities performing work for Consultant.
(b) Contractual Indemnity. To the fullest extent permitted under California law, Consultant shall contractually indemnify, defend and hold harmless the Indemnified Parties from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses, amounts for good faith settlement, or costs of any kind, whether actual, alleged or threatened, including attorney’s fees and costs, court costs, interest, defense costs, and expert witness fees and costs), arising out of or related to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to Consultant’s officers, agents, representative, employees, independent Consultants, subconsultants/subcontractors or affiliated or related entities and/or its or their employees, agents and representatives, caused by or arising out of all negligent acts or omissions, or intentional misconduct of Consultant, including its subconsultants/subcontractors, employees, agents and other persons or entities performing work for Consultant. Indemnification shall include any claim that Consultant, or Consultant’s employees or agents, are or may be considered and treated as employees of the City or are entitled to any employee benefits from City including but not limited to those available under Public Employees Retirement Law. The obligation to indemnify, defend and hold harmless the Indemnified Parties shall apply to all liability as defined above regardless of whether the Indemnified Parties were or are alleged to have been negligent, except that it shall not apply to claims arising from the sole negligence or willful intentional misconduct of the Indemnified Parties. Consultant’s obligation to defend the Indemnified Parties is not contingent upon there being an acknowledgement of or determination of the merit of any claims, liability, demands, causes of action, suits, losses, expenses, errors, omissions and/or costs. (c) Subconsultants/subcontractors and Indemnification. Consultant agrees to and shall obtain executed indemnity agreements in favor of the Indemnified Parties with provisions identical to those set forth from each and every Subconsultant, Subcontractor, or other person or entity involved by, for, with, or on behalf of Consultant in the MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 27 of 179 Agreement No. 22-81

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performance of any aspect of this Agreement. In the event Consultant fails to obtain such indemnity obligations, Consultant shall be fully responsible for each and every Subconsultant, Subcontractor or other person or entity in terms of defense, indemnity and hold harmless obligations in favor of the Indemnified Parties as set forth above. This obligation to indemnify and defend the Indemnified Parties is binding on the successors, assigns, or heirs of Consultant and shall survive the full performance or termination of this Agreement. These indemnification provisions are independent of and shall not in any way be limited or superseded by the insurance requirements and insurance-related provisions of this Agreement.
(d) City Lost or Damaged Property – Theft. Consultant further agrees to pay or cause to be paid to the Indemnified Parties’ benefit, any and all damages, fines, penalties, and loss or theft of property of the City arising out of or related in any way to the negligent acts or omissions or intentional misconduct of Consultant or of Consultant’s officers, agents, representatives, employees, independent contractors, subconsultants or affiliated or related entities and/or its or their employees, agents and representatives, whether such actions, omissions to act, negligence or intentional conduct is or was authorized by this Agreement or not. City assumes no responsibility whatsoever for any property placed on the premises of City. Consultant further agrees to waive all rights of subrogation against the Indemnified Parties.
(e) Non-Waiver and Non-Exhaustion of City’s Further Rights and Remedies. No aspect of this provision shall in any way limit or effect the rights of the Indemnified Parties against the Consultant under the terms of this Agreement or otherwise. The indemnification provisions shall apply regardless of whether this Agreement is executed after Consultant begins the work and shall extend to claims arising after this Agreement is performed or terminated, including a dispute as to the termination of Consultant. The indemnity obligations of Consultant shall continue until it is determined by final judgment that the claim against the City and any Indemnified Parties is determined by final judgment and after exhaustion of any rights of appeal. Further, no aspect of this provision shall impact the City’s rights to contribution from Consultant, or for the City to dispute Consultant’s refusal to defend and indemnify City. (f) Limitations on Scope of Indemnity. Notwithstanding the foregoing, Consultant shall not be responsible for indemnification for claims or losses caused by the sole negligence or intentional wrongdoing of Indemnified Parties. Further, the indemnity provided shall be interpreted as broadly as permitted under California law and as to agreements between parties and shall if required be reformed to be consistent with those laws to protect and save this provision for the protection of the Indemnified Parties. (g) The obligations of Consultant under this or any other provision of this Agreement shall not be limited by the provisions of any workers’ compensation act or similar act. The Consultant expressly waives any statutory immunity under such statutes or laws as to the Indemnified Parties. The Consultant’s indemnity obligation set forth in this Section 9 shall not be limited by the limits of any policies of insurance required or provided by the Consultant pursuant to this Agreement.

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(h) The Consultant’s covenant under this Section 9 shall survive the expiration or termination of this Agreement.

10. INSURANCE
(a) Types of Required Coverages
Without limiting the indemnity provisions of the Contract, the Consultant shall procure and maintain in full force and effect during the term of the Contract, the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.
(1) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering “Any Auto” (Symbol 1), including owned, nonowned and hired autos, or the exact equivalent, with minimum limits of $100,000 for bodily injury and property damage, each accident. If Consultant owns no vehicles, auto liability coverage may be provided by means of a non-owned and hired auto endorsement to the general liability policy. Automobile liability insurance and endorsements shall be kept in force at all times during the performance of this Agreement.
(2) Workers’ Compensation: If applicable, Workers’ Compensation Insurance, as required by the State of California and Employer’s Liability Insurance with a limit of not less than $1,000,000 each accident for bodily injury and $1,000,000 each employee for bodily injury by disease.
(b) Endorsements
Insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval.
(1) The insurance coverages required by Section (a)(1) Automobile Liability Insurance shall contain the following provisions or be endorsed to provide the following:

Additional Insured: The City, its elected officials, officers, employees, volunteers, boards, agents and representatives shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Contract. Coverage for the additional insureds shall apply to the fullest extent permitted by law.

Additional Insured Endorsements shall not:

1. Be limited to “Ongoing Operations”

2. Exclude “Contractual Liability”

3. Restrict coverage to the “Sole” liability of consultant

4. Exclude “Third-Party-Over Actions”
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5. Contain any other exclusion contrary to the Contract) (2) The policy or policies of insurance required by Section (a)(2) Workers’ Compensation shall be endorsed, as follows:

Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the indemnified parties.
(c) Notice of Cancellation
Required insurance policies shall not be cancelled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.

11. INDEPENDENT CONTRACTOR
(a) Consultant is and shall at all times remain as to the City a wholly independent contractor. The personnel performing the services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control and shall not be construed to be employees of City for any purpose, including eligibility under Public Employees Retirement Law. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of Consultant’s officers, employees, or agents, except as set forth in this Agreement.

Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the City.

Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner.
(b) No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement City shall not pay salaries, wages, or other compensation or benefits to Consultant for performing services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder.
(c) In regard to the professional services provided by Consultant and defined in Exhibit “A,” City and Consultant specifically agree as follows:
(1) While Consultant may perform certain services at the premises of City, Consultant is not required to do so and may perform services at its separate business location.
(2) With the exception of agreed upon project completion dates and the agreement the Consultant will be available at reasonable business hours, the Consultant shall have the ability to set his/her own hours of operation.
(3) Consultant represents that the services he/she performs under this Agreement are the same services Consultant is customarily engaged in MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 30 of 179 Agreement No. 22-81

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his/her business. City acknowledges that Consultant does not perform services exclusively for City and that Consultant performs or is available to perform these same services to other clients.
(4) Consultant will use his/her own discretion and independent judgment in the performance of the services rendered for City under the terms of this Agreement.

12. LEGAL RESPONSIBILITIES
The Consultant shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its services pursuant to this Agreement. The Consultant shall at all times observe and comply with all such laws and regulations. The City, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Consultant to comply with this Section.

13. UNDUE INFLUENCE
Consultant declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of the City of Montclair in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of the City of Montclair will receive compensation, directly or indirectly, from Consultant, or from any officer, employee or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement.

Violation of this Section shall be a material breach of this Agreement entitling the City to any and all remedies at law or in equity.

14. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member, officer, or employee of City, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the Project during his/her tenure or for one year thereafter, shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for work to be performed in connection with the project performed under this Agreement.

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(b) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requests for admissions, or other discovery request, court order, or subpoena from any person or party regarding this Agreement and the work performed thereunder or with respect to any project or property located within the City. City retains the right, but has no obligation, to represent Consultant and/or be present at any deposition, hearing, or similar proceeding.

Consultant agrees to cooperate fully with City and to provide the opportunity to review any response to discovery requests provided by Consultant. However, City’s right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
(c) Consultant covenants that neither he/she nor any office or principal of their firm have any interest in, or shall acquire any interest, directly or indirectly, which will conflict in any manner or degree with the performance of their services hereunder.

Consultant further covenants that in the performance of this Agreement, no person having such interest shall be employed by them as an officer, employee, agent or subconsultant.

16. NOTICES
Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice:

To City: Michael Diaz, Director of Community Development City of Montclair
5111 Benito Street
Montclair, CA 91763
To Consultant: Donald Rucker, President
Christian Development Center
5080 Kingsley Street
Montclair, CA 91763
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17. ASSIGNMENT
The Consultant shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of the City.

Consultant’s responsible employee may use assistants, under his direct supervision, to perform some of the services under this Agreement. Consultant shall provide City fourteen (14) days’ notice prior to the departure of the responsible employee from Consultant’s employ. Should he leave Consultant’s employ, the City shall have the option to immediately terminate this Agreement, within three (3) days of the close of said notice period. Upon termination of this Agreement, Consultant’s sole compensation shall be payment for actual services performed up to, and including, the date of termination or as may be otherwise agreed to in writing between the City Council and the Consultant.

18. LICENSES
At all times during the term of this Agreement, Consultant shall have in full force and effect, all licenses required of it by law for the performance of the services described in this Agreement, including a City of Montclair business license.

19. GOVERNING LAW
The City and Consultant understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the municipal, superior, or federal district court with jurisdiction over the City of Montclair.

20. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party’s own independent investigation of any and all facts such party deems material.

21. CONFIDENTIALITY
Information and materials obtained by the Consultant from City during the performance of this Agreement shall be treated as strictly confidential and shall not be used by the Consultant for any purpose other than the performance of this Agreement.

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22. DISCRIMINATION
The Consultant agrees that no person shall be excluded from employment in the performance of this Agreement on grounds of race, creed, color, sex, age, marital status, or place of national origin. In this connection, the Consultant agrees to comply with all County, State and Federal laws relating to equal employment opportunity rights.

23. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant warrants and represents that he/she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.

CITY OF MONTCLAIR CHRISTIAN DEVELOPMENT CENTER
By: By:

Javier John Dutrey, Mayor Donald Rucker, President
Date: Date:

Attest:

By:

Andrea M. Myrick, City Clerk
Approved as to Form:

By:

Diane E. Robbins, City Attorney
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EXHIBIT A

DEFINITIONS
HOMELESS OUTREACH. Proactive exploration and engagement of homeless individuals and/or families either occupying or migrating through various portions of the City.

NAVIGATION OF SERVICES. Exploration and enrollment (of homeless individuals) into various programs and services based on individual needs. Including but not limited to: Drug and Alcohol rehabilitation programs, financial assistance, medical and mental health resources, assistance to social services programs, temporary and permeant housing, and transportation services.

HANDS-ON CASE MANAGEMENT. One-on-one intervention with homeless individuals and/or families, including, but not limited to, navigation of services and development of personalized plans and strategies needed to overcome obstacles, obtain, and sustain long-term housing.

PAROLE/PROBATION INTERVENTION. Interaction with Parole and Probation Officers regarding status of homeless individuals on supervised release programs and assistance in obtaining available housing and participating in rehabilitation programs offered by Parole and Probation Departments (including authorization to place said individuals into programs and facilities that cross county lines).

IN-HOUSE REHABILITATION CENTERS. Facilities that provide “In-Patient” Drug and Alcohol treatment programs necessary to overcome addiction to said substances.

QUALIFYING CRITERIA. Requirements for entering various in-house rehabilitation facilities and/or housing programs.

COURT APPOINTED OBLIGATIONS. Mandated drug and alcohol treatment programs as well as mandated counseling services and/or classes (including, but not limited to, Anger Management, Parenting Classes, Behavior Modification, Domestic Violence, Driving under the Influence, etc.).

MONTCLAIR’S TRAILER PROGRAM. In accordance with the City’s Homeless Program, Metro Honda of Montclair purchases recreational trailers for homeless individuals and/or families in an effort to provide temporary, transitional, and affordable housing.

ADEQUATE SUPPLIES OF FOOD/MISCELLANEOUS ITEMS. Enough food, clothing, and other miscellaneous items needed to sustain individuals and/or families participating in programs or transitioning into temporary/permanent housing for a determined amount of time.

SERVICES PROVIDED
During the term of this Agreement and in accordance with Section 2, CDC shall provide the services described below:

1. Hands-on Case Management services for individuals and/or families experiencing homelessness or at imminent risk of experiencing homelessness. CDC provides a widerange of services and are available 24 Hours a Day/7 Days a Week. Said services include, but are not limited to:

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 Accompanies the City’s Special Operations Unit on Homeless Outreach Details a minimum of two times per week as well as responds to special requests/calls for service from said unit regarding homeless individuals and/or families in need of assistance.
 Provides on-site counseling and/or case management services to individuals both willing and reluctant to accept services. Said services include, but are not limited to, comprehensive interviews and information gathering. Outreach and intervention with family members, friends, and social workers if applicable. Navigation of services based on individual needs, including, but not limited to, in and out-patient drug and alcohol programs, medical and/or mental health assessments, domestic violence referrals (including transportation to safe houses), intervention and placement of said individuals through Adult Protective Services, assessment of prescribed and/or needed medications, Parole and Probation intervention, as well as assessment of individuals for financial aid programs and other necessary benefits needed to assist homeless individuals and/or families with breaking their cycle of homelessness.  Completion of all required and/or necessary documentation (including, San Bernardino County’s Exhibit E).
 Transports individuals to various in-house rehabilitation centers and/or housing programs throughout various counties, including, but not limited to, San Bernardino, Riverside, and Los Angeles County.
 Provides transportation to various appointments and facilities including, but not limited to, Doctors appointments, counseling sessions, Parole and Probation offices, Department of Motor Vehicles, Social Service offices, employment agencies, employment interviews, as well as various courthouses and rehabilitation centers for the purpose of fulfilling mandatory and/or court appointed obligations, and other agencies and organizations providing services that assist individuals with integrating back into society.

2. Explores appropriate housing options based on individual needs and economic status. Said housing includes, but is not limited to, family shelter programs, safe houses, room and board facilities, shared housing, assisted living accommodations, long-term care facilities, skilled nursing facilities, sober living homes, rooms for rent, apartment units, as well as mobile homes and recreational trailers used for temporary and permanent housing.

3. In cooperation with Metro Honda of Montclair temporary housing assistance (i.e. purchasing trailers for homeless individuals), Case Managers are responsible for management and maintenance of trailers, including, but not limited to:
 Conducts monthly interior and exterior inspections and/or evaluations of trailers for damages, defects, and signs of deterioration (including, but not limited to, faulty weather protection, dampness of habitable rooms, electrical hazards, plumbing hazards, inadequate sanitation facilities, hazardous mechanical equipment, inoperable and/or hazardous appliances, non-functioning smoke and/or carbon monoxide detectors) as well as cleanliness and proper care of unit and surrounding premises.
 Evaluates necessary repairs.

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 Obtains bids for required and/or necessary repairs and improvements needed to trailers.
 Facilitates needed and/or necessary repairs and improvements conducted on trailers.  Facilitates all necessary contracts and agreements with occupants placed in trailers.  Monitors behavior of occupants, including, but not limited to, enforcement of park regulations and/or house rules.
 Provides Case Management services to occupants of said trailers in accordance with guidelines noted above.
 Works closely with Metro Honda staff members to purchase additional trailers and other forms of temporary and transitional housing in accordance with City of Montclair’s trailer program with said organization.
 Conducts all administrative transactions to transfer and/or register new trailers.  Searches various locations for proper placement of new trailers.

4. Enters and maintains appropriate and up-to-date information on homeless individuals contacted by the City’s Special Operations Unit into San Bernardino County’s Homeless Management Information System (HMIS)

5. Maintain and disperse adequate supplies of food, clothing, and hygiene items (as well as other miscellaneous items) as needed for homeless individuals and/or families participating in programs or settling into various forms of housing.

6. Provides parenting and life skills classes to homeless individuals and families.

7. Attends and maintains appropriate and up-to-date training on various programs and resources (including, but not limited to, homeless computer programs and databases necessary to track and assist homeless individuals). Temporary and permanent housing programs, rental assistance programs, financial aid programs, mental health and healthcare programs, legal aid programs, Social Security/SSI benefits, food and clothing programs, utility assistance, as well as qualifying criteria and strategies necessary to assist homeless individuals and/or families with securing and sustaining stable living environments and life styles.

8. Attends a variety of monthly meetings as well as incidental and/or on-site meetings and interventions as requested by the City’s Special Operations Unit. Said meetings and/or interventions include, but are not limited to:
 West-End Steering Committee (Monthly Meeting)
 Interagency Council on Homelessness (Monthly Meeting)  Homeless Service Providers (Monthly Meeting)
 West End Behavioral Health (Monthly Meeting)
 Faith-Based Collaborative (Monthly Meeting), as well as  On and off-site meetings and interventions with chronic homeless individuals for purposes of evaluating and/or screening said individuals for appropriate programs.  Meetings with family members, friends and social workers of said individual(s)  On and Off-Site meetings to assists homeless individuals with required interviews and/or screening criteria necessary to enter various in-house rehabilitation centers and/or housing programs.
 Meets and collaborates with various agencies and organizations to determine appropriate placement and/or services for said individuals and families.

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9. Maintains records of all supporting documents and submits to the City’s Special Operations Unit on the first day of each month. Documentation includes but is not limited to:
 Individuals served
 Actions taken.
 Services provided.
 Receipts for purchases or transportation provided.

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EXHIBIT B
The compensation for the services provided by CDC is set at $5,000 per month not to exceed $45,000 for the term of the agreement. Compensation is to be provided by funds made available by the “Homeless Housing Assistance & Prevention Grant” (HHAP), at $2,800 per month; and the City of Montclair at $2,200 per month; in accordance with the payment rates and terms and the schedule of payment as set forth herein.

In the event grant funding for said services is lapsed, reduced, terminated, enhanced, extended, decreased, or diminished, the City shall assume the monthly payment, in part or in full, up to the specified monthly amount, until the conclusion of the agreement timeframe set forth in this Agreement.

Payment Schedule
(October 1, 2022 – June 30, 2023)
Month HHAP Amount City Amount
October $2,800 $2,200
November $2,800 $2,200
December $2,800 $2,200
January $2,800 $2,200
February $2,800 $2,200
March $2,800 $2,200
April $2,800 $2,200
May $2,800 $2,200
June $2,800 $2,200
Sub-totals $25,200 $19,800
TOTAL $45,000
MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 39 of 179

CITY COUNCIL

AGENDA REPORT
DATE: SEPTEMBER 19, 2022
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 2
FILE I.D.: EDD100/LDU460
DEPT.: ECONOMIC DEV.

PREPARER: M. FUENTES
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 22–83 WITH CRP/VP MONTCLAIR VILLAGE OWNER, LLC., AN OPERATIONS AND MANAGEMENT REGULATORY AGREEMENT REGARDING THE PROPERTY LOCATED AT 5040–5050 ARROW

HIGHWAY, SUBJECT TO ANY REVISIONS DEEMED NECESSARY BY THE CITY ATTORNEY REASON FOR CONSIDERATION: Through the entitlement process and beginning with the Paseos at Montclair North project completed in 2011, the City Council requires that all multifamily projects in the City of Montclair record a covenant on the property related to management and maintenance.

Agreement No. 22–83, the Operations & Management Regulatory Agreement ("Regulatory Agreement") would become the required covenant for the Village at Montclair project upon recordation.

A copy of the proposed Regulatory Agreement No. 22–83 is attached for City Council review and consideration.

BACKGROUND: During the 1980s and 1990s, the City’s Housing Improvement Task Force was charged with improving multifamily housing conditions within the community.

A major focus of the Housing Improvement Task Force became the education of property owners regarding the management and maintenance responsibilities of their investment properties. To that end, staff was directed to develop covenants for all new multifamily developments that outline maintenance and managerial responsibilities and to provide the City with a means to enforce such covenants.

The purpose of the Operations and Management Regulatory Agreement ("Regulatory Agreement") is to create a recorded document on the property that outlines the responsibilities of multifamily property owners in the City of Montclair for current and future property owners.

Village at Montclair
The Village at Montclair Project is located within the boundaries of the amended North Montclair Downtown Specific Plan (NMDSP). The proposed development is generally located at 5040–5050 Arrow Highway. The NMDSP was originally adopted by the City Council on May 16, 2006. The amended NMDSP was approved by the City Council on March 20, 2017.

The NMDSP encourages development following urban–style design patterns focused around travel nodes within proximity to commercial shopping opportunities and public transit. The Planning Commission and City Council approved the 6.68 acres project to include approximately 24,919 square feet of ground level commercial lease space and 330 permanent apartment units in an urban–styled mixed–use community. The City Council approved the Village at Montclair project on December 7, 2020.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 40 of 179 The project entitlements for the Village at Montclair were subject to compliance with a number of Conditions of Approval adopted by the Planning Commission and City Council. One of the Conditions of Approval included the following requirements:

Owner must consent, in writing, to record a covenant and an Operations & Management Regulatory Agreement – The Village at Montclair (hereafter Regulatory Agreement) against the entire property providing for the perpetual maintenance of all buildings and improvements, including roadways, public easements, retaining walls, drainage facilities, and water and sewer systems. The Regulatory Agreement shall be effective during the lifetime of the Project. Property shall thereafter be maintained in accordance with the property maintenance standards contained in the Montclair Municipal Code.

The Regulatory Agreement shall provide for the perpetual maintenance of all buildings and improvements for the subject multifamily residential and mixed–use project ("the Project") developed in the City for rental/lease purposes. The Regulatory Agreement shall be recorded as a condition, covenant, and restriction on the property in perpetuity unless the City Council agrees to the removal of such covenant in the event of a change in land use. The Regulatory Agreement shall address the management, operations, and maintenance of the multifamily residential and mixed–use project and shall become a Covenant that will run with the land.

The Regulatory Agreement provides terms for compliance with the above–stated Condition of Approval. The more significant points of the Regulatory Agreement include the following conditions:
 The term of the Regulatory Agreement would commence upon recordation and continue in full force and effect in perpetuity until replaced with another regulatory document.
 The developer/property owner would be required to manage the property through a property management company. The property management company retained by property owner would provide an on–site manager subject to the prior written approval of the Police Chief. In exercising approval rights, the Police Chief may require proof of ability and qualifications of the manager and Management Company. Upon 60 days of written notice from the City and showing reasonable cause, the property owner could be required to remove and replace the property manager and the property management company.
 The property management company retained by the property owner would have an employee on staff who is a California Certified Property Manager available to assist with project related management issues.
 Should the calls for police service of a serious nature in the project exceed a level reasonably considered normal and customary for this size of project as determined by the Police Chief for a consecutive two–month period, the property owner would be required to increase the amount and frequency of the courtesy patrols until such time as the Police Chief determines the calls have decreased to a normal service level.
 The property owner would direct the on–site manager to enforce all rules and regulations and apply appropriate tenant screening practices. Draft rules and regulations, a lease agreement, and rental criteria are included as exhibits to the Regulatory Agreement.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 41 of 179  The property owner has prepared a parking management plan. The plan shall require all residents to park in assigned garages or spaces and detail how compliance with on–site parking regulations will be enforced. The property owner or manager may not amend the Parking Management Plan without the approval of the City Council.
 As a part of the rental application, each potential renter of a unit shall be given a written notice detailing the on–site and off–site parking conditions and requirements at the complex. All executed rental lease agreements are required to contain the entire Parking Management Plan as an exhibit including a signed acknowledgment form which records the resident’s agreement with the terms of the Parking Management Plan.
 The property owner would agree to keep the property in a well–maintained condition, would operate the property in a businesslike manner, would not commit or permit any waste or deterioration of the property, and would not abandon any portion of the property.
 To secure timely performance of the property owner's obligations in the Agreement, the property owner would create a lien in favor of the City against all portions of the property not dedicated to the City. If the property owner neglects, refuses or fails to fulfill to complete any obligation and the City determines the property owner to be in violation of the Regulatory Agreement, the City shall make a written demand upon the property owner. The property owner has 30 days to begin to remedy default of the Regulatory Agreement. If the work required by the City is not remedied by the property owner within the time frame established by the City, the City may cure the default at the expense of the property owner through a lien.
 The property owner agrees not to sell, transfer, or dispose of any building in the project unless the sale consists of a sale of the entire property to a purchaser or as part of a larger condominium sales effort where individual units are sold to individual purchasers on a building by building or unity by unit basis.  It is acknowledged that the Regulatory Agreement would be replaced with Conditions, Covenants, and Restrictions in the event the project is converted to condominium ownership.
 The property owner shall supply the City with appropriate indemnification in connection with construction or performance under the terms of the Regulatory Agreement.

FISCAL IMPACT: Approval of Agreement No. 22–83 should have no fiscal impact on the City. The purpose of Agreement No. 22–83 is to attempt a proactive approach to dealing with any future safety or maintenance issues that could arise as a consequence of this project in the future.

RECOMMENDATION: Staff recommends that the City Council approve Agreement No. 22–83, with CRP/VP Montclair Village Owner, LLC., Operations & Management Regulatory Agreement regarding property located at 5040–5050 Arrow Highway.

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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:

City of Montclair/
City Clerk
5111 Benito Street
Montclair, California 91763
[Free Recording Request
Government Code, Sec. 6103]

OPERATIONS & MANAGEMENT REGULATORY AGREEMENT
THIS OPERATIONS & MANAGEMENT REGULATORY AGREEMENT ("Regulatory Agreement"), dated as of , 2022 for reference purposes only, is made and entered into by and between the CITY OF MONTCLAIR, a California municipal ("City") and, CRP/VP Montclair Village Owner, LLC, a Delaware limited liability company ("Owner"), with reference to the following:

A. Owner has submitted requests for approval of certain land use entitlement applications including a Parcel Map ,a Precise Plan of Design (PPD) and a Parking Management Plan (PMP) (“Project Entitlements”) to construct a proposed project with 330 residential apartments and approximately 24,919 square feet of commercial/retail/office/residential (“Flex Unit”) space with certain on-site amenities including walkable design features and a 0.31 acre neighborhood park (“Project”) on a 6.3) (gross) acres of land generally located on 5040 Arrow Hwy in the City of Montclair (“Subject Site”). The Subject Site is more particularly described in Exhibit “A” attached to this Operations and Maintenance Agreement and incorporated herein by reference.

B. The Subject Site is located within the boundaries of the North Montclair Downtown Specific Plan (NMDSP) that was originally approved by the City Council on May 15, 2006 by Resolution No. 06 -2628. The NMDSP was amended by the City Council on March 20, 2017 by Resolution No. 17-3149 and on April 3, 2017 pursuant to Ordinance No 17-965. The Applicant is contemplating the development of this property and would develop the Subject Site in accordance with the provision of the Amended North Montclair Downtown Specific Plan.

C. The Project Entitlements were approved subject to compliance with certain conditions of approval:

Condition No. 18 - Prior to the issuance of any building permit, the Applicant shall record a covenant and agreement against the entire property providing for the perpetual maintenance of all buildings and improvements, including roadways, retaining walls, drainage facilities, and water and sewer systems. The covenant and agreement shall contain affirmative covenants for the maintenance of all such improvements; provisions for the professional management of the project, mechanisms for City enforcement of the covenants and financial security to pay for any remedial actions taken as a result of non-compliance. The covenant and agreement shall be approved by the City Council and may not be cancelled or amended without City approval.

Agreement No. 22-83
September 19
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D. The purpose of this Regulatory Agreement is to comply with the requirements of Conditions of Approval found in the Precise Plan of Design.

NOW, THEREFORE, for and in consideration of the premises and the mutual promises, covenants, conditions, and restrictions herein contained, the parties hereto declare, covenant and agree as follows:

1. DEFINITIONS AND INTERPRETATION

1.1. Singular and Plural Terms. Any defined term used in the plural in this Regulatory Agreement shall refer to all members of the relevant class and any defined term used in the singular shall refer to any number of the members of the relevant class.

1.2. Accounting Principles. Any accounting term used and not specifically defined in this Regulatory Agreement shall be construed in conformity with, and all financial data required to be submitted under this Regulatory Agreement shall be prepared in conformity with, generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to the City Manager

1.3. References and Other Terms. Any reference to any other document shall include such document both as originally executed and as it may from time to time be modified.

References herein to Articles, Sections, and Exhibits shall be construed as references to this Regulatory Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The term "document" is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms "including" and "include" mean "including (include) without limitation". References herein to statutes, laws, codes, ordinances or regulations by specific number shall mean such statute, law, code, ordinance or regulation as it existed as of the date of this Regulatory Agreement and as it may be amended from time to time thereafter.

1.4. ExhibitsIncorporated. All attachments and exhibits to thisRegulatory Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference.

2. TERM
The term of this Regulatory Agreement (“Term”) shall commence on the date it is recorded in the Official Records of the County and shall continue in full force and effect in perpetuity.

3. ON-SITE MANAGEMENT & SECURITY REQUIREMENTS

3.1. Professional Management Selection
Owner, through a licensed Property Management Company, shall manage the Project, or cause it to be managed. Any Property Management Company(ies) retained to act as agent for the Owner in meeting the obligation of providing an on-site manager (for residential units) and a property manager (for commercial/retail/office units) shall be subject to prior written approval from the Executive Director Office of Public Safety/Police Chief, which approval shall not be unreasonably withheld or delayed, provided the on-site manager(s) or person(s) assigned from the applicable Property Management Company to manage the Project are appropriately qualified and meet the Property Manager Job Description attached Agreement No. 22-83 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 44 of 179 – 3 –
hereto as Exhibit "B." In addition to the requirement of a professional management of the Project by a Property Management Company, and to the extent that the Project maintains the minimum number of rental units identified in 25 CCR 42, Owner shall assure that an on-site manager and/or maintenance personnel resides on the premises of the Project at all times. The Property Management Company and on-site manager(s) or person(s) assigned shall participate in any active City Crime-Free Housing Program offered by the City.

The Property Manager assigned by the Property Management Company shall be licensed pursuant to California Business and Professions Code, Section 10131 et. Seq., and will have demonstrated experience in leasing, operating, and maintaining a mixed- use development project that contains residential, commercial, retail, and/or office uses. The Owner has not yet selected a Property Management Company. The Property Management Company and on-site resident manager shall be approved by the Executive Director of Public Safety/Police Chief prior to occupancy of any unit.

In exercising his/her approval rights hereunder, the Executive Director Office of Public Safety/Police Chief may require proof of ability and qualifications of the Property Management Company based upon (i) prior experience, (ii) other factors determined by the Executive Director Office of Public Safety/Police Chief Police Chief as necessary.

Furthermore, upon sixty (60) days prior written demand from City with cause shown, the Executive Director Office of Public Safety/Police Chief Police Chief may request that Owner replace the Property Management Company. In any agreement with a Property Manager or Property Management Company ("Management Agreement"), the Owner shall expressly reserve the right to terminate such agreement without cause. Notwithstanding City providing Owner with a written request to consider removal of the Property Management Company, City agrees that such request shall be subject to a reasonable opportunity to cure any deficiencies.

Any subsequent changes in the Property Management Company shall be approved pursuant to requirements stated in Section 3.1 above.

3.2. ManagementResponsibilities.

Owner shall assure compliance with the following management responsibilities during the term of this Regulatory Agreement:
(1) Management Obligations-Residential. The Owner shall maintain the legally required presence of an on-site manager pursuant to California Code of Regulations, Title 25, Section 42. The Property Management Company shall ensure that tenant application and screening practices are developed and enforced, that all rules and regulations are developed and enforced and that use of all facilities are managed. The Owner, through the Property Management Company, will ensure that the Project is well maintained pursuant to the standards developed in this Regulatory Agreement and the City of Montclair Municipal Code.
(2) Registration and Management of Rentals. The Owner, with its Property Management Company, shall develop all rules, documents and procedures to assure all rental/lease occupancies of residential units are professionally managed including but not limited to:
• Application(s)
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• Crime-Free Addendum and other required addenda
• Tenant screening tools"
(3) Management Obligations-Commercial/Office. The Owner shall maintain a Property Management Company and a licensed commercial broker for the commercial/retail/office portion of the Project. The Commercial Broker shall ensure that appropriate lease and screening practices are developed and enforced and that rules and regulations pertaining to lease of commercial/retail/office space and the common area are developed, enforced, and managed. The leasing agent shall pursue the lease of Flex Units to commercial/retail/office users providing services or products in conformance with the NMDSP. The Owner, through the Property Management Company, will ensure that the Project is well managed and maintained pursuant to the standards contained in the Regulatory Agreement and in compliance with the Conditions of Approval for the Project.
(4) Compliance with North Montclair Downtown Specific Plan for Commercial Units.

The Commercial Broker shall be responsible for screening prospective tenant/lessees of commercial/retail/office lease spaces for compliance with Table 5-2 Allowed Land Use and Permit Requirement as contained in the North Montclair Downtown Specific Plan (NMDSP). In addition, the Commercial Broker shall direct all prospective tenants/lessees to obtain approval of a Zoning Use Review Application (ZURA) and a Business License from the City of Montclair.
(5) Compliance with Rules. Renters/lessees occupying residential and Flex Units within the Project shall be subject to all rules and regulations developed by the Property Management Company. The Property Management Company shall establish a system for remedying violations and seeking compliance with the rules and regulations. The rules established by the Property Management Company for residential and Flex Units shall include provisions for eviction of renters/lessees for material violations of the rules and regulations of the Project.
(6) Maintenance of Interior of Units. The Property Management Company shall develop and implement rules for maintenance and upkeep of the interior of the rental units. (7) Alcoholic Beverages/Controlled Substances. Tenant rules shall prevent the consumption of alcoholic beverages or controlled substances in common areas anywhere in the Project except in those areas allowed by law and expressly designated by Owner/Property Management Company. Areas allowing the consumption of alcoholic beverages or controlled substances, if not subject to a California Alcohol Beverage Control license, shall be subject to the approval of the Executive Director, Office of Public Safety/Police Chief or his/her designee, with consent not to be unreasonably withheld.

3.3. Security Requirements. Owner shall provide the following security and security monitoring measures during the term of this Regulatory Agreement:
(1) Owner agrees to direct the Property Management Company to enforce property rules and regulations as they are periodically updated and published in the lease signed by each tenant/resident. An example of current rules and regulations are attached hereto as Exhibit "C". Owner shall supply the City a copy of all updated rules and regulations upon request.

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(2) Owner shall utilize the California Lease (or rental) Agreement for residential tenancies attached hereto as Exhibit "D", as periodically updated, or modified or similar form. .

Owner shall direct the Property Management Company to enforce all of its provisions.

Owner shall supply the City a copy of any updated form lease/rental documents and/or community rules and regulations upon request.
(3) Owner shall direct Property Management Company to investigate each potential resident’s suitability, according to all applicable laws, to fulfill all obligations to comply with the rules established for the Project.
(4) Owner shall direct Commercial Broker to investigate each potential commercial/retail/office users suitability based on established commercial real estate and industry practices and ability to fulfill all obligations to comply with the rules established for the Project. A copy of the commercial/retail/office lease or rental agreement is attached hereto as Exhibit "E". Owner shall supply the City a copy of any updated form lease/rental documents upon request.
(5) To the extent allowed by law, Owner shall prohibit residential lessee or tenant from subleasing or temporarily renting the leased or rented unit including such temporary rentals as Airbnb or similar rental services. This prohibition against such subleases shall be included in the lease or rental agreement..
(6) Owner shall provide the following security and security monitoring measures during the term of this Regulatory Agreement:
i. Owner shall develop a "Security Plan" acceptable and approved by the Montclair Police Department which, at a minimum, shall include the installation, operation, and maintenance of security cameras throughout the Project.
ii. At any time during the term of the Regulatory Agreement, should the calls for Police service or calls for Police response at the Project exceed a level reasonably considered normal and customary for the size of the Project, as determined by the Executive Director Office of Public Safety/Police Chief, , during any consecutive two-month period, the Owner shall be required to provide a State-licensed security patrol through a company retained by the Owner at Owner’s expense.
iii. The State-licensed security patrol company shall be retained by the Owner, with the prior approval of the Executive Director Office of Public Safety/Police Chief, for a period of time to be reasonably determined by the Executive Director Office of Public Safety/Police Chief. The approval of such a State-licensed security company shall not be unreasonably withheld. The frequency of patrols and Owner’s cost for payment of such patrols shall be reasonable in light of the number and nature of calls for Police responses in subsection ii above.

3.4. Balconies, Patios, and Porches.

Owner and/or Property Management Company shall provide for and enforce the following outdoor storage regulations during the term of this Regulatory Agreement:

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(1) Balconies, patios, and/or porches on residential units approved for use as private usable open space must be kept free from being enclosed or covered by a tenant in any way and must not be used for storage purposes. Storage of materials that detract from the appearance of buildings is prohibited in the above–mentioned locations as well as anywhere that is directly visible to the public. (2) All rental agreements/leases for the project must include a rule preventing the storage of boxes or materials, placement of indoor furniture, visible exercise equipment, hanging clothing, building of enclosures, the installation of makeshift screening materials, or any other similar item in or on a balcony, patio, or porch. (3) The exterior of ground floor level Flex Units that are occupied as housing units must keep the exterior of the unit free of stored items, mismatched planters/pots, makeshift fencing materials, and other items that detract from the appearance of buildings and obstruct any path of travel. All furniture (e.g., seating, tables, etc.) shall be specifically designed and intended for outdoor use in colors and materials coordinated and approved by the Property Management Company.

3.5. Cable and Satellite Service Equipment.

Placement of antennas for radio and television reception may be permitted within a balcony, terrace, deck or patio that is intended for exclusive use of the subject tenant, subject to applicable law and the following criteria:
(1) For the purpose of this Section, the word “antenna” shall include a single dish antenna, usually in a circular shape with a parabolic curve design constructed of a solid or open mesh surface, not more than two feet (2'–0") in diameter, either surface– mounted or by means of a freestanding tripod that is placed entirely within the permitted areas.
(2) Only one (1) antenna per dwelling unit shall be permitted (3) The method of attachment and or arrangement of said antenna shall be accomplished in the least visually distracting manner as possible.
(4) No antennas shall be placed, attached, or installed in any common areas of the development including the roof, hallways, common courtyards, walkways, or the exterior walls of the apartment building.
(5) No overhead or external wiring of the antennas shall be permitted.

3.6. Parking Management Plan and Parking Management.

Owner has prepared and must implement the mechanics of a Parking Management Plan (PMP) showing all resident, employee, guest parking, and public parking areas pursuant to entitlement approvals of the City attached hereto as Exhibit “F". The PMP shall require all residents to park in assigned spaces and detail how compliance with on-site parking regulations will be enforced for the Project. All parking spaces shall be identified with a unique number that shall be stenciled on the pavement and regularly maintained. The PMP shall be approved by the City Council prior to its recordation and implementation. The PMP shall not be amended by the Owner without the prior approval of the City Council. The Agreement No. 22-83 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 48 of 179 – 7 –
PMP may periodically be updated at the request of the City. The PMP shall also include the following (subject to applicable law):
(1) The PMP shall provide that no utility trailers, commercial or construction vehicle of any length, buses or passenger vans, watercraft, or recreational vehicles shall be permitted to be stored or parked overnight on any private street and/or parking areas within the Project. "Recreational Vehicle" shall mean recreational vehicles, motor homes, campers, utility trailers, watercraft, travel trailer, truck camper, camping trailer, off-road vehicles, land conveyances, vessels, aircraft, boats, trailers, van conversions, customized trucks, and other similar type vehicles that are designed for human habitation for recreational or emergency purposes, or that require a special driver's license (e.g., noncommercial Class A or Class B) to operate. (2) The PMP shall provide that any parking space provided shall, at all times, be assigned to a units within the Project or guests of tenants in the Project pursuant to the PMP. (3) The PMP shall provide that any enclosed garage spaces or covered parking spaces provided shall, at all times, be assigned to a unit within the Project pursuant to the PMP.

Storage within a garage shall be allowed only to the extent the garage includes a dedicated storage cabinet or storage area that does not impede or obstruct direct access to the parking space(s) within the garage. No storage shall be permitted within covered parking spaces.
(4) Any tandem parking spaces identified in the PMP shall be assigned to the same dwelling unit or flex unit. For purposes of the PMP, each tandem space shall count toward fulfillment of the total requirement of parking spaces for the residential portion of the project. Any tandem parking spaces identified in the PMP shall be considered a second parking space assigned to the same dwelling unit or Flex Unit.

Tandem spaces shall only be assigned to and utilized for the parking of registered vehicles assigned to the residents of the same unit or occupants of the same Flex Unit. Tandem spaces shall not be assigned and/or rented out to other residents or users.
(5) The Property Management Company may not introduce, require, stipulate, or incorporate into a lease or rental payments a separate fee for any surplus parking that exceeds the minimum threshold for assigned parking based on per–unit parking requirements as specified in the NMDSP and the PMP for the project. If parking spaces that exceed the minimum threshold requirement as specified herein are available, the Owner/Property Management Company may apply to the City Council for an amendment to the approved PMP.
(6) As part of the initial rental/lease application process, each potential renter/lessee of a unit within the Project shall be given written notice of the PMPs on-site parking and off-site parking conditions and requirements. All executed rental lease agreements will contain a detailed summary of the PMP as an exhibit including a signed acknowledgement form which records the resident’s agreement with the terms of the PMP. An example of such notice with a tenant acknowledgement is attached as Exhibit "G". In addition, the prospective tenant(s) shall receive an electronic version of the entire PMP, either as an email or other electronic format specified by the renter. The entire PMP shall also be available for review in the office of the on-site property manager and available online on the Project's website for residents/tenants to view.

Agreement No. 22-83 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 49 of 179 – 8 –

4. MAINTENANCE, OPERATION, PRESERVATION AND REPAIR OF

PROPERTY

4.1. Operation of Commercial/Retail/Office/Residential Flex Units Required.

Owner shall make approximately 24,919 square feet of ground floor space available for commercial/retail/office/residential use. To assist the Owner/Property Management Company and Commercial Broker in achieving full occupancy of the Project with commercial and residential uses per approved plans, the following sequential leasing strategy may be employed as a means to create intact commercial areas for the project:
(1) The total floor area of Flex (interim residential use of commercial retail spaces) and Commercial Units (perpetual use of spaces as commercial retail, restaurant, office uses pursuant to the provisions of the North Montclair Downtown Specific Plan) as approved for the project shall be a minimum of approximately 24,919 square feet, and shall be inclusive of locations depicted on the “Ground Floor Leasing Plan," attached hereto as Exhibit "H".
(2) Units designated as Commercial shall be reserved for commercial use in perpetuity after each Commercial unit receives its Certificate of Occupancy. (3) The use of Flex Units for residential occupancy shall be considered an interim use as part of an overall strategy to achieve full occupancy of designated Flex Unit ground floor areas as permanent commercial uses to support the approved mixed-use development. After a Flex Unit has been converted to a commercial use, it shall be deemed a permanent commercial use and not be reestablished as a residential use, and the Flex Unit designation shall no-longer apply.
(4) Owner shall limit residential tenant use of any Flex Units to short–term (12 month) lease agreements to allow for conversion of Flex Units to commercial/restaurant uses. (5) Until full occupancy is achieved, the Owner/Property Management Company shall provide the City with an annual vacancy–occupancy progress report for each building.

After achieving full occupancy of residential units and commercial space, the Owner/ Property Management Company and the City may mutually determine an annual vacancy-occupancy report is no longer necessary
(6) To assist the Owner/Property Management Company in achieving full occupancy of the Project with commercial and residential uses per approved plans, the following sequential leasing strategy may be employed as a means to create intact commercial areas for the project:
i. Gateway Focus Area (Intersection of Arrow Highway at Fremont Avenue at Buildings 1 and 2).

Total Number of Units: 17
Commercial Unit No.: 1-110, 1-112, 1-116, 1-118, 2-102, 2-103, 2-104, 2- 105 (8 Units)
Flex Unit No: 1-102, 1-104, 1-106, 1-108, 1-120, 1-121, 2-101, 2-113, 2-114 (9 Units)
Agreement No. 22-83 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 50 of 179 – 9 –
Total Floor Area: 17,150 s.f.
ii. Station Promenade Focus Area (Plaza Area leading to Montclair Transcenter at Building 4).

Total Number of Units: 13
Commercial Unit No.: 4-135, 4-136 (2 Units)
Flex Unit Nos: 4-101, 4-102, 4-103, 4-104, 4-106, 4-107, 4-108, 4-109, 4- 110, 4-137, 4-139 (11 Units)
iii. Total Floor Area: 7,769 s.f.
(7) Flex Units in Buildings 1, 2 and 4 (identified in Gateway Focus Area under subsection “6” of section 4.1) may, upon application to the City, be converted to, and leased as a temporary residential use, as provided in this Section, for a period of not more than 12 months following the date the lease was entered into for each applicable unit, after such time shall be converted to a commercial use, except as follows:
i. At the end of the initial 12-month lease period, the Owner/Property Management Company, upon application to the City, may request an extension to use a Flex Unit for residential use for additional 12-month periods and the City shall not unreasonably withhold its consent based on lack of interest from nonresidential tenants; and
ii. Prior to an approval of any additional 12-month extension request, the application for such an extension shall be accompanied by an independent Retail Market Analysis per subsection "8" of section 4. Completed within the most recent six months preceding application for retention as a residential unit; and
iii. After the initial 24-month (two 12-month leases) period established for Flex Units in subsection "I" of this section the Owner/Property Management Company may submit a formal application for each additional 12-month extension for each designated Flex Unit within the project for which the extension is requested. Such applications along with supporting documentation regarding marketing and leasing activity as identified in subsection “8” of section 4.1, shall be submitted to the Community Development Director for consideration. The decision of the Director may be appealed to the City Manager.
(8) A Retail Market Analyses shall be prepared by an independent third party consultant jointly approved by the Owner/Property Management Company and the City, and be prepared at the Owner's/Property Management Company's expense. Such reports shall be conducted within the twelve months preceding any additional extension request for the temporary use of a Flex Unit(s) as a residential or live-work use and every 12 months thereafter; provided, however, the Community Development Director shall have final say in determining that the data in the most recent market analysis correctly represents the then current state of the area's commercial market. If the Community Development Director determines the data presented in the market analysis is no Agreement No. 22-83 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 51 of 179 – 10 –
longer valid, relevant, or properly represents the area's commercial market, the Community Development Director shall require that a new market analysis be conducted and submitted along with any extension request for the temporary use of a Flex Unit(s) as a temporary residential or live-work use. i. Retail Market Analysis defined. A Retail Market Analysis is a tool for identifying retail market trends within or around a local community. While the analysis focuses specifically on the performance of local retail markets, information on the broader economic trends within the region is critical to understanding current and future changes in the retail markets subject to the analysis.
ii. The Retail Market Analysis shall analyze and demonstrate the need for additional extensions request based on local retail market trends; consumer demand; vacancy rates; commercial versus residential lease rates; unit conversion costs from commercial/restaurant/office to residential or live– work; unit conversion costs from residential or live–work to commercial/restaurant/office; changes in demographics and population; the age and income distributions of the population; and other relevant data for uses associated with mixed–use and transit–oriented developments that affect the demand for retail/office goods and trends.
(9) Owner agrees that upon the sale, transfer, or other disposition of the Property that the Flex Unit language and sequential leasing strategy provided for in subsection 4.1 of this Regulatory Agreement shall not carry over to future Owners.

4.2. Maintenance; Periodic Improvements Required. Owner, through its Property Management Company, shall keep the Project well– maintained (including, without limitation, private streets and drives, all buildings and on–site structures;signage; sidewalks; parking lots; parking structures, exterior building mounted and/or site lighting fixtures; landscaping; open space/recreation areas onsite, dog park areas,stormdrain systemincluding all storm water treatment devices associated with the Water Quality Management Plan, fencing; foundations and pools, if any; and other Improvements) and shall operate the Project in a businesslike manner; shall prudently preserve and protect both its own and City's interests in connection with the Project, shall not commit or permit any waste or deterioration of the Project; shall not abandon any portion of the property; and shall not otherwise act in such a way as to unreasonably increase the risk of any damage to the Project or create a nuisance. Such maintenance shall include, without limitation, the following:
(1) Keeping the exterior surfaces of buildings painted, plastered or otherwise appropriately treated to be in sound condition;
(2) Replacing broken or severely etched windows and other glass surfaces promptly; (3) Keeping the property free from any accumulation of debris, graffiti, and waste materials (including pet waste);
(4) Keeping trees, lawns, shrubs and other plant materials trimmed and in healthy condition, and replacing missing or dead plant materials; (5) Maintaining all exterior light fixtures (building mounted and freestanding) in full Agreement No. 22-83 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 52 of 179 – 11 –
operating condition. Non-functioning, broken or damaged light fixtures/support structures shall be promptly repaired and/or replaced with the same fixture type as originally approved
(6) Remove graffiti on any building or associated improvement, and /or within 48 hours after its appearance. If the paint color does not match an existing wall surface for any reason, the entire wall must be painted;
(7) Keeping paved surfaces and other hardscaping elements clean and in good condition, free of dirt and grime, gum, or grease, potholes, excessive staining or unsightly accumulation of leaded motor oil/automotive fluids, significant surface cracks, dangerous uplifted walkways, or other conditions which impede paths of travel; (8) No outdoor pay telephone or vending machine (including delivery lockers) shall be installed on any public street, easement, or par. Vending machines may be allowed within building or in private outdoor recreation areas when machines are located out of view to the street and are placed with an alcove space that is architecturally integrated into the design of the building, subject to satisfaction of the Community Development Director;
(9) Prohibiting auto repairs, car washing, storage of unregisters and/or inoperable vehicles, within parking areas of the Project;
(10) Keeping the on-site storm drain system in working order and in good repair at all times including the storm water treatment devices associated with the Water Quality Management Plan; ;
(11) Keeping all private streets, drive aisles, and exterior parking area within the Project free of weeds, debris, trash, graffiti, and potholes. Owner shall be responsible for maintenance and repaving of all private streets and drive aisle surfaces; (12) Prohibiting the use of shopping carts for any commercial/office user within the Project boundaries;
(13) Maintain each dog park area in a clean orderly condition at all times to deter odors and maintain sanitary conditions. To assure compliance, each dog park area shall comply with the following minimum standards:
i. Dog park areas shall be maintained at all times, with any holes filled in, substrate properly maintained, and amenities kept in good condition and functional.
ii. Each dog park area shall be posted with rules for the dog park area in English and Spanish, in type large enough to be easily read by those entering the park.
iii. Provide adequate disposable bags, or other means of removing feces, and refuse cans for disposal. Trash cans shall be regularly emptied with contents disposed in a proper manner.
(14) Keeping refuse collection facilities (e.g. trash chutes, rooms or enclosures) shall be maintained in a sanitary, orderly, and functional condition at all times. Sanitary shall Agreement No. 22-83 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 53 of 179 – 12 –
mean free of scattered trash and food debris, spills or splatter on floors and/or walls, free of odors to the highest degree possible, and free of insects and rodents; (15) Implementing and keeping a waste and refuse collection system in good operating order at all time. The Property Management Company must develop a written policy regarding the method of waste and refuse collection for all tenants and lessees consistent with the approved Solid Waste Removal Plan (SWRP). A copy of the Master Refuse Removal Plan is attached hereto as Exhibit "I". Each tenant must be informed of the waste and refuse collection system prior to executing a rental or lease agreement. An example of such notice with tenant acknowledgment is attached hereto as Exhibit "I".

The Owner/Property Management Company may not charge an additional fee related to the type of collection method of waste and refuse.
(16) All refuse collection system or areas (e.g. trash chutes, rooms or enclosures) shall be power washed a minimum of two (2) times per month (or more frequently as needed), by the Property Management Company or by means of a hired company qualified to power wash or steam clean all refuse collection facilities and/or equipment. Such activity shall be performed with proper equipment containing a water recovery system or self-contained unit to recycle the wash (waste) water, as approved by the city. All spills and leaks shall be cleaned up immediately using a spill kit and/or appropriate Best Management Practices (BMP) that utilize absorbents or equivalent "dry" methods.

4.3. Restrictions on Alterations and Repairs.

Owner shall not remove, demolish or alter any Improvement, expect to make non- structural and any required structural repairs which preserve or increase the property's value,sand shall promptly restore, in a good and workmanlike manner, and Improvement (or other aspect or portion of the property) that is damage or destroyed from any cause.

4.4. Periodic Improvements Required.

Notwithstanding the obligations of subsection 4.1 and 4.2 above, Owner shall undertake the periodic improvements described in the attached Exhibit "J" within the timeframe reflected in Exhibit "J" (Periodic Improvements).

5. SECURITY FOR OBLIGATIONS & REMEDIAL ACTIONS.

5.1. Lien. To secure the timely performance of Owner’s obligations under Sections 4.1 and 4.2 above and this Section 5.1, Owner hereby creates in favor of City a lien against all portions of the property not dedicated to City or some other governmental agency for a public purpose (the “Lien”). If Owner neglects, refuses, or failsto fulfill or timely complete any obligation, term, or condition of Section 4.1 or 4.2 above, or if City determines there is a violation by Owner of any federal, state, or local law, ordinance, regulation, related to the Project, City may at any time thereafter declare such violations to be a public nuisance and Owner to be in default or violation of this Regulatory Agreement and make written demand upon Owner to immediately remedy the default or violation (“Notice”). Owner shall substantially commence the work required to remedy the default or violation within thirty (30) days of the Notice. If the default or violation constitutes an immediate threat to the public health, safety, or welfare, City may provide the Notice verbally, and Owner shall substantially commence the required work within twenty-four (24) hours thereof.

Agreement No. 22-83 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 54 of 179 – 13 –

5.2. Failure to Remedy; City Action. If the work required to remedy the noticed default or violation set forth in Section 5.1 above is not diligently prosecuted to a completion reasonably acceptable to City within the time frame contained in the Notice, then City may, after prior written notice to Owner providing Owner an opportunity to cure, complete all remaining work, arrange for the completion of all remaining work, and/or conduct such remedial activity as in its reasonable discretion it believes is required to remedy the default or violation. All such work or remedial activity shall be at the sole expense of Owner and shall be secured by such lien. In the event City elects to complete or arrange for completion of the work required pursuant to this Section then, after reasonable written notice providing Owner an opportunity to cure, City may require all work by Owner or its contractors to cease in order to allow adequate coordination by City. City may recover its costs for enforcement and abatement of nuisance pursuant to California Government Code, Section 54988.

5.3. Compliance. Owner shall comply with all laws and requirements of governmental agencies (including, without limitation, all requirements relating to the obtaining of governmental agency approvals) and all governmental agency approvals relating to Owner, the property or Owner's business thereon.

5.4. The Lien. The Lien shall be authorized pursuant to California Government Code, Section 54988 and shall be subordinate to any and all secured financing that Owner may obtain from time to time with respect to the property, without the need for further documentation. If, however, a lender should request additional subordination documentation, Owner shall provide City with requests to subordinate in writing.

6. OTHER AFFIRMATIVE COVENANTS

6.1. Affirmative Covenants. Throughout the Term, Owner covenants and agrees:
(1) Pay Claims and Indebtedness. Subject to all rights of offset, setoff, contest and defenses that Owner may have, promptly to pay (i) such amounts, chargeable against Owner or the property, as City reasonably deems necessary to protect and preserve the property and this Regulatory Agreement, and (ii) all encumbrances, charges, and liens on the property, with any interest on them, which, in the judgment of the City Manager are, or appear to be, prior or superior to this Regulatory Agreement. (2) Notice of Certain Matters. To give notice to City, within thirty (30) days of Owner's learning thereof, of each of the following:
i. Any dispute between Owner and any governmental agency (other than City) relating to the property, the adverse determination of which might materially, adversely affect the property; and
ii. Any change in Owner's principal place of business.

7. SALE OR TRANSFER OF PROPERTY

7.1. Property Sales Restrictions. Owner covenants and agrees not to sell, transfer or otherwise dispose of any building within the property, or any portion of a building unless such sale is either: a) a sale of the entire property to a purchaser, or b) as part of a larger condominium sales effort where individual units are sold to individual purchasers, on a building by building or unit by unit basis, consistent with the rules and regulations of the California Department of Real Estate. This section shall not be deemed, construed or interpreted to prohibit any transfer of the property to any lender, or its designees, under a Agreement No. 22-83 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 55 of 179 – 14 –
financing secured by the property with or without City's consent. In addition, it acknowledged that this Regulatory Agreement may, at some point in the future, be replaced with amended Conditions, Covenants & Restrictions to be administered by a homeowners’ association formed upon the conversion of the Project to condominium ownership. Nothing contained herein shall prohibit the removal of all or a portion of the covenants contained herein upon formation of homeowners’ association for a condominium project in compliance with the approved conditions of approval for the Project, including, but not limited to, requiring the formation of a homeowner’s association prior to the conversion or sale of any unit as a condominium. Owner shall not be responsible or liable for the acts, actions or omissions of any such homeowner’s association.

7.2. Transfers in Violation. The property and any interest in title to it shall not be transferred or conveyed to any person or entity except as provided in this Regulatory Agreement. Any such conveyance or other transfer in violation of the terms of this Regulatory Agreement shall be voidable at the election of City.

8. INDEMNIFICATION.

8.1. Indemnification. Owner shall defend, indemnify and hold the City, its officials, officers, employees, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions or negligent or willful misconduct of Owner, its officers, employees, and agents, arising out of or in connection with the performance or construction of the Project or this Regulatory Agreement, including without limitation the payment of all consequential damages, attorney’s fees and other related costs and expenses. Owner shall defend, at Owner’s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City its officials, officers, employees, and agents. Owner shall pay and satisfy any judgment, award or decree that may be rendered against City its officials, officers and employees, and agents officials, officers or employees, in any such suit, action or other legal proceeding. Owner shall reimburse City and its officials, officers and employees, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Owner’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City officials, officers, employees, agents or volunteers.

9. NONDISCRIMINATION

9.1. Nondiscrimination. Owner covenants and agreesthat there shall be no discrimination against or segregation of any person or group of persons on account of any protected class under California or Federal law including but not limed to: race, color, creed, religion, sex, sexual orientation, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property, or any part thereof, nor shall Owner itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees, or vendors of the property.

10. PERIODIC REVIEW

10.1. Periodic Review. Under direction of the City Manager, the City shall review this Regulatory Agreement annually, on or before the anniversary of the Effective Date, in order Agreement No. 22-83 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 56 of 179 – 15 –
to ascertain the good faith compliance by Owner with the terms of the Regulatory Agreement. Owner shall submit an Annual Monitoring Report, in a form acceptable to the City, within 30 days after written notice from the Director.

10.2. Special Review. The City Council may order a special review of compliance with this Regulatory Agreement at any time.

11. DEFAULTS
The occurrence of any of the following, whatever the reason therefor, shall constitute an "Event of Default" by Owner:
(1) Owner fails to perform any obligation under this Regulatory Agreement, and such failure is not cured within thirty (30) days after Owner's receipt of written notice that such obligation was not performed; provided that, if cure cannot reasonably be effected within such thirty (30)-day period, such failure shall not be an Event of Default so long as Owner (in any event, within thirty (30) days after receipt of such notice) commences cure, and thereafter diligently prosecutes such cure to completion; or.
(2) Owner is enjoined or otherwise prohibited by any governmental agency (other than City) from occupying all or any of the property and such injunction or prohibition continues unstayed for ninety (90) days or more for any reason; unless Owner is diligently attempting to have such injunction or prohibition stayed or lifted and Owner demonstrates, to the reasonable satisfaction of the City Manager, a reasonable likelihood that such stay or lifting will occur within a reasonable time.

12. REMEDIES

12.1. Remedies in General.

It is acknowledged by the parties that City would not have entered into this Regulatory Agreement if it were to be liable in damages under this Regulatory Agreement, or with respect to this Regulatory Agreement or the application thereof.

In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Regulatory Agreement, except that City shall not be liable in damages to Owner, or to any successor in interest of Owner, or to any other person, and Owner covenants not to sue for damages or claim any damages:
(1) For any breach of this Regulatory Agreement or for any cause of action which arises out of this Regulatory Agreement; or
(2) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Regulatory Agreement; or
(3) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Regulatory Agreement.

It is understood and agreed that Owner, at the time of approval of the Project, indicated their voluntary agreement to accept the conditions of approval for the Project, including this Regulatory Agreement.

Agreement No. 22-83 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 57 of 179 – 16 –

12.2. Cumulative Remedies; No Waiver. City's rights and remedies under this Regulatory Agreement are cumulative and in addition to all rights and remedies provided by law. The exercise by City of any right or remedy shall not constitute a cure or waiver of any default, nor invalidate any notice of default or any act done pursuant to any such notice, nor prejudice City in the exercise of any other right or remedy. No waiver of any default shall be implied from any omission by City to take action on account of such default if such default persists or is repeated. No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any provision of this Regulatory Agreement shall be construed as a waiver of any subsequent breach of the same provision. City's consent to or approval of any act by Owner requiring further consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act. City's acceptance of the late performance of any obligation shall not constitute a waiver by City of the right to require prompt performance of all further obligations. City's acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of City's right to proceed with the exercise of its remedies for any unfulfilled obligations; and City's acceptance of any partial performance shall not constitute a waiver by City of any rights relating to the unfulfilled portion of the applicable obligation. City shall have the right to pursue damages for Owner’s defaults but in no event shall Owner be entitled to damages of any kind from City, including, but not limited to, damages for economic loss, lost profits, or any other economic or consequential damages of any kind or nature.

13. COVENANTS TO RUN WITH THE LAND
Owner hereby subjects the property to the covenants, reservations and restrictions set forth in this Regulatory Agreement. City hereby declares its express intent that the covenants, reservations and restrictions set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon Owner's successors in interest to all or any part of the property; provided, however, that on the termination of this Regulatory Agreement said covenants, reservations and restrictions shall expire. Each and every contract, deed or other instrument hereafter executed covering or conveying all or any part of the property, or any interest therein, shall conclusively be held to have been executed, delivered and accepted subject to such covenants, reservations and restrictions, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instruments.

14. BURDEN AND BENEFIT
City and Owner hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the property by the tenants, the intended beneficiaries of such covenants, reservations and restrictions, and by furthering the public purposes for which this Regulatory Agreement was made. Tenants, the intended beneficiaries of such covenants, reservations and restrictions, and by furthering the public purposes for which this Regulatory Agreement was made.

15. UNIFORMITY; COMMON PLAN
The covenants, reservations and restrictions hereof shall apply uniformly to the property in order to establish and carry out a common plan for the use, development and improvement of the property.

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16. MISCELLANEOUS

16.1. Governing Law. This Regulatory Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.

16.2. Amendments. This Regulatory Agreement shall be amended only by a written instrument executed by the parties hereto or their successors in title, and duly recorded in the Official Records.

16.3. Notice. All notices, certificates or communications shall be sufficiently given and shall be deemed given on the second day following the date on which the same have been personally delivered or mailed by certified mail, return receipt requested, postage prepaid, addressed as follows:

If to Owner: CRP/VP Montclair Village Owner, LLC.,
4340 Von Karman Avenue, Suite 110
Newport Beach, CA 92660
With a copy to:

If to City: Mikey Fuentes, Director of Economic Development 5111 Benito Street, P.O. Box 2308
Montclair, CA 91763
Attention: City Manager
With a copy to: City of Montclair
5111 Benito Street, P.O. Box 2308
Montclair, CA 91763
Attention: City Attorney
Any of the foregoing persons may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or communications shall be sent.

16.4. Severability. If any provision of this Regulatory Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby.

16.5. Multiple Counterparts. This Regulatory Agreement may be simultaneously executed in multiple counterparts, all of which shall constitute one and the same instrument, and each of which shall be deemed to be an original.

16.6. Construction of Titles. The captions, headings and titles of the sections of this Regulatory Agreement have been inserted for convenience of reference only, and are not to be considered a part hereof and shall not in any way modify or restrict any of the terms or provisions hereof or be considered or given any effect in construing this Regulatory Agreement or any provisions hereof or in ascertaining intent, if any question of intent shall arise.

16.7. No Partnership with City. Owner is, and shall be deemed to be, an independent Agreement No. 22-83 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 59 of 179 – 18 –
contractor and is not an employee of City and shall not become an agent of City.

16.8. Attorney's Fees. In case any action at law or in equity, including an action for declaratory relief, is brought against Owner to enforce the provisions of this Regulatory Agreement, the losing party agrees to pay reasonable attorney's fees and other reasonable expenses incurred by the prevailing party.

16.9. Successors and Assigns. The terms and provisions of this Regulatory Agreement bind and benefit the heirs, legal representatives, successors and assigns of the parties.

16.10. Exhibits. Each of the Exhibits attached hereto is hereby incorporated herein by this reference.

17. Mortgage Protection
The terms of this Article 17 are for benefit of any mortgagee of the Owner providing construction financing for the Project (a "Mortgagee) and may be relied upon and shall be enforceable by the Mortgagee as if the Mortgagee were a party to this Regulatory Agreement. If the City receives notice from a Mortgagee requesting a copy of any future notice of default that may be given to Owner, and specifying the address for service thereof, then the City shall deliver to Mortgagee, concurrently with service thereon to Owner (the "Notice of Default"). No Notice of Default shall be deemed to have been duly given to the Owner unless and until a copy thereof shall have been so given to Mortgagee.

Mortgagee shall have the right (but not the obligation) to cure or remedy, or to commence to cure or remedy, the default claimed within the applicable time periods for cure specified in this Regulatory Agreement, plus an additional thirty (30) days. If, such however, the default is of a nature which can only be remedied or cured by such Mortgagee upon obtaining possession of the Project, such Mortgagee shall seek to obtain possession with diligence and continuity through a receiver or otherwise, and shall thereafter remedy or cure such default or noncompliance promptly and with diligence after obtaining possession. So long as Mortgagee is pursuing cure of the default, the City shall not exercise any right or remedy under this Regulatory Agreement on account of default. The City shall accept performance by Mortgagee of any covenant, condition, or agreement on the part of the Owner to be performed hereunder with the same force and effect as though performed by the Owner.
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Agreement No. 22-83 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 60 of 179 – 19 –
“CITY”

CITY OF MONTCLAIR,
a California municipal corporation
By:

Name: Javier “John” Dutrey
Its: Mayor
ATTEST:

By:

Name: Andrea Myrick
Agreement No. 22-83
Date:

Its: City Clerk
Date:

APPROVED AS TO FORM:

By:

Name: Diane Robbins
Its: City Attorney
Date:

IN WITNESS WHEREOF, City and Owner have executed this Regulatory Agreement by duly authorized representatives, all on the date first written hereinabove. “OWNER”
CRP/VP Montclair Village, LLC
A Delaware limited liability company
By:

Name:

Its:

Date:

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 61 of 179 Index of Exhibits to Agreement No. 22–83
Note: Exhibits are provided as an external attachment to the Agenda Packet.

Exhibit “A”
Legal Description
Exhibit “B”
Property Manager Job Description
Exhibit “C”
Rules and Regulations
Exhibit “D”
Residential Lease/Rental Agreement
Exhibit “E”
Commercial Lease/Rental Agreement
Exhibit “F”
Parking Management Plan
Exhibit “G”
Tenant Acknowledgement of Parking Management Plan
Exhibit “H”
Flex Use Ground Floor Leasing Plan
Exhibit “I”
Master Refuse Removal Plan
Exhibit “J”
Waste and Refuse Acknowledgement
Exhibit “K”
Periodic Improvement
MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 62 of 179

CITY COUNCIL

AGENDA REPORT
DATE: SEPTEMBER 19, 2022
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 3
FILE I.D.: CCK285
DEPT.: ADMIN. SVCS.

PREPARER: A. MYRICK
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 22–93 WITH RECORDS CONTROL SERVICES, INC. FOR RECORDS MANAGEMENT CONSULTING SERVICES (INVENTORY

ASSESSMENT, UPDATED RETENTION POLICY, AND STRATEGIC ROADMAP) REASON FOR CONSIDERATION: Montclair’s Citywide Records Management Program is outdated and in dire need of a complete overhaul. Departments currently manage their own records internally in several fragmented ways across different systems—both electronic and in paper—which makes it difficult for other departments and newer staff who lack the institutional knowledge to research and find documents and information.

In today's litigious society, Records Management is more important than ever, but unfortunately is still overlooked and underfunded at all levels of government. A sound records management program saves money for an organization overall by improving customer service, increasing staff efficiency, allocating scarce resources, and providing a legal foundation for how an agency conducts its daily mission.

Without a system that is organized, efficient, easy to use, and that takes all types of records into account, the City’s costs will continue to increase due to staff time that is wasted searching for information and responding to Public Records Act requests and subpoenas for records.

The City Council is requested to consider approval of Agreement No. 22–93 with Records Control Services, Inc. (RCS) for records management consulting services, including inventory assessment, updated retention policy, and development of a strategic records management roadmap.

BACKGROUND: The City’s current Records Management Program consists of a Citywide Filing System created in the 1980s; a Records Retention Schedule initially adopted in 2012; and an off–site records storage program. The Records Management Program is lacking in many areas that make it difficult for staff to locate records, destroy records that are past retention in a timely fashion, and research information.

Citywide Filing System
The City Clerk’s Office implemented the Citywide Filing System in the late 1980s loosely based on a popular filing system called the Municipal Unified Functional Filing System (MUFFS) in which physical file folders were made for each topic. The City Clerk’s Office oversaw and ensured the system’s continued and consistent use by staff. Departments were expected to maintain all paper records internally using the File ID numbers from the Citywide Filing System. Unfortunately, the system was not adaptable to the modernization of business operations and recordkeeping practices and, with the City’s adoption of computer technology, database systems, and electronic records that cannot or should not be printed through the 1990s, the paper filing system fell out of consistent use for most departments by the early 2000s.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 63 of 179 Records Retention Schedule
In 1999, in order to alleviate a lack of consistent standards across public agencies, the California Legislature added Section 12236 to the Government Code, which provided the Secretary of State direction to establish the Local Governments Records Program. As part of the program, the Secretary of State prepared, in conjunction with the State Archives Division and the City Clerk’s Association of California, the “Local Government Records Management Guidelines,” which delineate the retention periods for many types of records kept by public agencies. The Secretary of State released the Local Government Records Management Guidelines (2006), which served as a basis for many agencies’ initial records retention schedules including the City of Montclair’s, which was adopted in 2012.

A records retention schedule is a systematic plan establishing how long information must be kept for legal and operational requirements and the guideline for how to dispose of it. Municipalities implement records retention schedules to maintain regulatory compliance, as well as to ensure disposal methods are legally defensible. In essence, a retention schedule is the foundation of a solid records information management program that governs records throughout their lifecycle.

A records retention policy clarifies a public agency’s legal authority to manage records and documents entrusted to the agency’s care. Effective records management is cost– effective, improves efficiency, and reduces an agency’s potential liability regarding destruction of records. Adherence to a records retention and destruction schedule is one of the necessary components of an effective, reliable, and functional Records Management Program.

Over the past decade, staff have found the City’s retention schedule to be difficult to use, missing record types that should be included and including records that are not descriptive of our own, and incompatible with the way their department’s records are stored or filed, making it difficult to perform records destruction on schedule. The City Clerk has found this to be a common experience among other municipal agencies that used the Secretary of State’s retention guidelines as a basis for their retention schedules.

Records experts are now recommending as a best practice that retention schedules and records management programs be structured to complement one another and make it easier to find records and information when requested by outside parties, when needed for staff research, or when due for destruction. The process of analyzing and updating the City’s Records Management Program will also enable the City to adopt best practices for all types of records across various storage platforms and methods for efficiently organizing and retrieving those records.

Request for Proposals
On May 18, 2022, staff provided a Request for Proposals (RFP) for Records Management Consulting Services (Inventory Assessment, Updated Records Retention Policy and Strategic Roadmap) to five highly reputable firms that specialize in Records Management and have worked with cities throughout California on similar projects. By the June 30, 2022 deadline, proposals were received from two consultants, Records Control Services, Inc. (RCS), and Western Integrated Systems (WIS). After a committee of staff members reviewed and rated the proposals from both firms based on qualifications, references, work plan, and fees, the proposal from RCS was found to be superior and is the firm staff recommends moving forward with.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 64 of 179 Records Control Services, Inc.

Incorporated in 1979, Records Control Services, Inc. is a privately held California small business firm of information resource management specialists offering development and implementation of partial or full–scale records and information management (RIM) programs in government and private industries.

The Principal Consultants of RCS are Certified Records Managers, receiving certification from the Institute of Certified Records Managers and also serve as Chapter Board Members for the Association of Records Managers and Administrators, International (ARMA). Bruce G. Meier, the consultant that would be assigned to lead this project, provides educational workshops and seminars to state, local and regional government entities and private industry professional associations and organizations.

RCS has performed, or is in the process of performing, similar records management update projects for the Cities of Irwindale, Pinole, Vallejo, Emeryville, Napa, and San Rafael. All agency references staff spoke with provided extremely positive feedback about the process of working with Mr. Meier, customization of the programs to their agencies’ needs and preferences, and satisfaction with the results.

The proposal submitted by RCS consists of three phases that will involve staff from all City departments. The proposal is summarized as follows:
 Phase 1 – Discovery, Assessment, Gap Analysis, and Records Classification System (estimated time 16 to 18 weeks)
In the first phase, the consultant will review the City’s current policies and develop a project timeline. There will be a kick–off meeting with key City staff (the project team), and then RCS will separately hold meetings with representatives from each department who are familiar with the department’s records to review and inspect active and inactive files including paper, electronic, and microfilm; perform on–site reviews of currently available storage space and equipment; and determine adherence to current records retention schedules and records management policies.

From these meetings and reviews, RCS will assess the most appropriate methods and procedures for each department and record type. RCS will then prepare a report summarizing the result of the review of the City’s records and provide a presentation of findings and gap analysis to the project team.
 Phase 2 – Records Information and Management Policies/Procedures & Retention Schedule (estimated time 8 to 10 weeks)
During Phase 2, RCS will develop a comprehensive proposal for a Records Management Program customized to the City’s records and staff preferences to maximize use of the City’s available on–site storage space, including an updated Records Retention Schedule, policies and procedures for records and information management based on best practices, and recommendations for physical and digital records storage and a centralized, all–inclusive system for quickly navigating and locating records.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 65 of 179  Phase 3 – Records Management Program Implementation Strategy & Training (estimated time 7 to 9 weeks)
In the final phase, RCS will develop and provide training and procedure guides to staff for Records Management Program maintenance and preservation—including guidance for the City Council’s future adoption of a policy that complies with the state’s Trustworthy Electronic Document requirements to convert paper records to electronic format, disposing of the paper versions permanently, and designating the electronic copy as the new original record, which will be essential for “going paperless” with any forms or documents that originated on paper.

FISCAL IMPACT: Funding in the amount of $50,000 is included in the City’s Fiscal Year 2022–23 Budget in the City Clerk program for an electronic records management system consultant. The total contract amount is $48,945; however, due to the extensive review and analysis process and multiple meetings required with various departments during each phase, the project timeline is anticipated to exceed one year. It is therefore likely that not all of the budgeted funds will be expended before the end of the current fiscal year and will carry over to Fiscal Year 2023–24. The contract term would end June 30, 2024.

RECOMMENDATION: Staff recommends that the City Council approve Agreement No. 22–93 with Records Control Services, Inc. for records management consulting services (inventory assessment, updated retention policy, and strategic roadmap).

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 66 of 179 Agreement No. 22-93

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CITY OF MONTCLAIR

AGREEMENT FOR CONSULTANT SERVICES

RECORDS MANAGEMENT CONSULTING SERVICES
THIS AGREEMENT is made and effective as of on September 19, 2022, between the City of Montclair, a municipal corporation ("City") and Records Control Services, Inc., a California corporation ("Consultant"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:

1. TERM
This Agreement shall commence on September 19, 2022, and shall remain and continue in effect for a period of 22 months until tasks described herein are completed, but in no event later than June 30, 2024, unless sooner terminated pursuant to the provisions of this Agreement.

3. PERFORMANCE
Consultant shall at all times faithfully, and competently perform all tasks described herein. Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Consultant hereunder in meeting its obligations under this Agreement.

Consultant shall have the duty to prepare any design documents free from defects.

4. CITY MANAGEMENT
City’s City Manager shall represent City in all matters pertaining to the administration of this Agreement and shall be authorized to act on City’s behalf and to execute all necessary documents which enlarge the Tasks to be Performed or change Consultant’s compensation, subject to Section 5 hereof.

5. PAYMENT
(a) The City agrees to pay Consultant in accordance with the payment rates and terms and the schedule of payment as set forth in Exhibit B, attached hereto and incorporated herein by this reference as though set forth in full, based upon actual time spent on the above tasks. This amount shall not exceed $48,945.00 for the total term of the Agreement unless additional payment is approved as provided in this Agreement.

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(b) Consultant shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the City Manager. Consultant shall be compensated for any additional services in the amounts and in the manner as agreed to by City Manager and Consultant at the time City’s written authorization is given to Consultant for the performance of said services.

Said invoices shall detail all costs, rates and hours for individual tasks. Invoices shall be submitted on or about the first business day of each month, or as soon thereafter as practical, for services provided in the previous month. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If the City disputes any of the Consultant’s fees, it shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice. (d) Consultant agrees that, in no event shall City be required to pay to Consultant any sum in excess of ninety-five percent (95%) of the maximum payable hereunder prior to receipt by City of all final documents, together with all supplemental technical documents, as described herein acceptable in form and content to City. Final payments shall be made no later than sixty (60) days after presentation of final documents and acceptance thereof by City.

6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE (a) The City may at any time, for any reason, with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon the Consultant at least thirty (30) days prior written notice. Upon receipt of said notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise. If the City suspends or terminates a portion of this Agreement, such suspension or termination shall not make void or invalidate the remainder of this Agreement.
(b) In the event this Agreement is terminated pursuant to this Section, the City shall pay to Consultant on a pro-rata basis the actual value of the work performed up to the time of termination, provided that the work performed is in compliance with this Agreement. Upon termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to the City pursuant to Section 5(c).

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Consultant to make progress in the performance of work hereunder arises out of causes beyond the Consultant’s control, and to the extent the default is without fault or negligence of the Consultant, it shall not be considered a default. (b) If the City Manager or his/her delegate determines that the Consultant is in default in the performance of any of the terms or conditions of this Agreement, he/she shall cause to be served upon the Consultant a written notice of the default. The Consultant shall have ten (10) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event that the Consultant fails to cure its default within such period of time, the City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.

8. OWNERSHIP OF DOCUMENTS
(a) Consultant shall maintain complete and accurate records with respect to billed time, sales, costs, expenses, receipts and other such information required by City that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to the representatives of City or its designees at reasonable times to such books and records; shall give City the right to examine and audit said books and records; shall permit City to make transcripts therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment.
(b) Upon completion of, or in the event of termination or suspension of this Agreement, all original documents, claims, applications, computer files, notes, and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the City and may be used, reused, or otherwise disposed of by the City without the permission of the Consultant. Any reuse or modification of the work product without the prior written consent of Consultant will be at the sole risk of the City. With respect to computer files, Consultant shall make available to the City, at the Consultant’s office and upon reasonable written request by the City, the necessary computer software and hardware for purposes of accessing, compiling, transferring and printing computer files.

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matters threatened or presently asserted, including but not limited to all legal fees, costs of defense and litigation expenses (including legal fees, expert fees and any other costs or fees, including those of adverse parties imposed on or sought against the Indemnified Parties), arising directly or indirectly out of any liability or claim of loss or liability for personal injury, bodily injury to persons, contractual liability, errors or omissions, breach, failure to perform, damage to or loss of property, or any other loss, damage, injury or other claim of any kind or nature arising out of the work to be performed by Consultant herein, caused by or arising out of the negligent acts or omissions, or intentional misconduct of Consultant, including its subcontractors, subconsultants, employees, agents, and other persons or entities performing work for Consultant.
(b) Contractual Indemnity. To the fullest extent permitted under California law, Consultant shall contractually indemnify, defend and hold harmless the Indemnified Parties from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses, amounts for good faith settlement, or costs of any kind, whether actual, alleged or threatened, including attorney’s fees and costs, court costs, interest, defense costs, and expert witness fees and costs), arising out of or related to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to Consultant’s officers, agents, representative, employees, independent contractors, subcontractors, subconsultants, or affiliated or related entities and/or its or their employees, agents and representatives, caused by or arising out of all negligent acts or omissions, or intentional misconduct of Consultant, including its subcontractors, subconsultants, employees, agents and other persons or entities performing work for Consultant. Indemnification shall include any claim that Consultant, or Consultant’s employees or agents, are or may be considered and treated as employees of the City or are entitled to any employee benefits from City including but not limited to those available under Public Employees Retirement Law.

The obligation to indemnify, defend and hold harmless the Indemnified Parties shall apply to all liability as defined above regardless of whether the Indemnified Parties were or are alleged to have been negligent, except that it shall not apply to claims arising from the sole negligence or willful intentional misconduct of the Indemnified Parties.

Consultant’s obligation to defend the Indemnified Parties is not contingent upon there being an acknowledgement of or determination of the merit of any claims, liability, demands, causes of action, suits, losses, expenses, errors, omissions and/or costs. (c) Subcontractors/Subconsultants and Indemnification. Consultant agrees to and shall obtain executed indemnity agreements in favor of the Indemnified Parties with provisions identical to those set forth from each and every Subcontractor, Sub consultant, or other person or entity involved by, for, with, or on behalf of Consultant in the performance of any aspect of this Agreement. In the event Consultant fails to obtain such indemnity obligations, Consultant shall be fully responsible for each and every Subcontractor, Subconsultant or other person or entity in terms of defense, indemnity and hold harmless obligations in favor of the Indemnified Parties as set forth above.

This obligation to indemnify and defend the Indemnified Parties is binding on the successors, assigns, or heirs of Consultant and shall survive the full performance or termination of this Agreement. These indemnification provisions are independent of and MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 70 of 179 Agreement No. 22-93

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shall not in any way be limited or superseded by the insurance requirements and insurance-related provisions of this Agreement.
(d) City Lost or Damaged Property – Theft. Consultant further agrees to pay or cause to be paid to the Indemnified Parties’ benefit, any and all damages, fines, penalties, and loss or theft of property of the City arising out of or related in any way to the negligent acts or omissions or intentional misconduct of Consultant or of Consultant’s officers, agents, representatives, employees, independent contractors, subcontractors or affiliated or related entities and/or its or their employees, agents and representatives, whether such actions, omissions to act, negligence or intentional conduct is or was authorized by this Agreement or not. City assumes no responsibility whatsoever for any property placed on the premises of City. Consultant further agrees to waive all rights of subrogation against the Indemnified Parties. (e) Non-Waiver and Non-Exhaustion of City’s Further Rights and Remedies.

No aspect of this provision shall in any way limit or effect the rights of the Indemnified Parties against the Consultant under the terms of this Agreement or otherwise. The indemnification provisions shall apply regardless of whether this Agreement is executed after Consultant begins the work and shall extend to claims arising after this Agreement is performed or terminated, including a dispute as to the termination of Consultant. The indemnity obligations of Consultant shall continue until it is determined by final judgment that the claim against the City and any Indemnified Parties is determined by final judgment and after exhaustion of any rights of appeal. Further, no aspect of this provision shall impact the City’s rights to contribution from Consultant, or for the City to dispute Consultant’s refusal to defend and indemnify City. (f) Limitations on Scope of Indemnity. Notwithstanding the foregoing, Consultant shall not be responsible for indemnification for claims or losses caused by the sole negligence or intentional wrongdoing of Indemnified Parties. Further, the indemnity provided shall be interpreted as broadly as permitted under California law and as to agreements between parties and shall if required be reformed to be consistent with those laws to protect and save this provision for the protection of the Indemnified Parties.
(g) The obligations of Consultant under this or any other provision of this Agreement shall not be limited by the provisions of any workers’ compensation act or similar act. The Consultant expressly waives any statutory immunity under such statutes or laws as to the Indemnified Parties. The Consultant’s indemnity obligation set forth in this Section 9 shall not be limited by the limits of any policies of insurance required or provided by the Consultant pursuant to this Agreement. (h) The Consultant’s covenant under this Section 9 shall survive the expiration or termination of this Agreement.

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10. INSURANCE
The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
(a) Types of Required Coverages
Without limiting the indemnity provisions of the Contract, the Consultant shall procure and maintain in full force and effect during the term of the Contract, the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.
(1) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office “occurrence” form CG 00 01, including products and completed operations, property damage, bodily injury, and personal & advertising injury with limits no less than $2,000,000 per occurrence, and $4,000,000 aggregate total bodily injury, personal injury, and property damage.
(2) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering “Any Auto” (Symbol 1), including owned, non-owned and hired autos, or the exact equivalent, with minimum limits of $500,000 for bodily injury and property damage, each accident. If Contractor owns no vehicles, auto liability coverage may be provided by means of a non-owned and hired auto endorsement to the general liability policy. Automobile liability insurance and endorsements shall be kept in force at all times during the performance of this Agreement.
(3) Workers’ Compensation: Workers’ Compensation Insurance, as required by the State of California and Employer’s Liability Insurance with a limit of not less than $1,000,000 each accident for bodily injury and $1,000,000 each employee for bodily injury by disease. (4) Professional Liability: Professional Liability insurance with limit of not less than $1,000,000 each claim. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusion that may potentially affect the work to be performed.
(b) Endorsements
Insurance policies shall not be in compliance if they include any limiting provision or endorsement. The insurance policies shall contain, or be endorsed to contain, the following provisions:
(1) Commercial General Liability
Additional Insured: The City, its elected officials, officers, employees, volunteers, boards, agents and representatives shall be additional MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 72 of 179 Agreement No. 22-93

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insureds with regard to liability and defense of suits or claims arising out of the work or operations performed by or on behalf of the Consultant including materials, parts or equipment furnished in connection with such work or operations. Coverage for the additional insureds shall apply to the fullest extent permitted by law.

Additional Insured Endorsements shall not:

1. Be limited to “Ongoing Operations”

2. Exclude “Contractual Liability

3. Restrict coverage to the “Sole” liability of contractor

4. Exclude “Third-Party-Over Actions”

5. Contain any other exclusion contrary to the Agreement Additional Insured Endorsements shall be at least as broad as ISO Forms CG 20 10 11 85; or CG 20 and 10 and CG 2037.

Primary Insurance: This insurance shall be primary and any other insurance, whether primary, excess, umbrella or contingent insurance, including deductible, or self-insurance available to the insureds added by endorsement, shall be in excess of, and shall not contribute with, this insurance. Coverage shall be at least as broad as ISO CG 20 01 04 13. (2) Auto Liability
Additional Insured: The City, its elected officials, officers, employees, volunteers, boards, agents, and representatives shall be additional insureds with regard to liability and defense of suits or claims arising out of the work or operations performed by or on behalf of the Contractor.

Primary Insurance: This insurance shall be primary and any other insurance whether primary, excess, umbrella or contingent insurance, including deductible, or self-insurance available to the insureds added by endorsement shall be in excess of and shall not contribute with this insurance.
(3) Workers’ Compensation
Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the indemnified parties. (c) Notice of Cancellation
Required insurance policies shall not be cancelled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (d) Waiver of Subrogation
Required insurance coverages shall not prohibit Consultant from waiving the right of subrogation prior to a loss. Consultant shall waive all rights of subrogation MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 73 of 179 Agreement No. 22-93

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against the indemnified parties and policies shall contain or be endorsed to contain such a provision. This provision applies regardless of whether the City has received a waiver of subrogation endorsement from the insurer.
(e) Evidence of Insurance
All policies, endorsements, certificates, and/or binders shall be subject to approval by the City as to form and content. These requirements are subject to amendment or waiver only if so approved in writing by the City. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. (f) Deductible or Self-Insured Retention
Any deductible or self-insured retention must be approved in writing by the City and shall protect the indemnified parties in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention. The City may require the Consultant to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the Consultant or the City.
(g) Contractual Liability/Insurance Obligations
The coverage provided shall apply to the obligations assumed by the Consultant under the indemnity provisions of this Agreement. The insurance obligations under this Agreement shall be: (1) all the insurance coverage and/or limits carried by or available to the Consultant; or (2) the minimum insurance coverage requirements and/or limits shown in this Agreement; whichever is greater. Any insurance proceeds in excess of or broader than the minimum required coverage and/or minimum required limits, which are applicable to a given loss, shall be available to the City. No representation is made that the minimum insurance requirements of this Agreement are sufficient to cover the obligations of the Consultant under this Agreement. (h) Failure to Maintain Coverage
Consultant agrees to suspend and cease all operations hereunder during such period of time as the required insurance coverage is not in effect and evidence of insurance has not been furnished to the City. The City shall have the right to withhold any payment due Consultant until Consultant has fully complied with the insurance provisions of this Contract. In addition, the City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may take out the necessary insurance and pay, at Consultant’s expense, the premium thereon.

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In the event that the Consultant’s operations are suspended for failure to maintain required insurance coverage, the Consultant shall not be entitled to an extension of time for completion of the Work because of production lost during suspension.
(i) Acceptability of Insurers
Each such policy shall be from a company or companies with a current A.M. Best’s rating of no less than A:VII and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. Any other rating must be approved in writing in accordance with the City. (j) Claims Made Policies
If coverage is written on a claims-made basis, the retroactive date on such insurance and all subsequent insurance shall coincide or precede the effective date of the initial Consultant’s Agreement with the City and continuous coverage shall be maintained or an extended reporting period shall be exercised for a period of at least five (5) years from termination or expiration of this Agreement. (k) Insurance for Subcontractors
Consultant shall be responsible for causing Subcontractors/ Subconsultants to purchase the same types and limits of insurance in compliance with the terms of this Agreement, including adding the City as an Additional Insured, providing Primary and Non-Contributory coverage and Waiver of Subrogation to the Subcontractors’/Subconsultant’s policies. The Commercial General Liability Additional Insured Endorsement shall be on a form at least as board as CG 20 38 04 13.

Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the City.

Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. Consultant shall be solely responsible and hold the City harmless for all matters relating to the payment of Consultant’s employees, including compliance with Social Security withholdings and all other regulations governing such matters.
(b) No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement City shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for City. City shall not be liable for MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 75 of 179 Agreement No. 22-93

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compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder.

Violation of this Section shall be a material breach of this Agreement entitling the City to any and all remedies at law or in equity.

15. RELEASE OF INFORMATION/CONFLICTS OF INTEREST
(a) All information gained by Consultant in performance of this Agreement shall be considered confidential and shall not be released by Consultant without City’s prior written authorization. Consultant, its officers, employees, agents, or subconsultants, shall not without written authorization from the City Manager or unless requested by the City Attorney, voluntarily provide declarations, letters of support, testimony at depositions, responses to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena. (b) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requests for admissions, or other discovery request, court order, or subpoena from any person or MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 76 of 179 Agreement No. 22-93

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party regarding this Agreement and the work performed thereunder or with respect to any project or property located within the City. City retains the right, but has no obligation, to represent Consultant and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to cooperate fully with City and to provide the opportunity to review any response to discovery requests provided by Consultant.

However, City’s right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
(c) Consultant shall comply with all applicable federal, state and local Conflict of Interest laws, including the Political Reform Act (California Government Code, Section 81000, et. seq.) and California Government Code, Section 1090, et. seq.

Consultant covenants that neither he/she nor any officer or principal of their firm have any interest in, or shall acquire any interest, directly or indirectly, which will conflict in any manner or degree with the performance of their services hereunder. Consultant further covenants that in the performance of this Agreement, no person having such interest shall be employed by them as an officer, employee, agent or subconsultant.

Consultant further covenants that Consultant has not contracted with nor is performing any services, directly or indirectly, with any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the City or the study area and further covenants and agrees that Consultant and/or its subconsultants shall provide no service or enter into any agreement or agreements with a/any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the City or the study area prior to the completion of the work under this Agreement. Further, Consultant covenants not to give or receive any compensation, monetary or otherwise, to or from the ultimate vendor(s) of services to the City as a result of the performance of this Agreement, or the services that may be procured by the City as a result of the recommendations made by the Consultant. The Consultant’s covenant under this Section shall survive the termination of this Agreement.

To City: Andrea Myrick, City Clerk
City of Montclair
5111 Benito Street
Montclair, CA 91763
[email protected]
MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 77 of 179 Agreement No. 22-93

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To Consultant: Bruce G. Meier, President/CEO
Records Control Services, Inc.
15 Cornwall Court
Oakland, CA 94611
[email protected]

17. ASSIGNMENT AND SUBCONTRACTING
The Consultant shall not assign any of its rights or delegate any of its duties under this Agreement, either in whole or in part, nor any monies due hereunder, without prior written consent of the City. The City’s consent to an assignment of rights under this Agreement shall not release the Consultant from any of its obligations or alter any of its obligations to be performed under this Agreement. Any attempt at assignment or delegation by the Consultant in violation of this Section 17 shall be void and of no legal effect and shall constitute grounds to terminate this Agreement for cause. The Consultant shall not subcontract any performance required under this Agreement without the City’s prior written consent.

21. CONTENTS OF REQUEST FOR PROPOSALS
Consultant is bound by the contents of City’s Request for Proposal, Exhibit "C" hereto and incorporated herein by this reference. In the event of conflict, the requirements of City’s Request for Proposals and this Agreement shall take precedence over those contained in the Consultant’s proposals.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 78 of 179 Agreement No. 22-93

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22. CONFIDENTIALITY
Information and materials obtained by the Consultant from City during the performance of this Agreement shall be treated as strictly confidential and shall not be used by the Consultant for any purpose other than the performance of this Agreement.

Consultant’s covenant under this Section shall survive the expiration or termination of this Agreement.

23. DISCRIMINATION
The Consultant agrees that no person shall be excluded from employment in the performance of this Agreement on grounds of race, creed, color, sex, age, marital status, or place of national origin. In this connection, the Consultant agrees to comply with all County, State and Federal laws relating to equal employment opportunity rights.

24. EFFECT OF PARTIAL INVALIDITY
If any term or provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement and any application of the terms shall remain valid and enforceable under this Agreement or California law.

25. CLAIMS AGAINST CITY
Consultant must comply with the claim procedures set forth in Government Code sections 900, et. seq., and/or Montclair Municipal Code, Chapter 1.16, as applicable, prior to filing any lawsuit against the City. Such claims and any subsequent lawsuit based upon the claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Contractor. If no such claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Contractor shall be barred from bringing and maintaining a valid lawsuit against the City.

26. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant warrants and represents that he/she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder.

27. NO THIRD PARTY BENEFICIARIES
This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.

28. COST OF LITIGATION
If any legal action is necessary to enforce any provision of this Agreement or for damages by reason of an alleged breach of any provisions of this Agreement (whether in contract, tort or both), the prevailing Party shall be entitled to receive from the losing Party all attorneys’ fees, costs and expenses in such amount as the courts may determine to be reasonable. In awarding the cost of litigation, the court shall not be bound by any court MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 79 of 179 Agreement No. 22-93

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fee schedule, but shall, if it is in the interest of justice to do so, award the full amount of costs, expenses and attorneys’ fees paid or incurred in good faith.

29. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant warrants and represents that he/she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder.

30. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be the original, and all of which together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.

CITY OF MONTCLAIR CONSULTANT
By: By:

Javier John Dutrey Bruce G. Meier, CRM
Mayor President/CEO, Records Control
Services
Attest:

By:

Andrea M. Myrick
City Clerk
Approved as to Form:

By:

Diane E. Robbins
City Attorney
MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 80 of 179 Records Control Services, Inc.
™ trademarked proprietary information by Records Control Services, Inc. All rights reserved.

Work Plan & Proposal
Introduction
This report contains recommendations and proposals for a records improvement program, allowing the City to refine best records management and information governance practices.

Detailed tasks are included in the proposal that follows this section.

Purpose
The purpose of this proposal is to provide the City with an analysis and report of current records management practices, designing and researching Records Retention Schedules for managing physical and electronic documents, policies and procedures for program management, and recommendations for an information governance roadmap to allow highly efficient information management and disposal with the City.

Project Scope
The program provides records retention suggestions for identified records managed and stored within the City’s target departments:
 Administration
o Administrative Services
o City Attorney
o City Council
o City Clerk
o City Manager
o Human Resources
 Economic Development & Housing
 Human Services
 Finance
 Information Technology
 Community Development
o Planning
o Building
o Code Enforcement
o Fire Prevention Bureau
 Police & Fire
 Public Works
General Recommendations
The goal of a comprehensive records management program is to control the creation, acquisition, processing, maintenance, storage and final disposition of all recorded information, regardless of form or media, handled during normal business practices.

Implementation of such a program would result in significant savings for the City through:
 Safe, highly efficient storage and retention of all records in accordance with Federal, State and Local regulations.
 Rapid access to all active, semi-active and inactive records stored in offices or off-site facilities.
 Immediate reduction of misfiled and lost information.  Cost effective use of prime office and storage space.  Timely disposal of obsolete records through approved retention schedules.  Protection of vital records from natural or man-made disasters.

RCS recommends a comprehensive Records Management Policy be adopted by the City Council, including a records retention component, to form the foundation of a legally acceptable Records and Information Management Program (RIM) in compliance with GARP® guidelines. A full RIM program should be implemented in several segments, including:

1. Inactive records storage system.

2. Active files management with a uniform filing system.

3. Records retention management with approved retention periods and schedules.

4. Information governance evaluation and needs assessment plan.

5. Electronic document management and tracking systems.

6. A Vital Records Protection and Disaster Recovery Program.

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Records Control Services, Inc.
™ trademarked proprietary information by Records Control Services, Inc. All rights reserved.

This proposal addresses the policy development, records retention management components and information governance evaluation for a comprehensive RIM Program. Detailed proposals for other segments can be submitted by RCS upon request of the City.

Approach
This proposal is separated into phases. Phases 1 and 2 can be implemented concurrently after the interview process is completed and the uniform classification index is created. Phase 3 must be implemented in sequence.

Work will be completed both at the City’s facilities and RCS’s Oakland offices. RCS’s principal consultant will visit City facilities for initial interviews and records evaluation, and reviewing the retention schedule structure, retention periods and policy suggestions, as needed.

Proposal for Records Management Consulting Services
This proposal presents the City of Montclair (City) with project tasks and time estimates for evaluating and assessing current records management practices throughout the City, creation of a uniform record series classification index, designing and researching records retention schedules, and recommendations for an information governance roadmap for future records management operations. Implementation of this program, in total, will provide a highly efficient management and disposition system for designated records.

The resulting tools will allow the City to improve best records management and information governance practices, and Generally Accepted Recordkeeping Principals®1.

Phase 1 – Discovery, Assessment, Gap Analysis & Records Classification System Phase Tasks

1. Introduce the program to City staff and management.

2. Designate Department Liaisons.

3. Develop a work plan and timeline estimate for the discovery and assessment process.

4. Evaluate physical records storage and management systems:
a. Interview the Department Liaisons to determine record series (types of records) maintained in each division.
b. Analyze active and inactive physical filing systems, access activities and quantities.
c. Review physical file listings, taxonomy and/or classification guides, if any. d. Review box and file listings and databases provided by Corodata. e. Determine document creation, routing, and final physical storage locations. f. Review audio, video and microfilm storage and access activities, if any. g. Determine adherence to the current records retention schedules, filing systems, and records management policies and procedures.

5. Review document management systems and information storage technology. a. Evaluate electronic document activity and accessibility requirements on shared server volumes.
b. Evaluate file structure, holdings, templates and metadata used in Laserfiche. c. Review other image and/or electronic document storage systems, where used. d. Evaluate current document scanning processes and acquisition equipment. e. Review use of process management software systems.
f. Review use of e-mail management software systems.
g. Determine adherence to the current records retention schedules and records management policies and procedures.
1 ® Generally Accepted Recordkeeping Principals & GARP are trademarked by the Association of Records Managers and Administrators, International.

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Records Control Services, Inc.
™ trademarked proprietary information by Records Control Services, Inc. All rights reserved.

6. Evaluate physical and electronic document repositories for duplication outside of the Office of Record (managing department).

7. Determine most efficient storage medium for official records in each record series.

8. Create a function-based classification index of record series:
a. Organize records series by City function, and divisions or groups within each function.
b. Hierarchically assign identification codes to record series. c. Integrate special series aspects into the index, where needed. d. Assign preferred storage medium to record series.
e. Create a section for records regularly maintained within all City departments. f. Submit to and review the draft index with Department Liaisons and/or management.

9. Evaluate the City’s retention schedules for critical, important and useful updates.

10. Prepare a comprehensive report outlining results of the interviews and findings.

11. Present findings and a gap analysis to the Key Stakeholders.

To best evaluate current records storage systems and repositories, the Project Team will designate a contact person, or persons, within each department and division as the Records Coordinator. These staff members should be core users and/or managers of their department’s paper and electronic documents.

RCS will develop a work plan and timeline for the evaluation process. Interview schedules and assessment timelines will depend on availability of Department Liaisons and staff, and RCS will coordinate with the Project Manager to schedule meetings.

RCS will meet with designated Department Liaisons to discuss records series maintained within their departments and evaluate document acquisition and access activity for the associated records. RCS will review all media storage types, including hardcopy records, audio and video recordings, microforms, electronic and any other document storage repositories.

Using the interview and evaluation data, RCS will create a hierarchical listing of records series organized by department and divisions or activities within each department. RCS will review the draft index with the Department Liaisons and integrate specific attributes, including confidentiality, vitality and/or historical nature, where necessary.

The resulting uniform index structure, or Uniform Functional Index of Records Series Taxonomy™ (UFIRST™ Index), becomes the record retention schedule format and can be used to quickly identify records in both physical and electronic storage systems.

RCS will prepare a report summarizing the results of the interviews, including:
 Physical filing systems properties.
 Volumes of physical active and inactive records maintained in repositories.  An evaluation of physical file inventories and databases, where available.  An evaluation of Laserfiche and any other electronic record repositories, where available.  Compliance with current record retention schedules and records management policies and procedures.
 An analysis of retention schedule updates to meet current legal and business requirements.
 Areas of potential record duplication.
 Work plan and recommendations for improvements to evaluated systems.

Based on the analysis, RCS will provide a brief presentation to the Key Stakeholders on target areas for improvement and compliance with retention schedules within the departments.

RCS requires access to non-confidential areas of the City’s Laserfiche electronic document management software, e-mail systems, shared server volumes, process management software

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Records Control Services, Inc.
™ trademarked proprietary information by Records Control Services, Inc. All rights reserved. systems and other sources of electronic document storage using secure company laptops connected to the City’s network for the technology evaluation project tasks.

Phase Results
Implementation of this phase, in total, will provide the City with:
 A workplan and timeline for project implementation.
 A comprehensive evaluation and report of document acquisition, storage repositories and media formats.
 A uniform, function-based record series index to classify physical and electronic records.  A presentation of findings and a gap analysis to the project’s Key Stakeholders.

Phase Duration Estimates
Depending upon staff availability and current RCS client obligations, this phase can be completed in approximately 16 to 18 weeks after initiation. Availability of City staff for initial interviews and schedule reviews is essential to phase completion within RCS time estimates.

Phase 2 – RIM Policies/Procedures & Retention Schedules Phase Tasks

1. Review and evaluate the City’s current records management policies and procedures.

2. Recommend improvements and additional components to provide a comprehensive, clear and concise set of policies and procedures.

3. Review policies and procedures with the Project Team, modify as needed.

4. Develop updated records retention schedules:
a. Research governmental and regulatory body minimum required retention periods. b. Assign suggested retention periods and summary descriptions of legal citations to each listed record series in the UFIRST™ Index.
c. Submit to and review updated retention schedules with Department Liaisons and/or management.
d. Integrate departmental operating retention requirements and administrative retention decisions into schedules, where needed.
e. Modify special series aspects into the retention schedules, where needed. f. Submit retention schedules to Department Liaisons and management for final review and approval.
g. Review final draft retention schedules and policy suggestions with the Project Team.
h. Submit final draft retention schedules, in electronic format, for the City’s legal counsel to review.

RCS will review the City’s current records management related policies and procedures and make recommendations for improvements to address all essential aspects of the program. The resulting policy and procedure modifications are reviewed with the Project Team prior to approval by the City Council or executive management.

Retention research then is performed on the records series identified in Phase 1 to determine minimum legal retention requirements. Each records series entry will include a summary of the legal citation(s) associated with the series.

Citations summaries will include one or more of the following:
 Stated required retention period.
 Target document type, where available.
 Trigger action (i.e., completion of project, date of loss, meeting date, etc.) RCS will review the retention schedules with the Department Liaisons and modify specific attributes, where needed. Administrative decisions extending or modifying the minimum

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Records Control Services, Inc.
™ trademarked proprietary information by Records Control Services, Inc. All rights reserved. requirements are added to the citations, where needed, to set precedence for record destruction in the normal course of business.

RCS will review the draft approved retention schedules with the Project Team prior to submission to legal counsel for final review. The City is responsible for direct review with legal counsel, and RCS will modify the schedules after the review, as needed.

The City shall have the final retention schedules approved by the City Council. The resulting approved retention schedules will address all City records and directly correlate retention periods with record series, regardless of physical or electronic format.

Phase Results
Implementation of the program, in total, will provide the City with:
 A comprehensive set of records and information management policies and procedures.  Retention period suggestions for each record series, based on current regulations, legal citations, and industry recommendations.
 Department approved records retention schedules addressing all physical and electronic records.

Phase Duration Estimates
Depending upon staff availability and current RCS client obligations, this phase can be completed in approximately 8 to 10 weeks after initiation. Availability of department staff for schedule reviews is essential to phase completion within RCS time estimates.

Phase 3 – Records Management Program Implementation Strategy & Training Phase Tasks

1. Develop an Information Governance roadmap for future records management program improvements.

2. Present highlights of the roadmap to the Project Team.

3. Develop a Records Retention Program reference guide for Department Liaisons, staff, and management.

4. Review reference guide with the Project Team, modify as needed.

5. Provide training sessions to the Department Liaisons and staff.

6. Submit sample Records Transfer Notice and Destruction Approval forms to the Project Team, modify as needed.

RCS will prepare an information governance roadmap with recommendations to help guide the City in future records and information management improvements. Based on the City’s request, the roadmap will include, but is not limited to, the following components:
 Work plan and schedule for recommendations and strategies, including milestones and phases.
 Level of effort and cost estimates, with options, for successful implementation and ongoing (post-implementation) of records management program.  Strategies to maintain a modern, functional, and flexible records program.  Recommendations for records storage, maintenance, and management tools, including:
o Furniture and equipment for efficient records storage. o Hardware and software for maintaining physical records. o Additional records management tools available to the City.  Available retention processes that are automated and applicable across various record generating processes and systems, including costs and strategies for implementing automated processes across different enterprise systems.

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Records Control Services, Inc.
™ trademarked proprietary information by Records Control Services, Inc. All rights reserved.  Incorporation of data privacy, data mapping, data security classification, electronic document retention, management of paper documents, e-mail archival and unstructured data control.
 A reduction of impacts to existing and future document users and resources, including processes that access, use, generate, store, or destroy documents (including minimizing new requirements, responsibilities and processes related to managing documents).  Recommendations on maximizing the availability and accessibility of documents for business and transparency purposes.
 Recommendations on minimizing the long-term costs associated with managing documents of all forms, including costs associated with onsite and offsite document filing, storing, and retrieving, as well as storing and backing up electronic documents.  Recommendations on minimizing City liability associated with retaining and destroying documents and complying with applicable regulations and laws.  Recommendations on minimizing the environmental impacts associated with hardcopy and electronic documents.
 Document destruction, transference, and conversion guidelines.  Identifying space (internal or external) and equipment necessary for filing records.  Develop benefit objectives offering sufficient information about the benefits of executing the provided roadmap.
 Recommendations for change management, training, and other ongoing program management activities such as self-auditing and future updates.  Additional recommendations as needed.

RCS will prepare a presentation with highlights of the draft roadmap with the Project Team upon completion.

Based on the final records management policy, RCS will develop a set of procedures for working with the approved retention schedules and create a how-to reference booklet to distribute at training sessions. The booklet will include:
 Definitions of records management program terms
 Staff responsibilities
 General retention periods for certain administrative, transitory, reference and duplicate records.
 Procedures for analyzing records, determining retention periods, processing inactive records, and preparing records for destruction.
 Guidance and strategies for implementing the Information Governance roadmap.

The procedures and booklet are reviewed with the Project Team and modified, as needed, prior to in-house printing.

RCS will create a training presentation for the Department Liaisons, staff, and management based on the final policy, procedures, and the roadmap. After training, RCS will provide a sample Records Transfer Notice for processing inactive records, and a sample Destruction Approval Form for processing obsolete records.

Training will consist of up to 2 sessions based on staff availability. Depending upon the status of the current COVID-19 pandemic, training presentations may be completed either onsite or remotely.

Phase Results
Implementation of the program, in total, will provide the City with:
 Training and how-to guides for program maintenance.
 Department Liaisons trained in retention program terminology, policies, and operating procedures.

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Records Control Services, Inc.
™ trademarked proprietary information by Records Control Services, Inc. All rights reserved.  Guidance to comply with the State’s Trustworthy Electronic Document or Record Preservation requirements.
 Recommendations for future improvements to information governance practices and Generally Accepted Recordkeeping Principals®.

Phase Duration Estimates
Depending upon staff availability, City Council approvals and current RCS client obligations, this phase can be completed in approximately 7 to 9 weeks after initiation. Availability of department staff for training is essential to phase completion within RCS time estimates.

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Attachment 1 – Cost Proposal
For each task during the term of the Agreement, please submit the estimated hours and extended cost. Proposers must submit cost proposals for the complete scope of work. Each cost option shall include all possible direct and indirect costs, travel, insurance, overhead, labor, profit, rebates, contingent commissions, renewal commissions, service fees, and any other expenses.

The City reserves the right to add or remove services over the contract term. The City reserves the right to award the Service(s) listed on this solicitation “individually”, by “groups”, “all or none”, or by any other method as deemed in the best interest of the City.

Task Description Estimated Hours Cost
Discovery / Assessment of Existing
Records System and Procedures 126 $ 24,570.00
Updated Records Retention / Destruction
Policy 57.5 $ 11,212.50
Strategic Roadmap & Training 67.5 $ 13,162.50
TOTAL COSTS: $ 48,945.00
Please state the firm fixed hourly rates and list the position title for each project team member.

The hourly rates shall be firm for the base term of the contract. Rates shall be fully burdened and include all labor, taxes, profit, general and administrative expenses, overhead, and insurance incurred by the Consultant. The below rates will apply to all tasks, additional supplemental services or for updated services outside of the existing scope of services.

Position Title Fixed Hourly Rate
Principal Consultant $195.00/hour
(PLEASE READ AND MARK EACH CHECKBOX TO CONFIRM ACKNOWLEDGMENT AND

AGREEANCE WITH THE INDICATED STATEMENTS)
X
The Proposal Cost provided reflects all possible direct and indirect costs, travel, insurance, overhead, labor, profit, rebates, contingent commissions, renewal commissions, service fees, and any other expenses.

X The Proposal provided reflects any additional addendum(s) issued with respect to this RFP.

X Submittal of this proposal indicated we have reviewed the proposed written agreement and if selected, would accept all terms of the proposed agreement.

Records Control Services, Inc.

Company Name
15 Cornwall Court
Address
Oakland, California 94611
City, State, Zip Code
510-530-6033
Telephone
Company Type: Corporation
________________________ Bruce G. Meier, CRM, President/CEO Signed by Print Name Title

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Cost Breakdown
RCS Professional Fees & Labor include all costs for system development and implementation and anticipated travel to and from City offices. Implementation costs are billed according to the schedules listed below by phase.

Phase 1 – Discovery, Assessment & Gap Analysis
RCS Professional Fees and Labor: $ 24,570.00
Invoices for RCS Professional Fees and Labor will be submitted according to the following schedule:

Progress payment 1: $6,142.50 at Phase initiation
Progress payment 2: $6,142.50 upon completion of Phase Task 7 Progress payment 3: $6,142.50 upon completion of Phase Task 9 Progress payment 4: $6,142.50 upon completion of Phase Task 11 Phase 2 – RIM Policy/Procedures & Retention Schedules
RCS Professional Fees and Labor: $ 11,212.50
Invoices for RCS Professional Fees and Labor will be submitted according to the following schedule:

Progress payment 1: $3,812.25 at Phase initiation
Progress payment 2: $3,700.13 upon completion of Phase Task 4.b Progress payment 3: $3,700.13 upon completion of Phase Task 4.h Phase 4 – Information Governance Roadmap & Training
RCS Professional Fees and Labor: $ 13,162.50
Invoices for RCS Professional Fees and Labor will be submitted according to the following schedule:

Progress payment 1: $4,475.25 at Phase initiation
Progress payment 2: $4,343.63 upon completion of Phase Task 2 Progress payment 3: $4,343.63 upon completion of Phase Task 6 Fee & Payment Terms
 Unless otherwise noted, professional fees for each phase include all costs for labor and are firm for a period of 180 days from the date of this proposal.  Invoices will be due upon receipt by the City, and payment must be received by RCS within 30 days of the invoice date. If payment is not received within 30 days of the invoice date, the invoice will be resubmitted with a 2.5% finance charge and a $40.00 administrative fee added to the total invoice amount. Finance charges and administrative fees are compounded for each 30-day late period.
 On-demand contact time separate from this proposal will be billed at $195.00 per hour, in 15- minute minimum increments. RCS will notify the City prior to incurring any unrelated contact time and obtain approvals from City management or the designated project manager.  Travel expenses are included in the cost and are based on 12 workday visits to the City and include travel from and to RCS’s Oakland offices. Additional travel time will be billed separately as incurred upon request and approval of the City.  Project duration estimates depend upon City staff availability and current RCS client obligations. If project implementation is delayed due to availability of City staff, RCS reserves the right to modify payment schedules according to completed project tasks and/or delay timelines.

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CITY COUNCIL

AGENDA REPORT
DATE: SEPTEMBER 19, 2022
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 4
FILE I.D.: PRK025
DEPT.: ECONOMIC DEV.

PREPARER: M. FUENTES
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 22–94 WITH CRP/VP MONTCLAIR VILLAGE OWNER, LLC., FOR CONSTRUCTION AND DEDICATION OF PARKLAND,

SUBJECT TO ANY REVISIONS DEEMED NECESSARY BY THE CITY ATTORNEY REASON FOR CONSIDERATION: The City Council is requested to consider approval of Agreement No. 22–94, a Parkland Dedication and Construction Agreement with CRP/VP Montclair Village Owner, LLC concerning dedication and construction of a neighborhood public park that is required through the entitlement process to be developed as a part of the Village at Montclair project.

A copy of proposed Agreement No. 22–94 is included in the agenda packet for the City Council's review and consideration.

BACKGROUND: As the City Council is aware, the Village at Montclair is located within the boundaries of the North Montclair Downtown Specific Plan (NMDSP) at 5050 Arrow Highway.

The Planning Commission and City Council approved the mixed–use project in late 2020.

The mixed–use project will provide approximately 24,919 square feet of ground–level commercial lease space and 330 permanent apartment units in an urban–styled mixed– use community with onsite amenities, including walkable design features and a 0.22– acre neighborhood public square on 6.68 gross acres of land.

The NMDSP was adopted by the City Council on May 16, 2006 and amended in 2017.

The NMDSP encourages development following urban–style design patterns focused around travel nodes within proximity to commercial shopping opportunities and public transit. The NMDSP provides for public spaces including neighborhood squares, parks, plazas, and other minor public monuments. The development of a park for public use was called out in the NMDSP for the area being developed as the Village at Montclair.

Through the City's Conditions of Approval, the developer of the Village at Montclair, CRP/VP Montclair Village Owner, LLC., has been charged with the dedication of land and construction of the public park.

The most salient terms of the Parkland Dedication and Construction Agreement include the following provisions:
 The California Government Code and the Montclair Municipal Code require the dedication of land or payment of in–lieu fees to offset the impact of residential development on the parks and recreation needs of the community (Quimby Act provisions). According the City's Quimby Act provisions, the Village at Montclair is required to dedicate 431 square feet of parkland per unit and/or pay and in– lieu fee of $2,800 per unit. Therefore, for dedication purposes, the Village at Montclair Project would be required to provide approximately 3.27 acres of parkland. Notwithstanding the 3.27 acres required for dedication purposes, the MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 90 of 179 NMDSP provides a planning area of less than an acre for a neighborhood public park. For this reason, the developer would dedicate .31 acres for the construction of the park. The parkland has been dedicated on the final map for the project.

The dedication of .31 acres fulfills the park dedication obligation for only 31 units.

The parkland obligation for the 299 remaining units is $837,200, based upon the $2,800 per unit in–lieu fee.
 The developer is willing to construct the improvements and amenities needed to develop the park. As a result, the developer would be entitled to a credit against the payment of the remaining $837,200 of in–lieu fees. The developer is required to pay/deposit with the City the sum of $837,200 in satisfaction of required park in–lieu fees for the construction of the remaining 299 residential units within the Project. Alternatively, the developer may establish an irrevocable letter of credit or similar security instrument given as a “set–aside” or reserve agreement (“Security Instrument”) between the developer’s construction lender, develop and the City, in the amount of $837,200 to carry out design and construction of the park.
 The developer has presented a conceptual design for the park to City staff, The City would have the right to approve the final construction plans and design for the park and the final construction budget. All improvements in the park after construction would be presented to the City in a turnkey condition consistent with the NMDSP and City approvals.
 The developer is entitled to seek reimbursement in an amount equal to the costs incurred in the design, construction, and furnishing of facilities and equipment necessary for the City to accept and use the park. The following conditions would apply to reimbursable costs:

1. No credit would be given for items that would not have been incurred by the City, had the City designed and constructed the park.

2. No credit would be given for legal, insurance, security, or construction management costs or miscellaneous fees unrelated to direct design and construction costs.

3. Park design costs would be capped at 5 percent of the total construction costs.

4. No credit would be given for payment of any City permit fees or charges.

5. The amount of reimbursement would be capped at $837,200. Any costs exceeding that amount would be borne exclusively by the developer. Any unused balance of the $837,200 upon completion of the park would be paid to the City.
 Developer acknowledges that construction of the park is subject to requirement of California Labor Code Section 1720 et seq. and 1770 et seq. as well as the California Code of Regulations, Title 8, Section 1600 et seq., which requires the payment of prevailing wages and performance of other requirements of public works projects.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 91 of 179  The developer will construct the park and park improvements simultaneously with the construction of the first building for which building permits are issued.

Developer will pursue development and construction of the park diligently to completion. In no event shall certificates of occupancy for the final building be issued until the park has been completed
 The developer and the City agree that maintenance of the park and park facilities will be covered via creation of a new Community Facilities District No. 2022–1.  The developer will meet all appropriate insurance, indemnity, and hold harmless requirements.

FISCAL IMPACT: Approval of proposed Agreement No. 22–94 provides the City with a new public park as a community asset. Acquisition and development of a new park in this location would exceed $1 million if the City were to pursue such an action.

Maintenance of the park would become the responsibility of the City; however, costs related to maintenance and upkeep of the park would be covered by a proposed future Community Facilities District.

RECOMMENDATION: Staff recommends that the City Council approve Agreement No. 22–94 with CRP/VP Montclair Village Owner, LLC., for construction and dedication of parkland, subject to any revisions deemed necessary by the City Attorney.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 92 of 179

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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:

City of Montclair
City Clerk
5111 Benito Street
Montclair, California 91763
____________________________________________________________________________ [Free Recording Requested Pursuant to GC §6103]
AGREEMENT NO. 22-94

PARKLAND DEDICATION AND CONSTRUCTION AGREEMENT
[Village at Montclair: By CRP/VP Montclair Village Owner, LLC] THIS PARKLAND DEDICATION AND CONSTRUCTION AGREEMENT ("Parks Agreement"), dated as of ________________, 2022 for reference purposes only, is made and entered into by and between the CITY OF MONTCLAIR, a California municipal corporation ("City") and CRP/VP Montclair Village Owner, LLC, a Delaware limited liability company ("Owner"). City and Owner are sometimes collectively referred to in this Agreement as the “Parties” or individually as the “Party.” This Parks Agreement is made with reference to the following:

RECITALS:

A. Owner has submitted requests to City for approval of certain land use entitlement applications including a final tract map, Precise Plan of Design (PPD), and building height and setback variances (“Project Entitlements”) to construct approximately 24,919 square feet of ground level commercial lease space and 330 permanent apartment units in an urban-styled mixed-use community with on-site amenities, including walkable design features and a .31-acre neighborhood public square park (“Project”) on a 6.68 (gross)- acre parcel of land generally located on the north side of Arrow Highway and the terminus of Fremont Street (5040-5050 Arrow Highway) in the City of Montclair (“Subject Site”) within the boundaries of the North Montclair Specific Plan. The Subject Site is more particularly described in Exhibit “A” attached to this Parks Agreement and incorporated herein by reference.

B. The Project Entitlements were approved by the City Council of the City of Montclair on December 7, 2020 in accordance with Resolution No. 20-3285 and subject to the Conditions of Approval attached thereto.

C. The Subject Site was approved by the City Council in contemplation that the Project, including the proposed .31-acre park would be consistent with the North Montclair Specific Plan (“Specific Plan”) which encourages development following urban-style residential design patterns focused around travel nodes within close proximity to commercial shopping opportunities. In addition, the Specific Plan provides that sites need to be made available for the development of “neighborhood squares and parks” of sufficient size to accommodate modest playgrounds, dog-runs, or minor public monuments.

C. Condition Nos. 14(c) and 19 attached to Resolution No. 20-3285, approving the Project Entitlements, California Government Code, Section 66477, the City’s Quimby September 19
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provisions contained in Section 11.38.080 of the Montclair Municipal Code (“MMC”) and the City’s periodic adoption of land dedication and in lieu fee amounts (“Dedication & Fee Sheet”) require this Project to dedicate land and/or pay park in lieu fees to off-set the impacts of residential development on the park and recreation needs of the Project and the community. Section 11.38.030 of the MMC authorizes the City to require a combination of dedication and payment of in-lieu fees if the City determines that the combination would better serve the public.

D. According to the City’s Quimby provisions and the Fee & Dedication Sheet, the Project is required to dedicate approximately 431 square feet of parkland per unit and/or pay an in lieu fee of $2,800 per unit. Thus, the Project will be required to dedicate approximately 3.27 acres of total parkland, if only the dedication of land is required.

E. Notwithstanding the 3.27 acres of parkland required to be dedicated, the Specific Plan shows that this portion of the planning area requires an approximate .31 acre neighborhood park, since the City’s other existing parks can accommodate the parkland/recreation needs of the Project. For that reason, Owner is willing to dedicate land for construction of a .31 acre neighborhood park and pay park in lieu fees for the remainder of the Project’s parkland obligations. According to the Dedication & Fee Sheet, dedication of .31 acres of land fulfills the dedication obligations of 31 of the proposed 330 units within the Project (13,361 sq. ft. (.31 acres) divided by 431 sq. ft per unit required pursuant to Dedication & Fee Sheet = 31 units). Thus, Owner’s remaining parkland obligations consist of the payment of approximately $837,200 in in-lieu fees (Based upon $2,800 per unit x 299 units (330 units – 31 units)).

F. Owner is also willing to construct all improvements and amenities needed to fully develop a functioning .31-acre neighborhood park for the benefit of the future residents of the Project. As a result, Owner will be entitled to a credit against the payment of the remaining $837,200 in in-lieu fees for the Project in an amount representing the reasonable development costs for the construction of the neighborhood park in accordance with Government Code, Section 66477 (a)(9).

G. Notwithstanding Owner’s right to receive credit against the payment of park-in-lieu fees, Owner has agreed to that, in accordance with Condition No. 19 of the approved conditions of approval for the Project Entitlements, no credit/reimbursement shall be provided to Owner in excess of the amount of in-lieu fees that are otherwise so payable by Owner to the City as so provided.

H. Therefore, the parties intend for this Parks Agreement to implement the requirements of Condition Nos. 14(c) and 19 of the Project Entitlements, Government Code, Section 66477, Section 66477 of the MMC and the City’s adopted Dedication & Fee Sheet and further clarify the method by which Owner will be provided with a fee credit pursuant to Government Code, Section 66477(a)(9), establish the timing of the proposed park dedication and construction of the improvements, describe the maintenance responsibilities and to provide City and Owner with certainty while the Project is developed.

I. This Parks Agreement is not intended to increase or decrease any park obligations but instead clarify the responsibilities of the parties as approved by Resolution No. 20- 3285 for the Project Entitlements.

NOW, THEREFORE, for and in consideration of the premises and the mutual promises, covenants, conditions and restrictions herein contained, the parties hereto declare, covenant and agree as follows:

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TERMS:

1. DEFINITIONS AND INTERPRETATIONS

1.1 Defined Terms. Unless otherwise provided in this Parks Agreement, capitalized terms used herein shall have the meanings ascribed to them. The following terms shall have the respective meanings assigned to them in this Section [1.1] unless the context in which they are used clearly requires otherwise:
"Certificate of Occupancy" means a certificate or permit issued by the City, authorizing the release of utilities and occupation of the building(s) and/or a unit in the Project. "City" means the City of Montclair, California.
“City Manager” means the Montclair City Manager or his/her designee. "County" means the County of San Bernardino, California. “Development Plan” means the approved site plan, elevations and preliminary landscape plan approved by the City.
"Event of Default" shall have the meaning set forth in Article 8 of this Parks Agreement. “Park” means the park depicted on the conceptual park plan shown on Exhibit "C". "Park Improvements" means the improvements to the Park in accordance with the Conceptual Park Improvement Plan and the City-approved park construction documents. "Project" has the meaning set forth in Recital "A," above. "Property" or “Subject Site” has the meaning set forth in Recital "A," above. "Term" shall have the meaning set forth in Section 2.1. "Unit" means a dwelling unit in the Property.

1.2 Singular and Plural Terms. Any defined term used in the plural in this Parks Agreement shall refer to all members of the relevant class and any defined term used in the singular shall refer to any number of the members of the relevant class. Reference to “party” or the “parties” shall refer to both City and Owner.

1.3 Accounting Principles. Any accounting term used and not specifically defined in this Parks Agreement shall be construed in conformity with, and all financial data required to be submitted under this Parks Agreement shall be prepared in conformity with, generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to the City Manager.

1.4 References and Other Terms. Any reference to any other document shall include such document both as originally executed and as it may from time to time be modified.

References herein to Articles, Sections and Exhibits shall be construed as references to this Parks Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The term "document" is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms "including" and "include" mean "including (include) without limitation". References herein to statutes, laws, codes, MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 95 of 179 Agreement No. 22-94

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ordinances or regulations by specific number (e.g., Government Code, Section 66477) shall mean such statute, law, code, ordinance or regulation as it existed as of the date of this Parks Agreement and as it may be amended from time to time thereafter.

1.5 Exhibits Incorporated. All attachments and exhibits to this Parks Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference.

2. TERM OF AGREEMENT

2.1 Term. The term of this Parks Agreement (“Term”) shall commence on the date it is recorded in the Official Records of the County (“Effective Date”) and shall expire upon the following:

A. The Park is constructed and accepted by the City of Montclair into its park system and/or Owner conveys a grant deed conveying fee title ownership to the land and improvements constructed; and
B. The date on which the last Certificate of Occupancy is issued for any single building or unit within a building in the Project.

3. PARKLAND DEDICATION & IN LIEU FEE REQUIREMENTS

3.1 Dedication of Parkland. Owner shall offer to dedicate to City on the final map for the Project (or by separate instrument if no map is recorded), .31 acres of land to be used for park and recreational purposes in the area shown on the vicinity map attached hereto as Exhibit “B” to this Parks Agreement. Such dedication shall satisfy the parkland dedication requirements of .31 acres within the Project as required by the Project Entitlements.

3.1.1 Improvement of Park. Owner hereby further agrees to construct, at its sole cost and expense, all improvements on the Park Property for the full development of the Neighborhood Park, and to dedicate all improvements to City, the acceptance of same by City shall be subject to and in accordance with the terms of this Agreement.

3.1.2 Duty to Post Security. Within one (1) month of the Effective Date of this Agreement, Owner shall provide or require its construction contractor to provide to City, a performance and payment bond (“Performance Bond”), in the amount of $837,200, for costs identified on Exhibit "D" attached hereto and made part of this Agreement, (“Cost Estimate”) for the costs of constructing the Neighborhood Park and its improvements and to provide proof thereof to City. The Performance Bond shall guarantee the faithful performance of this Agreement.

In lieu of a bond, the Owner may provide other security acceptable to the City Engineer and the City Attorney in an amount equal to the required bond.

3.1.2.1 Form of Bond. The Performance Bond shall be in a form acceptable to the City Engineer and the City Attorney.

3.1.2.2 Bond Term. The Performance Bond shall remain in full force and effect for the term of this Agreement, and until such time as the City in writing affirmatively releases Owner from its bond obligation.

3.1.2.3 Certificate of Agency. All bonds signed by an agent must be accompanied by a certified copy of such agent’s authority to act.

3.1.2.4 Licensing and Rating. The Performance Bond shall be duly executed by responsible surety companies admitted to do business in the State of MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 96 of 179 Agreement No. 22-94

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California, licensed or authorized in the jurisdiction in which the Neighborhood Park is located to issue bonds for the limits required by this Agreement, secured through an authorized agent with an office in California, and have a minimum AM Best rating of “A-” to an amount not to exceed ten percent (10%) of its capital and surplus.

3.1.2.5 Insolvency or Bankruptcy. If the surety on any bond furnished by Owner is declared bankrupt or becomes insolvent or its right to do business is terminated in any state where the Neighborhood Park is located, Owner shall within seven (7) calendar days thereafter substitute or require the substitution of another bond and surety, acceptable to City.

3.1.2.6 Increase in Amount of Performance Bond. If, at any time, following the execution of this Agreement, the estimated costs of the Neighborhood Park are anticipated to exceed the Cost Estimate, Owner shall at City’s direction, within thirty (30) calendar days, increase the amount of the Performance Bond by the change in the Cost Estimate.

3.1.2.7 Attorney’s Fees. In the event City prevails in an action upon any bond posted, City shall be entitled to reasonable attorney’s fees to be fixed by a court.

3.1.2.8 Early Release of Bond. Any time following the execution of this Agreement, the bond for this Agreement may be released or reduced if a subsequent bond is provided for the construction of the Neighborhood Park that satisfy this Agreement, to the satisfaction of the City Engineer.

3.1.3 Within thirty (30) days following: (i) completion of the park improvements; (ii) City's issuance of a Certificate of Completion for the Park Improvements; and (iii) completion of the public improvements adjacent to the park, Owner shall provide a grant deed to City, in a form acceptable to the City Attorney, evidencing fee title ownership to the park site and park improvements thereon. All property conveyed to City pursuant to this agreement shall be free and clear of any liens, encumbrances and easements, except those easement identified in the final map. Any accrued and unpaid real property taxes, easements or special taxes shall be paid by Owner until deed has been accepted by City and fee title is transferred to City.

3.1.4 Model Units. City agrees that model units may be issued building permits and constructed prior to Owner posting the Performance Bond. The model units may only be occupied as model units, no certificate of occupancy may be issued until the Performance Bond has been posted. Prior to the issuance of building permits for the model units, Owner shall pay City the then applicable Park In-Lieu Fee for the units. The Parties agree that the Park In-Lieu Fees paid for the model units shall be credited against the remaining Park In-Lieu Fees or other fees payable to City for production units within the Project.

3.2 Payment of Park In-Lieu Fees. In addition to the offer of dedication of land and improvements to the .31-acre park, and prior to the issuance of any building permit, Owner shall pay/deposit with City the sum of $837,200 in satisfaction of required additional park in lieu fees for the construction of the remaining 299 residential units within the Project. Alternatively, Owner may establish an irrevocable letter of credit or similar security instrument given as a “set-aside” or reserve agreement (“Security Instrument”) between Owner’s construction lender, Owner and the City, in the amount of $837,200 provided such financial institution is subject to regulation by the state or federal government pledging that the funds necessary to carry out the design and construction of the park improvements are on deposit and guaranteed for payment. City shall MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 97 of 179 Agreement No. 22-94

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have the right to approve any releases of the Security Instrument, upon and subject to the provisions and conditions hereof.

Upon satisfactory written proof, including, but not limited to, consultant and contractor estimates, invoices, materials and equipment estimates, invoices and bills showing that park design and construction obligations have been incurred, and subject to the limitations contained in Section 3.3 below, City may authorize release of all or portions of the security as work progresses. Owner may make monthly applications for payment to City, and City shall endeavor to approve and authorize financial institution to pay such requests no later than ten (10) days after receipt of such request. If Owner elects to pay/deposit the park in lieu fee with the City, City shall endeavor to approve and authorize payment requests no later than ten (10) days after receipt of such request.

3.3 Reimbursement for Construction of Park Improvements. Owner has planned to design the park and construct the improvements necessary to establish the neighborhood park identified in the Specific Plan. Notwithstanding the payment of park in lieu fees or establishment of a Security Instrument with an approved financial institution required by Section 3.2, Owner shall design and construct the neighborhood park identified in Exhibit “B” in accordance with the conceptual park design plan attached hereto as Exhibit “C” (“Conceptual Plan”). Owner shall be entitled to reimbursement of park fees required to be submitted to City in Section 3.2 in an amount equal to the reasonable costs incurred in the design, construction and furnishing of facilities and equipment necessary to accept and use the neighborhood park in accordance with the Conceptual Plan and in Turnkey condition, subject to the following:
(a) No credit shall be provided for items that would not have been incurred by City, had City designed and constructed the park;
(b) No credit shall be provided for legal, insurance, security, construction management or other miscellaneous fees and costs unrelated to the direct costs of design and construction of the park;
(c) Park design costs shall be capped at 5% of the total construction costs. (d) No credit shall be provided for payment of any required City permit fees and charges, including, but not limited to, grading permits, utility permits, building permits, and certificates of completion/occupancy.
(e) Credit shall be capped at $837,200. Park design and development costs exceeding $837,200 shall be borne exclusively by Owner and City shall have no responsibility to provide credit or reimbursement to Owner beyond the in lieu payments deposited by Owner.

3.4 Approval of Final Construction Budget & Plans. City shall have the right to approve the preliminary and final construction budget and plans for the Park. All improvements provided in the Park shall be in Turnkey condition and consistent with the depictions in the Specific Plan and City codes, ordinances and policies.

3.5 Timing of Park Construction. Owner shall construct the Park and Park improvements simultaneously with the construction of the first building for which building permits are issued. Owner shall pursue development and construction of the Park diligently to completion.

In no event shall certificates of occupancy for the final building be issued until the Park has been completed.

3.6 Completion of Park Improvements and Documentation of Costs. Upon completion of the improvements and installation of facilities identified in the Conceptual Plan and final construction plans, City shall issue Owner a certificate of completion/occupancy and take MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 98 of 179 Agreement No. 22-94

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actions necessary to accept the Park in the City’s park system. City’s issuance of a certificate of completion/occupancy may be subject to completion of a list of corrective actions indicated on a “punch-list” to be created during final inspection. Owner shall diligently complete all corrective actions indicated on the punch-list until City is able to issue a certificate of completion/occupancy (“Certificate of Completion”).

Owner shall within sixty (60)days of the Completion of Construction, provide City for its review and approval, all documentation City reasonable requires to evidence the completion and final costs of the Park, reflecting as necessary the limitations in Section 3.3. City approval of that cost documentation shall constitute confirmation of the acreage required to be dedicated by Owner.

3.7 Reimbursement for Completed Improvements. Upon receipt and confirmation of the final construction costs for the Park, City shall reimburse Owner the amount of such reasonable final construction costs in an amount not to exceed $837,200. To the extent the final construction costs are less than $837,200, City shall be entitled to keep the difference and place it in City’s Quimby account for use in Parks elsewhere in the City consistent with the Quimby Act.

To the extent the final construction costs exceed $837,200, Owner shall not be entitled to any further reimbursement or credit from City.

3.8 Community Facilities District. City and Owner agree that the maintenance of the Park may be covered via inclusion of the Park in a community facilities district to be established by City and Owner prior to recordation of the final map or issuance of the first building permit, whichever occurs first. Funds collected for park maintenance shall be used solely and entirely on the Park and will not be used to cover the maintenance costs of other park facilities in the City, unless such facilities are included in the community facilities district boundaries.

3.9 Acknowledgement of Prevailing Wage Laws. Owner 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 1600, 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. Owner contends that development of the Park is not subject to the payment of prevailing wages. However, if the Park development is deemed an applicable “public works” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Owner agrees to fully comply with such Prevailing Wage Laws.

City shall provide Owner with a copy of the prevailing rates of per diem wages in effect at the commencement of this Parks Agreement at the request of Owner. Owner shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the available to interested parties upon request, and shall post copies at the Owner’s principal place of business and at the Park site. Owner shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

4. INDEMNIFICATION.

4.1 Indemnification. Owner shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions or willful misconduct of Owner, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the performance or construction of the Project or this Agreement, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. Owner shall defend, at Owner’s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 99 of 179 Agreement No. 22-94

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agents or volunteers. Owner shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Owner shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Owner’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents or volunteers. 5-6. Reserved.

7. DEFAULTS
The occurrence of any of the following, whatever the reason therefor, shall constitute an "Event of Default" by Owner:
(a) Owner fails to perform any obligation under this Agreement, and such failure is not cured within thirty (30) days after Owner's receipt of written notice that such obligation was not performed; provided that, if cure cannot reasonably be effected within such thirty (30)- day period, such failure shall not be an Event of Default so long as Owner (in any event, within fifteen (15) days after receipt of such notice) commences cure, and thereafter diligently and continuously prosecutes such cure to completion; or
(b) Owner is enjoined or otherwise prohibited by any governmental agency (other than City) from occupying all or any of the Property and such injunction or prohibition continues unstayed for ninety (90) days or more for any reason; unless Owner is diligently and continuously attempting to have such injunction or prohibition stayed or lifted and Owner demonstrates, to the reasonable satisfaction of the City Manager, that such stay or lifting will occur within a reasonable time.

8. REMEDIES

8.1 Remedies Upon Default. Upon the occurrence of any Event of Default, City may, at its option and in its absolute discretion, do any or all of the following:
(a) Specific Performance. By mandamus or other suit, action or proceeding at law or in equity, require Owner to perform its obligations and covenants hereunder or enjoin any acts or things which may be unlawful or in violation of the rights of City hereunder (b) Exercise Other Rights. Exercise any other rights provided by law or in such order and manner as City elects in its sole and absolute discretion. (c) Terminate Agreement. Terminate this Parks Agreement. Termination in such event shall be effective immediately upon Owner's receipt of written termination notice from City. No act by City other than giving notice to Owner shall terminate this Parks Agreement. In the event of such a termination, any rights or remedies for breach of this Parks Agreement shall survive.

8.2 Cumulative Remedies; No Waiver. City's rights and remedies under this Parks Agreement are cumulative and in addition to all rights and remedies provided by law. The exercise by City of any right or remedy shall not constitute a cure or waiver of any default, nor invalidate any notice of default or any act done pursuant to any such notice, nor prejudice City in the exercise of any other right or remedy. No waiver of any default shall be implied from any omission by City to take action on account of such default if such default persists or is repeated.

No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 100 of 179 Agreement No. 22-94

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provision of this Parks Agreement shall be construed as a waiver of any subsequent breach of the same provision. City's consent to or approval of any act by Owner requiring further consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act. City's acceptance of the late performance of any obligation shall not constitute a waiver by City of the right to require prompt performance of all further obligations.

City's acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of City's right to proceed with the exercise of its remedies for any unfulfilled obligations; and City's acceptance of any partial performance shall not constitute a waiver by City of any rights relating to the unfulfilled portion of the applicable obligation. City shall have the right to pursue damages for Owner’s defaults but in no event shall Owner be entitled to damages of any kind from City, including, but not limited to, damages for economic loss, lost profits, or any other economic or consequential damages of any kind or nature.

9. COVENANTS TO RUN WITH THE LAND
Owner hereby subjects the Property to the covenants, reservations and restrictions set forth in this Agreement. City hereby declares its express intent that the covenants, reservations and restrictions set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon Owner's successors in interest to all or any part of the Property; provided, however, that on the termination of this Agreement said covenants, reservations and restrictions shall expire. Each and every contract, deed or other instrument hereafter executed covering or conveying all or any part of the Property, or any interest therein, shall conclusively be held to have been executed, delivered and accepted subject to such covenants, reservations and restrictions, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instruments.

10. MECHANIC’S LIEN RELEASES.

Owner understands and agrees that no acceptance of the parkland improvements and facilities will be provided by City, pursuant to Section 3.6 above, until Owner has furnished Mechanic’s Lien Releases in proper statutory form signed by all contractors and sub-contractors of any tier, material suppliers who have performed work or furnished materials to the job site, releasing all lien rights for work performed and materials furnished through the date of final inspection. Should any claim, lien or Stop Notice be provided, filed or recorded for any work or labor performed or materials used on, furnished to, the Property described in this Agreement, Owner shall pay and satisfy such lien or judgment.

11. UNIFORMITY; COMMON PLAN
The covenants, reservations and restrictions hereof shall apply uniformly to the Property in order to establish and carry out a common plan for the use, development and improvement of the Property.

12. MISCELLANEOUS

12.1 Governing Law. This Parks Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.

12.2 Amendments. This Parks Agreement shall be amended only by a written instrument executed by the parties hereto or their successors in title, and duly recorded in the Official Records.

12.3 Notice. All notices, certificates or communications shall be sufficiently given and shall be deemed given on the second day following the date on which the same have been MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 101 of 179 Agreement No. 22-94

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personally delivered or mailed by certified mail, return receipt requested, postage prepaid, addressed as follows:

If to Owner CRP/VP Montclair Village Owner, L.L.C
4340 Von Karman Avenue, Suite 140
Newport Beach, CA 92660
If to City: Mikey Fuentes
Economic Development Director
5111 Benito Street
Montclair, CA 91763
with a copy to: City of Montclair
City Attorney
5111 Benito Street
Montclair, CA 91763
Any of the foregoing persons may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or communications shall be sent.

12.4 Severability. If any provision of this Parks Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby.

12.5 Multiple Counterparts; Recordation. This Parks Agreement may be simultaneously executed in multiple counterparts, all of which shall constitute one and the same instrument, and each of which shall be deemed to be an original. Once executed, this Parks Agreement shall be recorded in the Office of the County Recorder.

12.6 Construction of Titles. The captions, headings and titles of the sections of this Parks Agreement have been inserted for convenience of reference only, and are not to be considered a part hereof and shall not in any way modify or restrict any of the terms or provisions hereof or be considered or given any effect in construing this Parks Agreement or any provisions hereof or in ascertaining intent, if any question of intent shall arise.

12.7 No Partnership with City. Owner is, and shall be deemed to be, an independent contractor and is not an employee of City and shall not become an agent of City.

12.8 Attorney's Fees. In case any action at law or in equity, including an action for declaratory relief, is brought against Owner to enforce the provisions of this Parks Agreement, the losing party agrees to pay reasonable attorney's fees and other reasonable expenses incurred by the prevailing party.

12.9 Successors and Assigns. The terms and provisions of this Parks Agreement bind and benefit the heirs, legal representatives, successors and assigns of the parties.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 102 of 179 Agreement No. 22-94

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IN WITNESS WHEREOF, City and Owner have executed this Parks Agreement by duly authorized representatives, all on the date first written hereinabove. “OWNER"
CRP/VP Montclair Village Owner, LLC.,
Delaware limited liability company
By:

Name:

Its:

Date:
“CITY”
CITY OF MONTCLAIR, a California municipal
corporation
By:

Javier “John” Dutrey
Mayor
Date:

ATTEST:

By:

Andrea Myrick
City Clerk
Date:

APPROVED AS TO FORM:

By:

Diane E. Robbins
City Attorney
Date:

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 103 of 179 EXHIBIT "A"

LEGAL DESCRIPTION
Agreement No. 22-94 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 104 of 179

LEGAL DESCRIPTION
APN: 10007-701-01

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF

MONTCLAIR IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL(S) 1 THROUGH 6, INCLUSIVE, OF TRACT MAP NO. 20273, IN THE CITY OF MONTCLAIR, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 363, PAGES 54-57 OF MAPS, RECORDS OF SAN BERNARDINO COUNTY, CALIFORNIA.

Agreement No. 22-94 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 105 of 179 EXHIBIT "B"

VICINITY MAP
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Agreement No. 22-94 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 107 of 179 EXHIBIT "C"

CONCEPTUAL PLAN
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Agreement No. 22-94 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 109 of 179 EXHIBIT "D"

CONSTRUCTION ESTIMATE
Agreement No. 22-94 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 110 of 179 CDR 7/20/2022
695 Town Center Drive, Suite 110
Costa Mesa CA, 92626
(949) 610-8997
Item # Description Unit Total
1 CONSTRUCT PCC CURB (6" HEIGHT) AND GUTTER (1.5' WIDE) 573 LF $30.00 $17,190.00 2 CONSTRUCT LOCAL DEPRESSIONS AT CATCH BASINS 2 EA $500.00 $1,000.00 3 GRADING 13547 SF $2.67 $36,125.76
4 INSTALL TRUNCATED DOMES (DETECTABLE WARNING) 60 SF $24.00 $1,440.00 5 SIGNAGE 1 LS $2,100.00 $2,100.00
6 INSTALL CURB INLETS 2 EA $5,200.00 $10,400.00
7 INSTALL AREA DRAINAGE 13547 SF $1.76 $23,843.00
8 INSTALL LANDSCAPING INLET DRAINS 7 EA $225.00 $1,575.00 9 INSTALL FOUNTAIN 1 EA $125,000.00 $125,000.00
10 INSTALL LANDSCAPING & IRRIGATION 7,710 SF $27.95 $215,475.00 11 INSTALL SIDEWALK 3,438 SF $10.00 $34,380.00
12 INSTALL HARDSCAPE PAVERS & CONCRETE WALLS 2,152 SF $61.33 $131,989.20 13 INSTALL STREET LIGHTS 4 EA $16,690.00 $66,760.00
14 ELECTRICAL 13547 SF $2.62 $35,493.56
15 INSTALL ASPHALT 573 LF $16.20 $9,282.60
16 INSTALL MISC EQUIPMENT 1 LS $6,500.00 $6,500.00
17 INSTALL BENCHES 2 EA $2,400.00 $4,800.00
SUBTOTAL $723,354.12
1 GENERAL CONDITIONS & REQUIREMENTS, INSUR, CONTINGENCY & FEE $214,836.17 2 DESIGN 5.00% $36,167.71
3 INSPECTIONS 1.25% $9,041.93
SUBTOTAL $260,045.81
SUBTOTAL $983,399.93
1 LAND COST 13547 SF $40.00 $541,886.40
TOTAL $1,525,286.33
The Village at Montclair Central Park Cost Estimate
Street
Agreement No. 22-94 MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 111 of 179

CITY COUNCIL

AGENDA REPORT
DATE: SEPTEMBER 19, 2022
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 5
FILE I.D.: EDD100
DEPT.: ECONOMIC DEV.

PREPARER: M. FUENTES
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 22–95 WITH UNIVERSITY ENTERPRISES

CORPORATION AT CALIFORNIA STATE UNIVERSITY SAN BERNARDINO TO PROVIDE

TECHNICAL ASSISTANCE AND OUTREACH SERVICES TO SMALL BUSINESSES, SUBJECT

TO ANY REVISIONS DEEMED NECESSARY BY THE CITY ATTORNEY
REASON FOR CONSIDERATION: The City Council is requested to consider approval of Agreement No. 22–95 with University Enterprises Corporation at California State University San Bernardino to provide technical assistance and outreach services to small businesses.

A copy of proposed Agreement No. 22–95 with University Enterprises Corporation at California State University San Bernardino is attached for City Council review and consideration.

BACKGROUND: The University Enterprises Corporation at California State University San Bernardino (UEC) is a 501(c)(3) nonprofit corporation that provides a vast array of technical assistance to small businesses and aspiring entrepreneurs throughout the Inland Empire and functions as the business enterprise center for California State University San Bernardino (CSUSB).

UEC serves as the grantee for federal, state, and local funding for research and sponsored projects for CSUSB.

UEC partners with the Inland Empire Center for Entrepreneurship, California State University San Bernardino (Small Business Development Center, Women’s Business Development Center, and Inland Center for Entrepreneurship CSUSB), California State University San Bernardino, America’s Small Business Development Center, and United States Small Business Administration.

Montclair, Montclair Place, UEC Partnership
Staff was recently approached by UEC regarding the possibility of entering into a partnership with the City of Montclair to provide technical assistance to small businesses and aspiring entrepreneurs in the Montclair community.

As part of UEC conversations with City Staff, UEC noted that they were also in conversations with representatives from Montclair Place regarding the possibility of partnering with Montclair Place to locate one of their satellite offices there.

UEC anticipates operating a Small Business Development Center, a Women's Business Development Center, and the Inland Center for Entrepreneurship at Montclair Place.

UEC asked if the City of Montclair would be willing to provide monetary assistance that could be used to leverage additional state and federal funding sources to offsets costs MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 112 of 179 associated with running the satellite office at Montclair Place and administrative costs.

UEC noted that Montclair Place would be willing to provide UEC with a lease space without cost as part of Montclair Place's partnership with UEC. Staff responded that the City of Montclair would be interested in partner with UEC in order to further provide technical assistance and outreach services to small businesses located in Montclair.

Agreement No. 22–95
Agreement No. 22–95 would provide funding to the UEC for providing technical assistance to small businesses and aspiring entrepreneurs in the Montclair community.

Below is a list of services that will be provided by UEC as part of the proposed agreement.  Provide technical assistance related to business planning, loan proposals, finance, bookkeeping, taxes and licenses, marketing, management, human resources, and government procurement procedures.
 Advise and counsel businesses about:
o Business plan development, start–up requirements, business management, and expansion strategies;
o Marketing, advertising, financial analysis, and human resources management;
o Government procurements, funding sources, resources referrals, patents, trademarks, and copyrights; and
o Loan applications, buying and selling a business, franchising, and social media and internet marketing.
 Provide for the support and nurturing of businesses and the development of an entrepreneurial environment through cooperation with other local, county, state, and federal economic development organizations.

The University Enterprises Corporation at California State University San Bernardino (UEC)
UEC provides no–cost extensive long–term professional business advising, low–cost training, and other specialized services to local businesses and residents.

Beyond its core services, the UEC provides specialized assistance in QuickBooks, franchise and service–based operations, government contracting, website search engine optimization, and securing funding from both traditional and nontraditional sources.

UEC staff members include certified QuickBooks ProAdvisors who can assist businesses with accounting systems, marketing specialists who can help businesses attract new clients and increase sales, loan consultants with lending preference knowledge, tax specialist for personnel, self–employment, etc., and procurement specialists who can help business bid on local, state, and federal solicitations.

UEC partners with the Economic Development Departments of San Bernardino and Riverside Counties, and the Cities of Chino, Hesperia, Moreno Valley, Rancho Cucamonga, Riverside, San Bernardino, Victorville, and Upland. UEC is also currently negotiating agreements with several other surrounding agencies.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 113 of 179 FISCAL IMPACT: Proposed Agreement No. 22–95 with UEC would result in a cost to the City of Montclair of $25,000, with the term of the agreement ending on June 30, 2023.

Costs associated with Agreement No. 22–95 would be payable from the Economic Development Fund.

RECOMMENDATION: Staff recommends that the City Council approve Agreement No. 22–95 with the University Enterprises Corporation at California State University San Bernardino to provide technical assistance and outreach services to small businesses, subject to any revisions deemed necessary by the City Attorney.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 114 of 179

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AGREEMENT NO. 22–95

CITY OF MONTCLAIR
5111 BENITO STREET
MONTCLAIR, CALIFORNIA 91763

ECONOMIC DEVELOPMENT AGREEMENT
THIS ECONOMIC DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this 19th day of September, 2022, by the City of Montclair, hereinafter referred to as the "CITY," and University Enterprises Corporation at CSUSB, hereinafter referred to as “UEC”, for itself and on behalf of Inland Empire Small Business Development Center, hereinafter referred to as the "IESBDC."

1. RECITALS
a. The parties hereto agree that it is the best interest of the CITY and the UEC to provide business-related technical assistance to residents and business owners within the CITY and the UEC through an Agreement renewed annually by the close of each current fiscal year.
b. The parties hereto agree that all funding provided by the CITY for this venture will be expended to fulfill a public purpose, that is economic development, and that periodic auditing will be performed in order to assure that the funds provided by the CITY will be utilized only for public purposes as set forth herein.

2. AGREEMENT
a. NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties here to agree as follows:

ARTICLE 1 – RECITALS
The parties acknowledge and agree that above state recitals are true and correct and incorporated herein by reference.

ARTICLE 2 – SERVICES
The IESBDC desires to engage in economic development efforts for the CITY which shall include, but are not limited to, the following:
a. Provide technical assistance related to business planning, loan proposals, finance, bookkeeping, taxes and licenses, marketing, management, human resources, and government procurement procedures.
b. Provide business seminars and workshops to residents and businesses. c. Monitor and aid in the retention, expansion and development of existing businesses.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 115 of 179 AGREEMENT NO. 22–95

Page 2 of 5 ends

d. Advise and counsel businesses about business plan development, start-up requirements, business management, and expansion strategies. e. Advise and counsel businesses related to marketing, advertising, financial analysis, and human resources management.
f. Advise and counsel businesses related to government procurements, funding sources, resources referrals, patents, trademarks, and copyrights. g. Advise and counsel businesses related to loan applications, buying and selling a business, franchising, and social media and internet marketing. h. Provide for the support and nurturing of businesses and the development of an entrepreneurial environment through cooperation with other local, county, state, and federal economic development organizations.

ARTICLE 3 – PLACE OF WORK
It is understood that the IESBDC will administer services largely at 5060 N Montclair Plaza Lane, Montclair, California 91763; although the IESBDC will, on request, come to City Hall or such other places as designated by the CITY to meet with CITY's representatives.

ARTICLE 4 – PAYMENT
The CITY will pay the UEC the total sum of $25,000 annually payable in equal quarterly payments of $6,250 on or before the 30th day of the beginning of each quarter.

ARTICLE 5 – REPORTING
a. The UEC will submit and present to the CITY annually a receipt and expenditure report on the use of CITY funds.

ARTICLE 6 – RELATIONSHIP OF PARTIES
a. The UEC is an independent entity and not a department, agency or subdivision of the CITY. The CITY and the UEC are two separate and autonomous entities.
b. UEC is and shall at all times remain as to the CITY a wholly independent contractor. The personnel performing the services under this Agreement on behalf of UEC shall at all times be under UEC's exclusive direction and control and shall not be construed to be employees of CITY for any purpose, including eligibility under Public Employees Retirement Law. Neither CITY nor any of its officers, employees, or agents shall have control over the conduct of UEC or any of UEC's officers, employees, or agents, except as set forth in this Agreement. UEC shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the CITY. UEC shall not incur or have the power to incur any debt, obligation, or liability whatever against CITY, or bind CITY in any manner. No employee benefits shall be available MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 116 of 179 AGREEMENT NO. 22–95

Page 3 of 5 ends

to UEC in connection with the performance of this Agreement. Except for the fees paid to UEC as provided in the Agreement CITY shall not pay salaries, wages, or other compensation to UEC for performing services hereunder for CITY. CITY shall not be liable for compensation or indemnification to UEC for injury or sickness arising out of performing services hereunder.
c. The CITY and the UEC acknowledge that this Agreement is not a delegation of any public function of the CITY and that neither party will play an integral part in either party's decision–making process by reason of this Agreement.

ARTICLE 7 – DURATION
a. The initial term of this Agreement shall be for a period of one (1) year commencing September 1, 2022, and continuing through June 30, 2023; this AGREEMENT may be renewed annually.
b. Either party may terminate this Agreement upon ninety (90) days written notice to the other party.
c. Any notice required or allowed hereunder shall be in writing and sent by certified mail, return receipt requested, or in person with proof of delivery, to the address first listed above, or such other addresses as either party shall have specified by written notice to the other party delivered in accordance herewith.

ARTICLE 8 – NONDISCRIMINATION
a. The UEC shall not discriminate against any employee or person served under this Agreement on account of race, color, sex, age, religion, ancestry, national origin, handicap, or marital status or as otherwise prohibited by applicable law.

ARTICLE 9 – MISCELLANEOUS
a. The UEC acknowledges that the CITY, during any fiscal year, shall not expend money, incur any liability, or enter into any agreement which, by its terms, involves the expenditure of money in excess of the amounts budgeted or the reduction of revenues for those budgeted agreements that may be available for expenditure during such fiscal year. Any agreement, verbal or written, made in violation of this subsection is null and void; and no money may be paid on such agreement. Nothing herein contained shall prevent the making of agreement for a period of exceeding one year, but any agreement so made shall be executed only for the value of the services to be rendered or agreed to be paid for in succeeding fiscal years. Accordingly, the CITY's performance and obligation to pay under this Agreement is contingent upon annual appropriation.
b. The UEC shall obtain and possess throughout the term of this Agreement all licenses and permits applicable to its operations under federal, state, and MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 117 of 179 AGREEMENT NO. 22–95

Page 4 of 5 ends

local laws.
c. The UEC shall at all times maintain its status as a private not–for–profit corporation, organized and created under the laws of the State of California. d. This Agreement may be modified or amended by mutual written agreement of the parties, duly executed by both parties.
e. This Agreement contains all the terms and conditions agreed upon by the parties.
f. This Agreement shall be governed and construed in accordance with the laws of the State of California. The venue of any legal action to enforce or interpret this Agreement shall be in San Bernardino County, California. g. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and assigns. h. In the event any provision of this Agreement shall be held invalid or unenforceable by a court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. i. If any party seeks to enforce or interpret this Agreement through litigation, each party shall bear its own attorney's fees and costs incurred. j. Each person executing this Agreement warrants that he or she has the authority to so execute this Agreement and that no further approval of any kind is necessary to bind the parties hereto.
k. The UEC shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its services pursuant to this Agreement. The UEC shall at all times observe and comply with all such laws and regulations. The CITY and its officers and employees, shall not be liable at law or in equity occasioned by failure of the UEC to comply with this Section.
l. No member, officer, or employee of City, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the economic development activities during his/her tenure or for one year thereafter, shall have any interest, direct or indirect, in any agreement or subagreement, or the proceeds thereof, for work to be performed in connection with the activities performed under this Agreement. m. UEC agrees to defend, indemnify, and hold harmless the CITY, its officers, employees, agents, and volunteers from any and all liabilities for injury to persons and damage to property arising out of any act or omission of UEC, its officers, employees, agents, or volunteers in connection with UEC's performance of its obligations under this Agreement. . UEC shall not be liable for any acts or omissions of CITY, its officers, employees, agents and volunteers.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 118 of 179 AGREEMENT NO. 22–95

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written.
"CITY" “UEC”
City of Montclair University Enterprises Corporation
5111 Benito Street California State University, San Bernardino Montclair, CA 91763 5500 University Parkway
(909) 626–8571 San Bernardino, CA 92407
By: By:

Javier John Dutrey Diane Trujillo, MPA
Mayor Sponsored Programs
Administration Director
Date: Date:

ATTEST:

Andrea M. Myrick
City Clerk
MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 119 of 179

CITY COUNCIL

AGENDA REPORT
DATE: SEPTEMBER 19, 2022
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 6
FILE I.D.: PER825
DEPT.: ADMIN. SVCS.

PREPARER: M.RICHTER
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 22–96 WITH THE INTERNATIONAL

LANGUAGE SCHOOL FOR CHILDREN & ADULTS (ILSCA) FOR LANGUAGE TESTING

SERVICES
REASON FOR CONSIDERATION: The City Council is requested to consider approval of proposed Agreement No. 22–96 with the International Language School for Children & Adults for language testing services, a copy of which is attached for the City Council’s review and consideration.

BACKGROUND: The City has a bilingual pay program for qualifying employees who complete their probation period and/or an oral and written examination. Any positions for which the recruitment specifies bilinguality as a requirement would also necessitate a language assessment for the chosen candidate.

The International Language School for Children & Adults (ILSCA) is a local language school that operates at Pitzer College in Claremont, providing language courses to children, high school students, and adults in the Inland Empire and Los Angeles area.

The language courses and assessments offered include Spanish, Chinese, Japanese, German, Italian, French, Portuguese, American Sign Language, and English.

ILSCA may provide a live audio interpretation assessment at ILSCA, and/or a written assessment administered at City Hall through the Personnel Division. Completed exams would be submitted to ILSCA for scoring.

FISCAL IMPACT: The fiscal impact would be minimal because this service will likely be rarely used. The live audio interpretation assessment will cost $60, and the written assessment will cost $90 per candidate. Funds to cover the cost of this service are included in the Personnel/Risk Management, Personnel Testing section of the Administrative Services Department Budget for Fiscal Year 2022–23.

RECOMMENDATION: Staff recommends the City Council approve Agreement No. 22– 96 with ILSCA for language testing services.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 120 of 179 Agreement No. 22–96

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International Language School For Children & Adults
Language Testing Agreement
This Language Testing Agreement is effective as of September 20, 2022 , by and between City of Montclair, having an address of 5111 Benito Street, Montclair, CA 91763 (Customer) and International Language School For Children & Adults, having an address of 1050 North Mills Avenue, Claremont, CA 91711 (ILSCA). ILSCA and collectively with Customer, is the “Party” or “Parties”.

Customer has requested that ILSCA provides certain services for the Customer related to language testing and ILSCA desires to provide these services, subject to the term and conditions set below.

1. Services to be Provided – ILSCA will provide Customer with any language testing Service(s) as set forth in Exhibit A. Exhibit A is attached and incorporated into this Agreement by reference. It is understood that Customer will determine the services to be provided and will request the services when necessary. The term “Services” in this Agreement means all the services described in Exhibit A.

2. Fees and Billing Procedures – Customer shall pay ILSCA for Services rendered no later than thirty (30) days after receipt of an invoice from ILSCA. Fees are described in Exhibit B. In the event either Customer or ILSCA terminates this Agreement in accordance with Section 3 below, ILSCA shall be entitled to the service fees and all other fees, charges and expenses incurred or accrued up to the date that the termination is effective.

3. Term and Termination – The term of this Agreement shall be one year from the Effective Date and shall be automatically renewed for additional one-year terms unless terminated for any reason or no reason upon thirty (30) days’ notice by either the Customer or ILSCA. In the event of termination, this Agreement will continue to govern the Customer and ILSCA rights and obligations with respect to Services performed prior to termination. Customer may continue to request, and ILSCA shall continue to provide, Services during the period after receipt of the notice of terminating and prior to the Termination Date. During such period between the notice and the Termination Date, the Customer and ILSCA shall comply with all duties and obligations in this Agreement with respect to the Services to be provided by ILSCA prior to the Termination Date. After the Termination Date, the Customer and ILSCA shall have no further rights or obligations under this Agreement. Within thirty (30) days following the Termination Date, ILSCA shall invoice Customer for all outstanding Service Fees and other fees, charges and expenses incurred prior to the Termination Date. Notwithstanding the foregoing, upon the material breach of this Agreement by either the Customer or ILSCA, the other party may terminate this Agreement in writing to be effective immediately.

MONTCLAIR CITY COUNCIL MEETING – 09/19/2022 Page 121 of 179 Agreement No. 22–96

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Montclair City CouncilSeptember 19, 2022

Montclair City Council
September 19, 2022